USSC Takes A Lethal Injection Challenge (with some confusion)

And More: See here for an account about problems a few years back, showing this issue has been going on for some time. It is about time for a follow-up to Baze though this is a bit of a cock-eyed way of doing it. Update: The state thinks a stay makes sense, for now, though depends on further developments. Seems better to let the USSC decide, which provides more clarity on what procedures are correct. Further Update: Stay granted as to "using midazolam" until final deposition of case.  

After some justices dissented without comment (or in one case by referencing a dissent below) in related cases, four justices joined an opinion dissenting from a refusal to stay an execution because of concerns with the lethal protocol used. Shortage of drugs led to new techniques that were called into question* and controversy over the lack of openness regarding the source of drugs and so forth (e.g., a reduction of witnesses to the execution itself).  The man, convicted of rape and baby murder, was soon after executed. Four justices are needed to hear a case for oral argument, but five are needed to grant a stay.  

The lack of a "courtesy fifth" has received some criticism in the past -- back to the 1980s -- and continues to be a concern today.  "Today" can be taken quite literally, since the Supreme Court just granted a case from a petitioner from the same group that included the man just executed.  Now, it shouldn't matter (it's a drug protocol argument), but one thing that is a flag for me is that the crime committed by this person appears somewhat less heinous, there even might be some sort of doubt involved.  Overall, he seems to be -- for a murderer mind you -- a much more sympathetic candidate.  A bit from that article:

Justin Sneed, a young contract handyman who worked and lived at the Best Budget Inn that Glossip managed in Oklahoma City, confessed to beating motel owner Barry Van Treese to death with a baseball bat on Jan. 7, 1997. Prosecutors said Glossip feared losing his job and recruited Sneed to kill his boss. Sneed would later testify that Glossip promised him $10,000 to commit the crime. Both men were convicted of first-degree murder. In exchange for his testimony, Sneed received a life sentence without parole; Glossip received a death sentence.

A judge told Glossip that if he admitted his involvement in Van Treese's death, he would be sentenced to life in prison and eligible for parole in 20 years. Glossip said he refused to perjure himself by admitting to something he didn't do.

This is a tad more palatable than a person who was convicted of rape and murder of a baby.  I'm sure someone will also note that he's white, the person executed (Charles Warner) was black.  There is also the fact that the state can cite an execution being done without a hitch though here appears to be some lack of clarity on that point.  Meanwhile, for now, the USSC has not formally granted a stay even here and why this one defendant of four (due to die next week) was singled out is unclear.  More here.

[Update: Glossip is the lead here, but there are "et. al." -- that is, this petition is in the name of three defendants. So, the above might be largely besides the point, though to me it is notable. This guy has a "story" so to speak a lot more relatable than the guy executed.  I have not looked into the other two.  Anyway, looking at the file number of the dissent to the refusal to stay his execution and to this grant of cert., it's the same.  So, "et. al." would seem to include him though it is largely shall we say moot now.  I guess, in theory, his survivors or something might have  a civil case or something if wrongdoing is found.]

There has been a busy time of it as to cases refused for cert. (not limited to SSM), per curiams, dissents from denials etc, often without opinion or much clarification. The Supreme Court didn't quite show their work that well in various cases.  This is troubling, especially when a person's life is at stake.  It is somewhat amazing that so few opinions are provided by the USSC in a country this size, but not explaining yourself does help.

As with last Friday's SSM rulings, late week activity from the Court can be of special interest. Last year, there even was an early Saturday morning dissent from Justice Ginsburg in an election case. For good or ill, interesting times for court watchers.

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* SCOTUSBlog summarizes:

The Oklahoma case focuses on one of the three drugs that Oklahoma uses in execution procedures — the sedative, midazolam.  The first drug in an execution by lethal injection is supposed to make the inmate unconscious so that the two other drugs can then be injected without causing excruciating pain.  The three inmates contend that midazolam is not supposed to be used as an anesthetic, and is not reliable in achieving a coma-like unconsciousness. Lower courts, however, rejected the inmates’ challenges.

As noted, shortages, significantly influenced by foreign sources closed off because of opposition to the death penalty, aggravated (in a matter of speaking) the situation.  This opposition also led certain states to increase secrecy, raising First Amendment and due process concerns, the latter because if you don't provide enough information, how do you know the drugs and procedures are safe and will work properly?