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Over Easy: Oklahoma will use a nitrogen gas chamber for execution if SCOTUS deems lethal injection unconstitutional

Santa Fe gas chamber

Courtesy of Crane Station 

On Jan. 23, the Supreme Court of the United States (SCOTUS) agreed to hear Glossip v. Gross (No. 14-7955), to consider whether the lethal injection drug protocol is unconstitutional. The case involves three death row inmates in Oklahoma, which carried out botched lethal injections in 2014. On January 28, SCOTUS granted stays of execution in all three, pending review.

Meanwhile, in anticipation that SCOTUS may actually rule that the lethal injection protocol in Oklahoma is unconstitutional, Oklahoma has introduced and passed a new method: asphyxiation by inert gas. SB 794 proposes to suffocate the condemned by “nitrogen hypoxia,” just in case lethal injection- which was supposed to be painless, swift and humane but wasn’t- is deemed “cruel and unusual.” If those two methods don’t work out, the third method is electrocution, and the fourth will utilize a firing squad.

The Death Penalty Information Center lists the three questions that were presented in the petition for certiorari to SCOTUS:

“The case will be argued in April and likely decided by the end of June. The questions presented by the petitioners appear below. Florida uses the same drugs as Oklahoma.

Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.

Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?

Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state\u2019s lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

SB 794 reads:

STATE OF OKLAHOMA

1st Session of the 55th Legislature (2015)

SENATE BILL 794 By: Sykes

AS INTRODUCED

An Act relating to capital punishment;
amending 22 O.S. 2011, Section 1014, which relates to manner of inflicting punishment of death; adding method of execution; modifying certain requirements; and
providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

SECTION 1. AMENDATORY 22 O.S. 2011, Section 1014, is

amended to read as follows:

Section 1014. A. The punishment of death shall be carried out

by the administration of a lethal quantity of a drug or drugs until

death is pronounced by a licensed physician according to accepted

standards of
medical practice.

B.

If the execution of the sentence of death as provided in

subsection A of this section is held unconstitutional by an

appellate court of competent jurisdiction or is otherwise

unavailable, then the sentence of death
shall be carried out by

nitrogen hypoxia.

C.

If the execution of the sentence of death as provided in

subsection subsections A and B of this section
is held

unconstitutional by an appellate court of competent jurisdiction or

is otherwise unavailable, then the sentence of death shall be

carried out by electrocution.

D.

If the execution of the sentence of death as
provided in

subsections A, B and B C of this section is held unconstitutional by

an appellate court of competent jurisdiction or is otherwise

unavailable, then the sentence of death shall be carried out by

firing squad.

SECTION 2. This act shall become effective November 1, 2015.

Bill Information for SB 794:

http://www.oklegislature.gov/BillInfo.aspx?Bill=sb794&Session=1500

In other death penalty news, according to the Death Penalty Information Center, a new poll indicates that
public approval for the death penalty has decreased since 2009:

A new Rasmussen poll found that 57% of American adults support the death penalty, down from 63% in the organization’s polls dating from 2009. The poll found 26% of respondents opposed the death penalty, with 17% undecided. Respondents were also asked whether they favored the death penalty for James Holmes if he is convicted of the mass shooting at a movie theater in Aurora, Colorado. Just 55% said they believed Holmes should be sentenced to death, compared to 66% who held that view immediately after the shooting in 2012. Twenty percent were undecided. Rasmussen found that Americans were less supportive of executing a defendant who is mentally ill, an issue in Holmes’s case. Respondents also had concerns about wrongful convictions, and were split on whether the death penalty deterred crime.

PUBLIC OPINION: American Ambivalence on the Death Penalty

http://www.deathpenaltyinfo.org/

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