Release Date:  June 29, 2015
Contact:  Kent S. Scheidegger
(916) 446-0345

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In a decision announced today, the United States Supreme Court rejected a challenge by three brutal murderers to Oklahoma’s lethal injection process. The murderers claim that the three-drug protocol used in executions may cause extreme pain and is therefore unconstitutional.

The case of Glossip v. Gross involves the state’s effort to carry out executions of condemned murderers in an environment where death penalty opponents have intimidated drug manufacturers into refusing to supply states with the drugs most commonly used for the lethal injection process. As a result, Oklahoma has been forced to switch anesthetics twice in recent years. Last year because the preferred anesthetic, pentobarbital, was no longer available, Oklahoma substituted another anesthetic, midazolam, for its execution protocol.

The California-based Criminal Justice Legal Foundation had joined the case to encourage a decision rejecting the murderers’ claim, arguing that the Eighth Amendment does not allow torturous methods of execution but also does not require completely painless ones. Defendants who claim that a particular execution protocol may create an unintended risk of pain should be required to present alternative protocols that present substantially less risk.

Writing for the Court’s 5-4 majority, Associate Justice Samuel Alito states, “Because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’ ... Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether. ” Justice Alito also notes that “the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-efficacy.”

In their petition to the Supreme Court, the Oklahoma murderers cite the January 15, 2015, execution of Charles Warner, for the rape and murder of an 11-month-old girl. The state used midazolam, which the murderers claimed caused a painful execution. As evidence they noted that during the execution process, a news reporter quoted Warner saying, “my body is on fire.” The report actually said that Warner made this statement while receiving a saline solution, prior to receiving any execution drugs. When the drugs were administered, the Associated Press reported that Warner became unconscious and stopped breathing seven minutes later with no signs of physical distress.

The three petitioners are Richard Glossip who hired a co-worker to beat his employer to death with a baseball bat; Benjamin Cole, who murdered his nine-month-old daughter by bending her in half backward because her crying interrupted his video game; and John Grant, who was serving 130 years for four armed robberies when he pulled a female prison food-service supervisor into a closet, put his hand over her mouth, and stabbed her 16 times with a shank, killing her.

The Foundation introduced a scholarly amicus curiae (friend of the court) brief arguing that Oklahoma has been forced to select alternative execution drugs because of a restriction on the availability of preferred drugs by European death penalty opponents. Overturning the enforcement of a lawful sentence due to the actions of foreign governments is an assault on the sovereignty of the United States. The CJLF brief also notes that the petitioners’ claim that Warner’s execution was painful because of his “on fire” statement is further evidence of deception by defense lawyers and death penalty opponents. The Foundation’s brief cites a 2014 Associated Press report that prior to his execution, Ohio murderer Dennis McGuire told guards that his defense attorney counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty.

“The death penalty is supported by the vast majority of the American people. Justice in these horrible cases must not be obstructed by conspiracy to cut off the needed drugs. The Supreme Court affirmed today that states can take the necessary measures to defeat that obstruction of justice,” said Foundation Legal Director Kent Scheidegger.

CJLF Legal Director Kent Scheidegger is available for further comment at (916) 446-0345.