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SCOTUS granted cert yesterday to review Oklahoma’s execution cocktail

The United States Supreme Court (SCOTUS) granted cert yesterday in Glossip v. Gross, No. 14-7955. This is the case in which three death row inmates in Oklahoma who are scheduled to be executed in the near future, filed a lawsuit seeking to block their executions on the ground that the chemical cocktail that the state uses causes extreme pain and suffering in violation of the Eighth Amendment prohibition of cruel and unusual punishment.

To briefly review the situation, the previously approved three drug cocktail is no longer available because the companies that manufacture those drugs have prohibited their use to kill people. Oklahoma started using midazolam, which is a milder sedative that has to be administered in unapproved high dosages in order to knock people out. Various experts have warned that midozalam likely will cause an extremely painful burning sensation, a prediction that is consistent with symptoms reported by people who received the high dosages. The problem is that they may have been conscious without the ability to speak for up to half hour or more before they died.

I was delighted to hear that the SCOTUS granted cert because this is an important issue that needs to be resolved. However, the bad news is that the SCOTUS denied a request for a stay of execution earlier in the week by a fourth Oklahoma death row inmate who was subsequently executed.

I believe the most likely explanation for these inconsistent decisions is that it takes five votes to grant a stay of execution, but only four votes to grant cert. Apparently the four liberals voted for both the stay of execution and to grant cert and none of the conservative judges voted for either one.

That does not bode well for the ruling on the merits.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.