New York Times

Justices Stay Executions of 3 in Oklahoma, Pending Decision on Lethal Drug Protocol

WASHINGTON — The Supreme Court on Wednesday stayed the executionsof three Oklahoma inmates who were challenging the state’s lethal injection protocol on the grounds that it might cause intense suffering.

In a brief, unsigned order, the court banned Oklahoma from executing the inmates using the particular chemical they challenged, the sedative midazolam. “It is hereby ordered that petitioners’ executions using midazolam are stayed pending final disposition of this case,” the order said, leaving open the possibility that the executions could proceed if the state obtained and used a substitute chemical.

The order came just days after the court agreed on Friday to hear the inmates’ case, which contends that new combinations of execution drugs used in several states violate the constitutional ban on cruel and unusual punishment. But the court’s action arrived too late for a fourth petitioner in the case, Charles F. Warner, who was executed Jan. 15 after the court rejected his stay application in a 5-to-4 vote.

That sequence of events brought attention to a gap in the court’s internal procedures, which require the votes of four justices to add a case to the court’s docket but five to stop an execution.

In a dissent from the court’s Jan. 15 order denying stays for all four inmates, Justice Sonia Sotomayor, writing for the court’s four-member liberal wing, said there was “a reasonable probability” that the court would grant review of the case. Mr. Warner, who had raped and murdered an 11-month-old baby, was executed that night.

“I hope that our failure to act today does not portend our unwillingness to consider these questions,” Justice Sotomayor wrote. A little more than a week later, on Jan. 23, the court agreed to hear the case of the remaining three inmates. The case used to be called Warner v. Gross, No. 14-7955. On Friday, the court renamed it, and it is now called Glossip v. Gross, No. 14-7955.

But the court waited until Wednesday to revisit its decision to deny stays of execution to the three remaining petitioners: Richard E. Glossip, who had been scheduled to be executed Thursday; John M. Grant, on Feb. 19; and Benjamin R. Cole Sr., on March 5.

The court will hear arguments in their case in late April, almost two months after the last scheduled execution.

Mr. Glossip was convicted of arranging the beating death of his employer, Mr. Grant of stabbing a prison cafeteria worker to death, and Mr. Cole of breaking his 9-month-old daughter’s spine, killing her.

Oklahoma officials initially opposed stays of execution for all four men. They changed course Monday, asking the Supreme Court to grant stays for the remaining three until the case was decided or until the state could obtain “a viable alternative” to midazolam.

Oklahoma started using midazolam because companies making traditional barbiturates, which have a longer track record and deeper anesthetic properties, have refused to provide them for executions.

Midazolam is used as the first chemical in a three-part drug cocktail. It is meant to render the prisoner unconscious before the injection of a paralytic and then a caustic heart-stopping agent.

In April, things went awry at the execution of Clayton D. Lockett, who appeared to moan and struggle after the drug cocktail was administered. He died in the execution chamber 43 minutes after the injections had begun. Midazolam was also involved in prolonged and possibly painful executions last year in Arizona and Ohio.

On Monday, the state said it “continues its search for sodium thiopental and pentobarbital for use in its executions” and said it should be allowed to proceed with those chemicals if it succeeds.

Lawyers for the three inmates filed a brief on Monday supporting the state’s request for stays. “If the state is permitted to execute petitioners before the constitutionality of Oklahoma’s protocol has been fully reviewed by the court,” they wrote, “the effects are irreversible.”

On Wednesday, Dale Baich, a lawyer for the inmates, said, “We welcome today’s ruling staying executions in Oklahoma until the court can address serious questions about the state’s risky lethal injection protocol.”

“Midazolam is an inappropriate drug to use in executions,” he said.