The gurney used to restrain prisoners during the lethal injection process is shown in the execution chamber in Huntsville, Texas.
Photo by Pat Sullivan/AP

‘Suppose we said we’re going to burn you at the stake…’

With the justices hearing oral arguments yesterday on marriage equality, much of the attention surrounding the Supreme Court this week has been on Obergefell v. Hodges. But there’s another case, argued this morning, that’s worth watching for a very different reason.
 
The state of Oklahoma has experimented with a three-drug cocktail when killing its prisoners, sometimes with horrific consequences.
 
All of which set the stage for an important Supreme Court case. Amanda Sakuma reported this afternoon:
Supreme Court justices sparred along ideological lines during oral arguments Wednesday as they openly questioned a knotty hypothetical: If certain lethal injections feel like “being burned alive from the inside,” then what standards of drug cocktails must be met – if any – to ensure that death row inmates don’t suffer cruel and unusual punishment when being put to death?
 
After a series of botched executions in the last year brought increased scrutiny to how the U.S. carries out capital punishment, the Supreme Court on Wednesday heard a challenge to a potential source of the problem: a sedative called midazolam, the first in a three-drug cocktail used in several executions that went horribly awry. The challenge, brought by three convicted killers in Oklahoma, argues that midazolam does not effectively guarantee that an inmate is unconscious for the remainder of the execution. Attorneys for the prisoners say this creates a substantial risk of causing severe pain to the point of violating the Eighth Amendment.
Justice Elena Kagan, noting that one of the chemicals amounted to “being burned alive from the inside,” posed a hypothetical to the state’s lawyer: “Suppose we said we’re going to burn you at the stake, but before we do, we give you an anesthetic with unknown effects.”
 
Well, sure, when you put it that way, it almost sounds like cruel and unusual treatment.
 
BuzzFeed’s report added that another justice seemed just as skeptical as Kagan by Oklahoma’s arguments.
At one point in [Oklahoma Solicitor General Patrick Wyrick’s] argument in defense of the use of the drug, [Justice Sonia Sotomayor] essentially, told the state’s lawyer that he had lied in his briefs before the court.
 
“I am substantially disturbed that in your brief you made factual statements that were not supported by the sources [you cited], and in fact directly contradicted,” she told him. “So nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes in the context, okay?”
 
Sotomayor was then given wide berth by her colleagues to go into detail to question him regarding some of those examples, from the state’s characterization of the Food and Drug Administration’s description of the drug to its characterization of one of the studies about the drug on which the state relied.
Just so we’re clear, justices usually don’t call out counsel like this during oral arguments.
 
We likely won’t see a ruling on this until June, which has the potential to have a sweeping impact on the methods states use to kill people. As untested chemicals face legal challenges and become less accessible, some states are turning back the clock, re-embracing firing squads, electric chairs, and deadly gases.
 
The transcript from this morning’s high court arguments is online here. Look for more on the case on tonight’s show.
 

Capital Punishment, Death Penalty, Elena Kagan, Oklahoma, Sonia Sotomayor and Supreme Court

'Suppose we said we're going to burn you at the stake...'