Supreme Court Looks at Painful|Drugs in Lethal-Injection Process

     (CN) – At oral arguments today on Oklahoma’s lethal-injection scheme, the Supreme Court’s liberal justices characterized the protocol as burning a man alive by drugs.
     Oklahoma executed Charles Warner, 47, in January after a deeply divided Supreme Court refused to get involved. Warner was the first inmate executed in Oklahoma after the horribly botched lethal injection of Clayton Lockett last year.
     Despite concerns over a shortage of the necessary drugs, the Oklahoma Supreme Court allowed the executions to proceed.
     Both a federal judge and the 10th Circuit approved new standards that the state unveiled for executions by lethal injection after the Lockett incident ahead of Warner’s execution on Jan. 15.
     An attorney for death-row inmates, Robin Konrad, opened by telling the court that her clients face “intense pain and suffering” from Oklahoma’s three-drug formula, which includes a paralytic and potassium chloride.
     “The second and third drugs are constitutional only if a prisoner will not feel the pain and be aware of the suffocation caused by those drugs,” Konrad said.
     “The district court erred as a matter of law and as a matter of fact when it found that midazolam as the first drug is constitutionally tolerable.”
     Justice Anton Scalia was immediately skeptical. “Why is that a matter of law?” he asked. “As I see it, it’s just a face question, and the District Court found that it did eliminate the pain. And you’re asking us to find that the District Court was clearly erroneous in that determination?”
     Justice Elena Kagan tried to clarify Konrad’s position. “You’re suggesting that we know that the drug can’t maintain deep unconsciousness, right,” she asked.
     Konrad affirmed, stating that the pharmacological properties of the drug do not prevent a patient from feeling pain during a painful procedure.
     Justice Samuel Alito stepped in. “I mean, let’s be honest about what’s going on here,” he said. “Executions could be carried out painlessly. There are many jurisdictions that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other states could carry out executions painlessly.”
     Many pharmaceutical companies have stopped selling drugs used in the lethal-injection process to death-penalty states amid pressure from death-penalty opponents, forcing states such as Oklahoma to find alternative drugs.
     Alito told Konrad that the death penalty is constitutional, but opponents are free to try to persuade legislatures to abolish the punishment.
     “But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Alito continued.
     Konrad told the court that the fact that the unavailability of another most-effective method to the state should not have any bearing on whether the current method is constitutional.
     Justice Sonia Sotomayor indicated that she agreed with Konrad. “There are other ways to kill people, regrettably,” she said. For example, the state could return to using the firing squad or gas, Sotomayor said.
     Chief Justice John Roberts inquired whether Konrad found these other methods more acceptable. “Do you have an instinct about whether or not the gas chamber is preferable to this lethal injection or not,” he asked.
     Konrad said she did not know enough about the other procedures to make a judgment as to whether they would be constitutional under the Eighth Amendment.
     Attorney Patrick Wyrick argued for the state, and told the court that midazolam was routinely used to induce anesthesia, but now propofal is more commonly used because recovery period is much shorter.
     But Justice Kagan pointed out that, even once a prisoner has been given a lethal dose of anesthetic, “it will take 30 minutes to die.”
     “In the meantime, the potassium chloride can be wreaking extraordinary pain on the individual,” she said.
     Potassium chloride is the third drug in the lethal-injection process, and acts to stop the heart.
     Kagan noted that people have compared the lethal injection of potassium chloride to being burned alive.
     “So suppose that we said, we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects,” she said. “Maybe you won’t feel it, maybe you will. We just can’t tell. And you think that would be OK.”
     Wyrick responded: “That isn’t the world that we live in, and it’s certainly not the world that this District Court lived in.” He reiterated that the Food and Drug Administration has approved the drug for anesthesia.
     But both Justices Steven Breyer and Sotomayor questioned the state-expert’s extrapolation that a prisoner would feel no pain while rendered unconscious, especially once injected with highly noxious potassium chloride.
     Konrad closed her argument by telling the court again that the state’s expert had no support for the testimony he presented, testimony on which the District Court based its decision.
     “What this court needs to understand is that giving the drug, even if it could potentially cause a toxic effect, that will not protect against the unconstitutional pain and suffering from the second and third drugs,” she said.

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