Under existing practices, it takes four votes for the Supreme Court to grant cert, but five to issue a stay. For Charles Warner, this procedural issue turned out to be highly significant: he was executed under a death penalty protocol whose constitutionality the Supreme Court has now agreed to consider. Liptak has very valuable background on the decline of the “courtesy stay.”
The practical effects of this are potentially just a question of timing; the unwillingness of Kennedy to vote to grant the stay seems a pretty strong indication that when it comes to torture-by-lethal-injection he remains indifferent. But it’s still an outcome that’s hard to defend.
Petitioners’ likelihood of success on the merits turns primarily, then, on the contention that midazolam cannotbe expected to maintain a condemned inmate in an unconscious state. I find the District Court’s conclusion that midazolam will in fact work as intended difficult to accept given recent experience with the use of this drug. Lockett was able to regain consciousness even after having received a dose of midazolam—confirmed by a blood test—supposedly sufficient to knock him out entirely. Likewise, in Arizona’s July 23, 2014, execution of Joseph Wood, the condemned inmate allegedly gasped for nearly two hours before dying, notwithstanding having been injected with the drug hydromorphone and 750 milligrams of midazolam—that is, 50% more of the drug than Oklahoma intends to use. Moreover, since the District Court denied the request for a preliminary injunction in this case, Ohioannounced that it would no longer employ a similar two-drug cocktail involving midazolam and hydromorphone, which it used in a January 2014 execution during which the condemned inmate reportedly gasped and snorted for more than 20 minutes.
I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol. It is true that we give deference to the district courts. But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed. We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.
I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions.