US top court to weigh key lethal injection case

The US Supreme Court is on Wednesday set to consider the constitutionality of a controversial lethal injection technique, in a key case that could have broader implications for capital punishment in America.

The court is considering the issue just seven years after "Baze vs. Rees," in which it ruled that lethal injection did not violate the Eighth Amendment's protection against "cruel and unusual" punishment.

But a lot has changed in the meantime. The companies that produce the drugs most commonly used in lethal injections, many of them European, now refuse to supply them if they are to be used in executions.

Shortages have prompted officials in 32 states where the death penalty is in force to come up with new lethal "cocktails" suspected of causing pain and suffering during some recent executions.

"Given the lack of transparency, it's not surprising we saw three badly botched executions just in 2014," lethal injection expert Megan McCracken said.

The case now before the Supreme Court is being brought by three death-row inmates in Oklahoma, who are challenging an untested triple combination of drugs -- known as a "three-drug protocol" -- used in earlier botched executions.
Last April, Oklahoma death row inmate Clayton Lockett took an agonizing 43 minutes to die and could be seen writhing in pain during the prologed execution.

On January 16, 2014, Ohio inmate Dennis McGuire took 26 minutes to die, and Arizona death row convict Joseph Wood took 117 minutes to die on July 23.

Lethal injection executions are expected to take 10 minutes, and in all three cases, the men could be seen gasping for air.

Executioners had used midazolam, a sedating drug that is sometimes used before surgery.

The court must now decide whether the drug fully sedates inmates to ensure they do not feel pain from the other drugs used to paralyze and kill them.

Some experts, including anesthetist David Waisel, have warned that midazolam might not put a person into a "deep coma state."

Dale Baich, a lawyer for the plaintiffs, said botched executions were to be expected "in this climate of unchartered territory."

"They arose in an environment of experimentation and inadequate care by state officials with no scientific oversight," Baich said.

The question before the court is whether the three-drug protocol "could cause severe pain and suffering... where the first drug has no pain-relieving properties and cannot reliably produce a deep, coma-like unconsciousness."

- 'Intolerable harm' -

The plaintiffs in the case, Richard Glossip, Benjamin Cole and John Grant, say the execution method carries an "intolerable risk of harm."

But Oklahoma will argue that a large dose of midazolam produces a deep unconsciousness that renders one unable to feel "even extremely painful stimuli."

New York Law School professor and death penalty advocate Robert Blecker said he is not too concerned about the possibility of pain.

"Should Benjamin Cole feel some pain, I must admit it wouldn't concern me greatly. It's human nature to say someone who murdered his nine-month-old daughter by snapping her spine in half... the remote possibility that they might feel pain is not something we really care about," he told AFP.

Strictly speaking, the Supreme Court is only supposed to rule on Oklahoma and possibly the other states using midazolam or are planning to do so.

But "the court always has the opportunity to get broader if they want to," said Deborah Denno, a professor at the Fordham University School of Law.

"If they want to make a broader statement about lethal injection, they can use this case as a vehicle for doing that," Denno said.

Should the Supreme Court rule against it, Oklahoma already has a backup for executions, as it has approved death by nitrogen gas.

Denno noted that it was unusual for the court to consider a second lethal injection case in seven years.

"It doesn't help the death penalty that the court is looking at this case," she said. "The court thinks there's some problems there."

John Marshall Law School professor Steven Schwinn said that while the case "does not test the death penalty itself, the court's ruling will, as a practical matter, put a heavy thumb on the scale either for or against the death penalty."