STEVE INSKEEP, HOST:
The Supreme Court gets three chances today to rule on the death penalty. The question in three cases is whether certain drug combinations in lethal injections constitute cruel and unusual punishment. A series of botched executions led to this moment. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: Oklahoma was the first state to execute prisoners by lethal injection. Its three-drug cocktail was soon adopted by every other capital punishment state as the most humane way to impose the death penalty. The first drug, sodium thiopental, was to put the prisoner into a deep, coma-like state. The second was to paralyze him, and the third was to stop the heart. In 2008, the Supreme Court upheld that protocol. The court plurality said that while the second and third drug are painful, the first drug would prevent the prisoner from feeling anything. Since that opinion though, the drug used to render the prisoner unconscious and insensate has become increasingly difficult for the states to get their hands on. Under pressure from groups opposed to the death penalty, manufacturers have refused to provide sodium thiopental and a similar drug, pentobarbital, for use in executions. And the American Pharmacists Association has joined the American Medical Association in discouraging their members from participating in executions in any way. So most death penalty states have turned to midazolam, a drug not approved by the FDA to put people into a deep, coma-like state. Mark Haddad is a lawyer representing the prisoners in today's case.
MARK HADDAD: The evidence that we have about its effects shows that it is not capable of creating that kind of deep unconsciousness in the body.
TOTENBERG: Haddad contends that without that deep unconsciousness, there's a substantial risk that prisoners will feel severe pain. Exhibit A in Haddad's arsenal of arguments is Oklahoma's botched execution of Clayton Lockett. After high doses of midazolam were administered, Lockett's reaction was anything but sedate.
HADDAD: He began to writhe on his gurney, began to buck his head, began to speak out in pain. It was clear that that execution went horribly wrong, notwithstanding a substantial amount of midazolam being administered.
TOTENBERG: Oklahoma doesn't deny that the execution was botched but contends that the problem was improper placement of an IV tube. Oklahoma and other states defend their use of midazolam. Andrew Brasher, Alabama's solicitor general, says Florida has used it in 11 executions without incident.
ANDREW BRASHER: If you have the IV in the right place and you give the right dosage, the executions go fine.
TOTENBERG: So if the Supreme Court were to rule that substituting midazolam will not suffice, would that threaten the states' ability to carry out the death penalty?
BRASHER: I don't know, honestly.
TOTENBERG: Alabama's Andrew Brasher.
BRASHER: The other alternative would be to go to some different execution method that's not lethal injection.
TOTENBERG: Indeed, Utah has already passed a law making the firing squad its back up. Tennessee's is electrocution, and Oklahoma is moving toward legalizing the use of nitrogen gas for a gas chamber. Nina Totenberg, NPR News, Washington.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.