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The Supreme Court Will Decide If the Lethal Injections It Didn't Stop Were Legal

A week too late, perhaps.
​Image: ​Wikimedia

After the Supreme Court rejected a stay of execution for Oklahoma inmate Charles Warner, which was requested so that it could examine whether the state's lethal injection protocol was constitutional, Warner was executed. Now, somewhat bizarrely, a week after Warner's execution, the court is going to look at whether executions that use the drug midazolam as the anesthetic are constitutional.

"Petitioners are pleased that the Supreme Court will review their case," Dale Baich, an attorney representing three of Oklahoma's death row inmates, said in a statement. "The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly."

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Baich told me that last week, the stay was rejected, but the writ of certiorari has now been considered and granted. So, the Supreme Court won't step in to determine if an execution method is constitutional, until after an execution.

Here's the first question Baich and the legal team is asking the Supreme Court:

"Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious."

Regardless of how you feel about the death penalty or Warner (who was executed for raping and murdering an eleven-month-old girl) this seems really irresponsible by the court. To say, essentially: "That's a very interesting question. Go ahead and do that irreversible action, and we'll see if it was constitutional afterwards." If there's a question in their mind, why allow the execution to happen?

Baich's statement says, "the time is right for the Court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols."

It seems like the time was right a while ago.