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Oral Arguments Over Lethal Injection Drugs

The Supreme Court heard oral arguments today in the case involving lethal injection drugs.

Conservative justices accused opponents of capital punishment of disingenuous delaying tactics regarding the drugs used in executions. Liberal justices suggested state officials were shading the facts to rush condemned men to the execution chamber.

The case involves the drug midazolam, which was used in the botched Oklahoma execution of Clayton Lockett. (More here.) Three death row inmates brought the case. One, Charles Warner, was since put to death using midazolam. His last words: [More...]

“It feels like acid,” and “My body is on fire.”

Compare:

“So suppose that we said, we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects. Maybe you won’t feel it, maybe you will. We just can’t tell,” said Justice Elena Kagan. “And you think that that would be OK?”

with

“Let’s be honest about what’s going on here,” said Justice Samuel Alito, adding opponents were conducting “a guerrilla war against the death penalty” by pressuring pharmaceutical manufacturers to deny access to more effective chemicals, then suing to block alternatives that raised the risk of pain.

The legal issue:

Whether a federal district judge who upheld the use of midazolam clearly was wrong. The inmates argued the judge erroneously relied on unsupported expert testimony, and concluded, without scientific evidence, that midazolam induces “a phenomenon that is not anesthesia” but was like a coma and made the subject unable to feel pain."

Haven't we seen enough of "the needle and the damage done?"

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    Rather Funny... (5.00 / 2) (#2)
    by ScottW714 on Thu Apr 30, 2015 at 08:20:22 AM EST
    ...to read that conservatives think 'disingenuous tactics' are a bad thing considering that is pretty much their MO.
    -----------------

    Seems to me like there should be some sort of scientific standard or guidelines applied to all DP method methods.

    Interesting choice of phrase (5.00 / 2) (#3)
    by ruffian on Thu Apr 30, 2015 at 10:23:56 AM EST
    "a guerrilla war against the death penalty"...people trying to stop a barbaric practice are guerrilla warriors? Now we have a war on the war on crime?

    This society is so sick sometimes it defies belief.

    The transcript (5.00 / 1) (#4)
    by KeysDan on Thu Apr 30, 2015 at 03:06:04 PM EST
    reveals that the ideologic and political bent of the conservative justices  (save for Thomas who said nothing) trumped so much as an attempt to understand the case. And, importantly, the legal issue before them.

    Alito, Scalia and Roberts had no grasp of the pharmacologic underpinnings of the drug, Midazolam, that may give rise to the level of unconstitutional pain and suffering under the Eight Amendment.  The instructive inquiries by Justices Sotomayor and Elena Kagan seemed to have greater sedative properties on Scalia and Alito than the questionable drug at issue.

    The Chief Justice's  provision of additional  time for Wyrick (and Konrad) to present their points,  owing to the observation that Wyrick was required to do more listening than talking,  was a not too subtle comment on Sotomayor's and Kagan's drilling down on matters related to the unreliability and/or unknowns in use of the drug for death penalty purposes.

    Scalia and Alito saw the case through the telescope of guerilla warfare against the death penalty.   It was the fault of the "abolitionist "movement that created the unavailability of a better drug. It was the fault of those who oppose the death penalty and they could wash their hands of it all--although availability was not relevant to the matter at hand.

    As was pointed out, Oklahoma has come up with other procedures if use of this drug is found unacceptable (such as nitrogen gas). Scalia went even further in refreshing memories that the death row guy was a lifer, but killed a guard and was given the death penalty.  The statement was out of context, leaving the suggestion that Scalia felt death was deserved by whatever means--and let's move on, time for lunch.

    I read the transcript of this morning's argument (none / 0) (#1)
    by Peter G on Wed Apr 29, 2015 at 07:42:42 PM EST
    I am not optimistic about our side winning this. As they say in Supreme Court practice, I'm having trouble getting to five [counting votes, that is].

    Agreed. (none / 0) (#5)
    by KeysDan on Thu Apr 30, 2015 at 04:17:20 PM EST
    My prediction: 5/4 with Alito writing for the majority. Sotomayor in dissent joined by Kagan, Ginsburg and Breyer.

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    Can someone explain (none / 0) (#6)
    by Abdul Abulbul Amir on Fri May 01, 2015 at 08:56:14 AM EST

    why an overdose of morphine isn't used?   Both painless and effective.

    Veterinarians know how to do it (none / 0) (#7)
    by thomas rogan on Fri May 01, 2015 at 01:57:12 PM EST
    Veterinarians put down animals all the time in what is regarded as a humane way, often with the animal in the owner's lap.  Use the same cocktail.
    All this flap about is just about creating yet more roadblocks to using the death penalty.  

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    you tell me (none / 0) (#8)
    by thomas rogan on Fri May 01, 2015 at 01:59:21 PM EST
    "As was pointed out, Oklahoma has come up with other procedures if use of this drug is found unacceptable (such as nitrogen gas). Scalia went even further in refreshing memories that the death row guy was a lifer, but killed a guard and was given the death penalty.  The statement was out of context, leaving the suggestion that Scalia felt death was deserved by whatever means--and let's move on, time for lunch."

    What penalty do YOU suggest for a lifer who kills a guard???

    The Supreme Court has, in the past, (5.00 / 1) (#10)
    by KeysDan on Fri May 01, 2015 at 04:16:07 PM EST
    pondered the constitutionality of the death penalty, itself. It concluded that with proper procedures in place, the penalty was constitutional.  However, within the meaning of the Eighth Amendment, the procedures cannot be "cruel and unusual." For example, the death penalty cannot be effected by boiling in oil, draw and quartering, or burning at the stake.

    The procedures cause unconstitutional pain and suffering under the Eight Amendment.  But, these prohibited "cruel and unusual" procedures, the Supreme Court said in Trop v Dulles (1958) should change over time being punishments that offend society's sense of decency.

    The case before the Supreme Court was not one directed at the constitutionality of the death penalty itself, but rather, one of the unconstitutionality of the procedure used and contemplated.  Indeed, was one of the drugs deployed in the death protocol pharmacologically capable of avoiding cruel and unusual punishment.

    Did the questioned drug's properties affect not only the spinal cord, but also, the brain. Would its central nervous system properties withstand a negating shock from the next drug in the series, potassium chloride?  Would the questioned drug permit the final, lethal drug of the protocol, potassium chloride, to kill without sensing  excruciating pain.  Pain, acknowledged to be akin to being "burned at the stake," albeit from the inside out rather than outside in.  

    The record shows that Justices Sotomayor, Kagan, Ginsburg and Breyer understood the issues and the case before them. The conservative justices who spoke demonstrated that they were unprepared or unconcerned, or both. Perhaps, they should look to their colleague Justice Thomas--better to have others think you are unaware than to speak and remove all doubt.

    But, as with Justice Scalia's remark a day earlier about the protestor shouting that supporters of same sex marriage would burn in hell, I felt that he found the whole macabre case "to be refreshing."


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    transfer to a more secure facility (none / 0) (#9)
    by Jeralyn on Fri May 01, 2015 at 02:13:41 PM EST
    and deprivation of privileges (subject to being restored if his behavior improves). (Life plus cancer isn't an option.)

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