The U.S. Supreme Court has agreed to review Oklahoma's system for execution — the first time it's taken up such a case since rejecting a challenge to lethal injections in 2008.
After a spate of controversial executions over the last year, the court said it will hear a case brought by three death-row inmates who contend the three-drug combination Oklahoma uses is unconstitutional.
"This is very big," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.
"They may focus just on what Oklahoma is doing, but it will set a standard for every state. It's going to put a stamp on what's allowable and what's not."
The Oklahoma inmates' lawyer said in a statement that execution protocols have changed so much since the sweeping 2008 ruling that the high court needs to weigh in.
"The time is right for the Court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols," attorney Dale Baich said.
Nine months ago, the botched execution of convicted murderer Clayton Lockett in Oklahoma put the issue of lethal injections under a spotlight and even triggered a federal review of execution protocols.
Last week, in its first execution since the Lockett debacle, the state executed child rapist and killer Charles Warner without incident.
Warner was part of the challenge that the Supreme Court has agreed to hear, but only four of the justices wanted to delay his execution, one short of the number needed for a stay. However, only four justices are needed to grant certiorari, or review of a case.
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There have been other challenges over the drug combinations used in a variety of death-penalty states, but until now, the Supreme Court had declined to wade in and take a new look.
In the 2008 challenge, opponents claimed if a state failed to properly inject the first of the three drugs then commonly in use, an inmate was left awake but paralyzed, in intense pain but unable to cry out.
In its ruling, the court said that some risk of pain is inherent in any method of execution and that opponents of lethal injection failed to show another method would be clearly more humane.
Since 2008, states have had trouble obtaining some of the drugs that were given the green light — largely because manufacturers refuse to sell them for the purpose of execution. A patchwork of drug combinations is now being used across the country.
Oklahoma's protocol involves two drugs from the 2008 case, but the state substituted midazolam as the first drug to be used on an inmate.
Midazolam featured in two other problematic executions that took longer than expected and left the convicts gasping: Joseph Wood in Arizona and Dennis McGuire in Ohio.
Challengers say midazlolam can't maintain "a deep, coma-like unconsciousness" and has no pain-relieving properties, setting the stage for an excruciating death caused by the other two drugs — a paralytic and a heart-stopper.
The case will likely be argued in April with a decision by late June. The Oklahoma inmates will seek to have their executions delayed until a ruling, and other death-row inmates around the nation may do the same.
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Baich said his clients are "pleased" the Supreme Court is getting involved.
"The lethal injection landscape has changed significantly since Baze v. Rees in 2008. At that time, every state was using the same three-drug combination, which the lawyers in Baze conceded was humane if administered properly," he said.
"Today, states are not using that 3-drug protocol and instead are using experimental drug combinations. The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly."