<< News Scan | Main | Can the Right to Counsel Be Forfeited? >>

SCOTUS Issues Midazolam-Only Stay At State's Request

And now, for something completely different.

The U.S. Supreme Court gets stay-of-execution requests from death row inmates all the time.  Typically they have been denied without dissent or comment, since the obstinate Justices Brennan and Marshall retired.  Denials with a dissent noted happen occasionally, and every once in a while one is granted.  What I have never seen before, though, is a stay requested by the state.

January 14, Oklahoma executed Charles Warner, even though four Justices voted for a stay of execution, as noted in this post.  January 23, the Supreme Court took up for full briefing and argument the case of the remaining three inmates on that petition, challenging the state's use of midazolam as the first drug of the three-drug protocol, as noted in this post.

Rather than wait for a stay to be granted for the remaining inmates, Oklahoma Attorney General Scott Pruitt took the unusual step of asking for a stay himself, asking for it to be tailored to stay only executions with the controversial midazolam, not the conventional pentobarbital or thiopental, if the state can get any.  Today the Court issued that order.
The Attorney General's press release is here and application is here.  The application contains this notable paragraph (bold face added):

However, the State of Oklahoma continues its search for sodium thiopental and pentobarbital for use in its executions. These two drugs have been previously approved for use in executions, see, e.g., Baze v. Rees, 553 U.S. 35 (2008) (sodium thiopental); Pavatt v. Jones, 627 F.3d 1336 (10th Cir. 2010), cert. denied, __U.S.__, 131 S. Ct. 974 (2011) (pentobarbital); Wackerly v. Jones, 398 Fed. Appx. 360 (10th Cir. 2010) (sodium thiopental); Hamilton v. Jones, 472 F.3d 814 (2007), cert. denied, 549 U.S. 1158 (2007) (sodium thiopental), and ODOC would use those drugs in favor of midazolam were those drugs in its possession. Notably, ODOC's current protocol allows for the use of sodium thiopental, pentobarbital or midazolam to carry out executions. See Attachment D to Execution of Offenders Sentenced to Death dated 9/30/2014, ODOC Execution Procedures (OP-040301).1
1.  Available at www.ok.gov/doc/documents/op040301.pdf and www.ok.gov/doc/documents/040301ad.pdf).
The entire problem is the obstruction of the supply chain for the drugs of choice by opponents of the death penalty.  The blame for any pain suffered in executions using midazolam instead, if there is any, is entirely on their shoulders.  The solution is to break the dam.

In my view, the Attorney General did the right thing in seeing that a stay of some kind was going to happen and affirmatively asking for the stay to shaped in the way that caused the least damage.  If Oklahoma can obtain pentobarbital, it does not need to go back to the Supreme Court but can proceed immediately.

Leave a comment

Monthly Archives