(CN) – Thirteen former state attorneys general, including Walter Mondale, asked the U.S. Supreme Court to ban the three-drug cocktail that led to the botched execution of Clayton Lockett.
The former attorneys general filed a friend of the court brief Tuesday in the case of Richard E. Glossip et al. v. Kevin J. Gross, et al., an Oklahoma case from the 10th Circuit.
The attorneys general say that the drug midazolam did not fully induce unconsciousness in Lockett’s April 2014 execution, and that his painful death constituted cruel and unusual punishment.
“The selection and implementation of the means of executing prisoners condemned to death demands serious contemplation, consideration of scientific, medical, and technical evidence,” the brief states. “Oklahoma failed to meet those standards here.”
The attorneys general criticize the haste with which Oklahoma selected midazolam, saying the selection process was flawed and did not adhere to the state’s responsibility to execute lawful punishments.
“With execution dates set for two condemned prisoners on the same date, Oklahoma lawyers were under temporal and political pressure to go forward with the executions,” the brief states. “When their source of pentobarbital fell through, they quickly selected midazolam to serve as the crucial first drug in a three-drug protocol, even though it is not medically equivalent to the drugs typically used for the purpose.”
In its hurry, Oklahoma ignored evidence of midazolam’s ineffectiveness for this from other states and prioritized carrying out the execution over finding a humane alternative, the brief argues.
It calls the state’s selection procedure “a flawed process with disastrous consequences.”
Organized by The Constitution Project, a bipartisan legal watchdog group, the brief was filed in support of the three inmates slated for execution on Oklahoma’s death row – Glossip, John M. Grant, and Benjamin R. Cole Sr.
It was filed in the interest of “ensuring that drugs chosen for the states’ respective lethal injection protocols are scientifically capable of causing a humane death, free from intolerable risks of severe pain and suffering.”
Former Vice President Mondale was an attorney general and senator from Minnesota. Other former attorneys general, from both parties, held office in California, Illinois, Oklahoma itself, Virginia, New Jersey, Massachusetts, Wisconsin, Ohio, Pennsylvania and Utah.
Former Oklahoma Attorney General Robert Henry, an amicus, sat on the 10th Circuit from 1994 to 2010, the last two years as chief judge.
Some of the amici support the death penalty in principal and practice, though all oppose the use of midazolam, which has been associated with botched executions in Ohio and Arizona as well.
Called a “procedural disaster” by the 10th Circuit, the errors made by Oklahoma during the Lockett execution led to a lawsuit by the remaining Death Row inmates. The U.S. Supreme is slated to hear arguments in late April. It blocked Oklahoma from using midazolam until the case is decided.
Of particular concern is the ineffectiveness of the drug midazolam for inducing unconsciousness before commencing the lethal injections.
The drug did not work during the execution of Lockett, who rose up from the table when medical personnel believed he was unconscious and writhed in pain for 43 minutes before dying of a heart attack after the injection process had been halted.
The amicus brief was submitted by Matthew Hellman, Erica Ross, and Josh Parker of Jenner & Block, along with Virginia Sloan and Sarah Turberville of The Constitution Project, both of Washington, D.C.
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