The Supreme Court of the United States agreed January 23, 2015, to review the appeal of three death row inmates challenging Oklahoma’s lethal injection protocol, specifically its use of midazolam. This announcement came only eight days after the Court denied requests for stays of execution from the three inmates, and a fourth who was executed later that same day.  The Court decided to stay the executions January 28, but only to the extent that midazolam may not be used. The Court will hear Glossip v. Gross in late April, almost exactly one year after Oklahoma’s botched execution of Clayton Lockett on April 29, 2014.
Oklahoma executed Charles Warner January 15, 2015, the same day his petition to stay the execution was denied by the Supreme Court. Warner was the first inmate executed by Oklahoma since the “botched” execution of Clayton Lockett that occurred on April 29, 2014. Both Warner and Lockett challenged Oklahoma’s “secrecy law” in January of 2014, arguing that they had a constitutional right to know what drugs would be used to kill them. Lockett’s execution lasted almost 45 minutes and caused him to thrash and speak while he was unconscious. The state attributed these issues to vein complications, which prevented the drugs from being delivered properly throughout Lockett’s body. Warner’s execution was scheduled just two hours after Lockett’s, but the execution was stayed by the governor after the Lockett incident.
When Warner was finally executed after an eight month delay, he made statements during the execution that generated more uncertainty regarding the use of midazolam. Warner exclaimed “it feels like acid” when the saline was injected into his arm, and “my body is on fire” after the first drug midazolam, a sedative, was administered. It is unclear whether Warner’s statements during his eighteen minute execution were authentic, or whether they were purposeful.
These were just two of the several “abnormal” executions that occurred in the last year involving the use of midazolam, the drug being reviewed by the Supreme Court. The controversy surrounding midazolam began in early 2011 when states started scrambling to obtain lethal injection drugs after pharmaceutical manufacturer Hospira announced it would no longer manufacture Pentothal, the brand name of another sedative sodium thiopental. Pentothal was used by thirty-four of the thirty-five states that engaged in capital punishment before Hospira’s announcement. Hospira made the announcement after the Italian government condemned shipping of the product to the United States to be used in executions manufacturing plant located in Italy. This shortage caused some states to switch to using midazolam as a sedative, or to compounded drugs from pharmacies.
Both midazolam and Pentothal are used to sedate the inmates and reduce the pain of the subsequent drugs used to either induce paralysis or cease cardiac functioning. The challenge to midazolam, which will be heard by the Supreme Court, argues that the drug is unable to induce the coma-like unconsciousness necessary to prevent pain and suffering during the execution. The Supreme Court has decided to stay the executions of the three Oklahoma inmates, as well as that of Lester Bower of Texas, until it makes a ruling on the case.
Although there are many other issues surrounding the death penalty, such as its cost to the corrections system, its efficacy as a deterrent, or the moral basis of ending a person’s life as retribution for their own crimes, the most basic issue underlying this controversy is whether we can effectively kill these persons to begin with. It seems paradoxical that hundreds of Americans manage to kill themselves with pharmaceuticals on a daily basis, yet several states struggle to adequately execute a few individuals in a highly regimented fashion. Another issue yet to be discussed by the Supreme Court is the confidentiality protocols by states regarding the anonymity of the manufacturers and source details of their lethal drugs. It remains to be decided whether inmates in Oklahoma will have the right to know what drugs will be used to kill them.
The executions of the three Oklahoma inmates are stayed until the Supreme Court makes a decision on the case, but only insofar as the execution may not utilize midazolam, the inmates may still be executed if other drugs are used.
Joseph Gregorio is a second year law student at DePaul University College of Law. He graduated magna cum laude from Western Illinois University in 2013. He is a member of DePaul’s Health Law Institute.
 Lyle Denniston, Court to rule on lethal-injection protocol, SCOTUSblog(Jan. 23, 2015, 4:23 PM), http://www.scotusblog.com/2015/01/court-to-rule-on-lethal-injection-protocols/
 Lyle Denniston, Oklahoma executions put off, SCOTUSblog (Jan. 28, 2015, 2:58 PM), http://www.scotusblog.com/2015/01/oklahoma-executions-put-off/
 Warner v. Gross, No.14-6244, 2015 U.S. App. LEXIS 551, (10th Cir. Jan. 12, 2015), cert. granted sub nom. Glossip v. Gross.
 Denniston Executions Put Off, supra.
 Matt Pearce et al., Oklahoma Halts Double Execution After One is Botched, L.A. Times (Apr. 29, 2014, 10:30), http://www.latimes.com/nation/nationnow/la-na-nn-oklahoma-execution-20140429-story.html#axzz30NTC6FT5&page=1.
 Sean Murphy, ‘It Feels Like Acid.’ Charles Warner’s Final Words Stir Execution Questions, Huffington Post, (Jan. 17, 2015), http://www.huffingtonpost.com/2015/01/17/charles-warner-last-words_n_6492144.html.
 Press Release, Hospira Inc., Hospira Statement Regarding Pentothal™ (sodium thiopental) Market Exit (Jan. 21, 2011), http://phx.corporate-ir.net/phoenix.zhtml?c=175550&p=irol-newsArticle_print&ID=1518610.
 Erik Eckholm & Katie Zezima, States Face Shortage of Key Lethal Injection Drug, N.Y. Times, (Jan. 21, 2011), http://www.nytimes.com/2011/01/22/us/22lethal.html?_r=0.
 Hospira Inc., supra.
 John Ericson, Botched Execution Shows Perils of Lethal Injection Drug Shortage, Newsweek, (Apr. 30, 2014, 10:00 AM), http://www.newsweek.com/2014/05/16/states-go-great-lengths-find-lethal-injection-drugs-249154.html.
 Denniston Court to Rule, supra.
 Amy Howe, Court stays Texas execution, SCOTUSblog (Feb. 5, 2015, 2:00 PM), http://www.scotusblog.com/2015/02/court-stays-texas-execution-for-now/.