TIME Crime

The Dawn of a New Form of Capital Punishment

Why Oklahoma became the first state to approve nitrogen gas as a lethal injection alternative

In the weeks following the execution of Clayton Lockett, the Oklahoma death row inmate whose botched lethal injection triggered a statewide moratorium on executions, lawmakers there began rethinking their approach to capital punishment. Among the people they called on to help was Michael Copeland.

Copeland is a criminal justice professor at East Central University, a public school with about 6,000 students in Ada, Okla. From 2010 to 2013, he was the director of the anti-fraud unit at the Oklahoma Insurance Department. Before that, he was an assistant attorney general for the Republic of Palau, a small island nation in the Pacific Ocean. Copeland is not a doctor. He has no medical training. But what he does have is a close relationship with Oklahoma legislators, some of whom he’s known for years. And they often ask Copeland to conduct research and gather data that could help shape bills. He’s worked with legislators on reducing the number of uninsured motorists, for example, and helped draft guidelines for the transportation of the mentally ill who are a danger to themselves and others.

About a year ago, Oklahoma Rep. Mike Christian, who attended high school with Copeland, asked his old friend for ideas on how to replace the increasingly problematic method of lethal injection. After studying the issue, Copeland recommended death by nitrogen, a method that has never been used for a state-sanctioned killing in the U.S.

Nevertheless, Oklahoma has embraced the idea. On Friday, Gov. Mary Fallin, a Republican, signed a bill into law, based on Copeland’s research, that would make nitrogen asphyxiation the state’s execution method if lethal injection is ruled unconstitutional or the necessary drugs are no longer available. The law marks a new frontier in the increasingly charged debate over the future of capital punishment in America. And it ensured that the state where lethal injection originated three decades ago has resumed its place as the nation’s execution laboratory.

The Problems With Lethal Injection

The idea of nitrogen asphyxiation or “nitrogen hypoxia” has been been batted around as a method of capital punishment for years. A 1995 National Review article titled “Killing With Kindness: Capital Punishment by Nitrogen Asphyxiation,” for example, recommended that states use nitrogen gas after a federal district court deemed California’s gas chamber unconstitutional. But the method largely remained on the fringes of the capital punishment debate.

MORE: Texas Running Out of Execution Drug

Twenty years later, the landscape has changed dramatically. Today, a number of states are facing severe lethal injection drug shortages after pharmaceutical companies stopped providing drugs for the procedure. Texas, for example, is down to enough pentobarbital for just a handful of executions. Legislators in Alabama, Tennessee and Virginia have introduced legislation to bring back the electric chair because of problems obtaining drugs, while Utah has resurrected the firing squad. And looming over it all is a Supreme Court case this summer involving Oklahoma’s three-drug protocol. The court’s decision could potentially force states to abandon lethal injection altogether.

“The problem we’re having in Oklahoma now and several other states is that while lethal injections used to be an effective and humane way to execute someone, it’s really not anymore,” Copeland says. “The facts on the ground have changed. Now it’s like an experiment every time. Here’s some drugs and maybe we’ll have a paramedic administer it and let’s see what happens. Maybe this will kill ‘em. It’s kind of haphazard, and I think it’s only going to get worse.”

No one could’ve foreseen lethal injection’s problems in 1977, when an Oklahoma legislator asked Dr. Jay Chapman, the state medical examiner, to develop what was intended to be a more humane execution alternative to firing squads. Chapman developed a three-drug cocktail that soon became the default method of executions nationwide. But by 2010, European drug makers acceded to pressure from death penalty opponents and stopped selling drugs for use in executions. As supplies dwindled, states scrambled to figure out how to keep killing without the three drugs they had long relied on: sodium thiopental, a sedative; pancuronium bromide, a paralytic agent; and potassium chloride, a compound that stops the heart.

Some states switched to using just one drug, often pentobarbital, a barbiturate. Others began using midazolam, a sedative that has been scrutinized by some anesthesiologists for not being strong enough to properly induce unconsciousness and is at the heart of the upcoming Supreme Court case. Many states have turned to compounding pharmacies, which are unregulated by the federal government, for their supply while passing secrecy laws to keep those drug makers shielded from public view.

Last year, there were three executions widely considered botched, all of which included the sedative midazolam. Dennis McGuire, an Ohio inmate convicted of rape and murder, died after reportedly snoring and snorting during his lethal injection. Joseph Wood, an Arizona inmate, reportedly gasped on the gurney in an execution that took nearly two hours. And in Oklahoma, Lockett died in a lethal injection that went so awry that documents obtained by the Tulsa World show that Lockett essentially helped his executioners find a vein after they failed multiple times to insert IVs into his arms and legs. It was that chaotic scene that sent Oklahoma legislators on the search for an alternative.

The Search For A Better Way to Kill

Copeland says there were four main criteria he tried to meet in recommending a new execution method: 1) it had to be humane; 2) it couldn’t have supply problems; 3) it had to be simple to administer; 4) it could be done without medical professionals. Nitrogen, Copeland says, satisfies all four.

MORE: The Harsh Reality of Execution by Firing Squad

The method would likely consist of a gas mask that covers the head and neck, which would be filled with pure nitrogen from a nearby canister. That nitrogen would displace the oxygen, leading to death by oxygen deprivation, says Solomon Snyder, a neuroscientist at Johns Hopkins Medical School who is not involved in the Oklahoma bill.

The method’s supporters cite accidental deaths that were reportedly peaceful — such as divers who took in too much nitrogen and pilots whose oxygen levels fell too low — as evidence of the chemical’s efficacy. Nitrogen hypoxia has also been recommended by some advocates of euthanasia in places without so-called right to die laws. The gas is also relatively cheap and abundant, decreasing concerns about supply problems.

“Execution via nitrogen hypoxia is a painless form of capital punishment that is simple to administer, doesn’t depend upon the aid of the medical community, and is not subject to the supply constraints we are faced with when using the current three-drug cocktail protocol,” State Rep. Mike Christian, who wrote the House bill authorizing nitrogen gas, said in an e-mail.

Copeland says that physicians, who declined to testify in front of state legislators, confirmed for a 14-page study he co-authored that a lack of oxygen would lead someone to pass out within about 15 seconds, halt brain waves within 30 to 45 seconds and stop the heart within two to three minutes. In September, Copeland presented his findings to the Oklahoma House Judiciary Committee. His presentation included YouTube videos of people passing out from too much helium, another inert gas. Pilots testified about experiencing hypoxia, describing the gradual decrease of oxygen as undetectable, and Copeland claims the effects with nitrogen would be similar.

“We have a lot of parallels,” Copeland says. “We’ve just never used [nitrogen] in this context.”

Changing the context could prove problematic. Administrating the gas within a prison is much different than the instances in which pilots and divers have slowly and accidentally experienced a lack of oxygen. Dr. Michael Weiden, a pulmonary expert at NYU School of Medicine, says that while nitrogen could be administered without medical professionals, using it for capital punishment could create an ironic consequence: the need for sedation.

“What’s going to prevent someone from holding their breath and prolonging their execution?” says Weiden, who supports the death penalty for certain crimes. “People are going to hold their breath as the oxygen leaks out of their bodies. They’ll struggle, and somebody who thinks that an individual who’s asphyxiating will not freak out without sedation is foolish.”

The American Medical Association’s ethical guidelines require that “physicians can only certify death, provided that the condemned has been declared dead by another person,” according to spokesman R.J. Mills. The association does not have a position on the Oklahoma bill.

Despite the unanswered questions, more states appear to be considering nitrogen as they plan for a future without lethal injection. Copeland says he has been in touch with corrections officials in several states, some of which he says are “ahead of us in terms of protocol.” Copeland would not disclose the states.

Oklahoma Sen. Anthony Sykes, who sponsored the nitrogen bill in the state Senate, says Louisiana and Texas have both shown interest in the method. Louisiana Department of Corrections Secretary James LeBlanc told a legislative committee last year that “nitrogen is the next big thing” and described it as a “painless way to go.” In February, the state’s corrections department issued a report recommending nitrogen hypoxia as an alternative method of execution.

A spokesperson for the Texas Department of Criminal Justice would not confirm that the state was considering alternative execution methods.

To some lethal injection experts the interest in nitrogen has familiar echoes of the discussion nearly 40 years ago, when states were contemplating methods other than firing squads and gas chambers.

“It looks fool-proof,” says Deborah Denno, a law professor at Fordham University who opposes the death penalty over what she says is its inequitable application in the U.S. “It’s easy to look at these incidents in a non-prison setting and say they die humanely. But implementing that into a prison setting, the conditions aren’t the same. The people doing this aren’t the same.”

Corrections officials have varied levels of training and experience with lethal injection, which can lead to the sorts of errors that contributed to Lockett’s prolonged execution. Denno cautions that the same problems could happen with the administration of nitrogen.

Richard Dieter, the senior program director of the Death Penalty Information Center, an anti-death penalty group, says Oklahoma would essentially be conducting another experiment if it went adopted nitrogen hypoxia.

MORE: Georgia Postpones 2 Execution Over ‘Cloudy’ Drugs

“This method has never been used before in an execution,” Dieter says. “I think it’s premature to accept a legislator’s promise that all will go well. It’s one thing to say that people have died of oxygen deprivation and another to strap an unwilling subject in a chamber and watch the reactions and resistance for the first time.”

Now that Fallin has signed the bill into law, Oklahoma has sidestepped something a number of other states have been forced into: a return to methods that were all but abandoned decades ago.

“You got to remember that if this doesn’t pass, the alternative is not to go back to lethal injection,” Copeland said in February. “If for some reason lethal injection either becomes unavailable or it’s unconstitutional, we go to the electric chair. Maybe you don’t believe in the death penalty, but certainly you believe that if we’re going to have a death penalty, it should be done in a humane way. And I think [nitrogen] is better than the electric chair by a wide margin.”

TIME Crime

Texas to Execute Inmate as Lethal Injection Drug Supply Dwindles

Kent Sprouse, 42, is scheduled for lethal injection on April 9, 2015, for killing a police officer and another man outside a gas station convenience store about 20 miles south of Dallas.
AP Kent Sprouse, 42, is scheduled for lethal injection on April 9, 2015, for killing a police officer and another man outside a gas station convenience store about 20 miles south of Dallas.

The state has enough pentobarbital for four more executions

Texas plans to carry out its first execution Thursday since obtaining a new batch of lethal injection drugs in March.

Kent Sprouse, who killed a police officer and another man in 2002 outside a convenience store near Dallas, is scheduled to be put to death at 6 p.m. Thursday.

Last month, Texas announced it had enough lethal injection drugs to carry out Sprouse’s execution but would need an additional supply to carry out three more executions scheduled in April. But within weeks, the state said it had obtained another batch of the drug, pentobarbital. At the time, The Guardian reported that Texas purchased the batch “from a licensed pharmacy that has the ability to compound.”

In the last few years, states with the death penalty have been forced to turn to compounding pharmacies, which are unregulated by the federal government, to obtain lethal injection drugs, as a number of pharmaceutical companies have elected not to sell drugs for lethal injections. The Texas Department of Criminal Justice keeps the identity of its drug suppliers secret over fears that public pressure on participating pharmacies would limit the state’s ability to carry out executions.

MORE: Lethal Injection Execution Halted in Texas

In March, both the American Pharmacists Association and the International Academy of Compounding Pharmacists urged their members not to sell drugs for use in capital punishment. But that decision isn’t binding, and it’s unclear how effective it will be on member pharmacies.

Sprouse’s execution will be the 11th in the U.S. this year and the fifth in Texas, which has executed more inmates—522—than any other state since 1976. The state has another three executions scheduled for May and June but has yet to obtain enough drugs to carry them out, according to Jason Clark, a Texas Department of Criminal Justice spokesperson.

TIME Crime

The Strange Story of the Man Who Chose Execution By Firing Squad

Gilmore
Keystone / Getty Images Gary Gilmore pictured in January of 1977

How Gary Gilmore's 1977 execution came to pass

Firing squads have returned to the headlines this week, as Utah took steps toward allowing that method of execution if other options become unavailable. Even though some experts say firing squads are an effective method of carrying out capital sentences, the majority of Americans are put off by the idea.

But when Utah executed a Death Row inmate by firing squad four decades ago, citizens felt very differently about it. In 1976, when Gary Mark Gilmore was sentenced to death by firing squad, TIME reported that dozens of men were calling the Utah state prison warden asking to be one of the shooters. Gilmore, then 35, was a long-time resident of criminal-justice institutions, starting with a reformatory at age 14; in 1975, he killed a gas-station attendant and a motel clerk, apparently without motive. And, when his lawyers appealed, he tried to force them not to. His execution was to be the nation’s first after the Supreme Court lifted a decade-long moratorium on the death penalty.

His argument? To be executed would be to “die with dignity,” he said. And he took advantage of Utah’s law allowing a prisoner to choose his method of execution from either hanging or firing squad to elect for the latter. In its Nov. 22 1976 issue, TIME described how it would go ahead:

If Gilmore is shot, five volunteer marksmen will do the job. They will probably be law-enforcement officials, though none will be from the staff of the prison 20 miles from Salt Lake City where the death sentence will be carried out. Gilmore, hooded and strapped by the neck, arms and legs to a wooden chair, will have a circular piece of black cloth pinned over his heart. Resting high-powered .30-cal. Winchester hunting rifles on a two-by-four railing, the squad will simultaneously fire one round from 20 ft. away. There is no provision for a second volley or a coup de grace, and one rifle will be loaded with a blank so that no one will know for sure that he was responsible for the condemned man’s death.

On the other hand, according to the new lawyer he chose, Gilmore believed that life in prison was cruel and unusual. So much so, that when his execution was stayed, his girlfriend smuggled Seconal sleeping pills to him during a visit, and they both took overdoses. He was rushed to a hospital and ended up back in prison, and progress on his case was delayed while he recovered. She fell into a coma.

In December, following a hunger strike by Gilmore, a hearing board decided that his wish to die by firing squad could move forward. Asked by a judge whether he had anything to say, his only request was not to be hooded during the execution.

Still, even though the date was set, the execution did not happen as planned, as TIME reported on Dec. 13 the same year:

Though Gilmore has persistently disavowed all lawyers who tried to win him a reprieve, the decisive intervention came when Stanford Law Professor Anthony G. Amsterdam moved in the following day, on behalf of Gilmore’s mother. Amsterdam, a leader in the fight against capital punishment for a decade, filed a petition with Supreme Court Justice Byron White, who is responsible for emergency appeals in the Utah area. “The need for a stay of execution is obvious,” said Amsterdam. “Such stays are commonly granted in death cases. Indeed, the only factor that makes this application unusual is [Gilmore’s] assertion that he wished to be executed.”

Among Amsterdam’s reasons for appealing: that there may have been judicial errors in the original trial, that Gilmore may have waived his constitutional rights without fully understanding them, that his defense lawyers were inadequate, and that Utah’s capital punishment law may be unconstitutional. Justice White duly turned the petition over to the full court. The next day the court voted 6 to 3 to stay the execution for one day so that Utah state authorities can provide more information. That demand is very likely to require several further delays.

Meanwhile, Gilmore and his family again got rid of his lawyer, and sold the rights to his story in a deal that resulted in a 1982 movie, The Executioner’s Song, in which Tommy Lee Jones played Gilmore. The entrepreneur who bought the rights was invited to witness Gilmore’s execution.

That event finally took place in January of 1977. “It was an old mahogany office chair with a black vinyl seat and back,” TIME reported on Jan. 31. “There, in an old tannery known as the Slaughterhouse in the southwest corner of the Utah State Prison, sat Gary Mark Gilmore, 36, freshly shaven and wearing a black T shirt, crumpled white trousers and red, white and blue sneakers. His neck, waist, wrists and feet were loosely bound to the chair. Twenty-six feet away hung a sailcloth partition with five slits. Hidden behind the curtain stood five riflemen armed with .30-.30 deer rifles, four loaded with steel-jacketed shells, the fifth with a blank.”

Gilmore was administered his last rites. A target was pinned over his heart; he was hooded, despite his earlier request. All four of the loaded bullets hit their target. Gary Gilmore became the first prisoner to be executed in the U.S. in a decade.

Gilmore’s desire to die, as well as the timing of his execution, made his story irresistible to many Americans, especially at a time where public approval of capital punishment ran high. But those factors that made his case intriguing were the same ones that still limit what can be learned from his case. After all, a precedent that relies on an inmate who advocated for his own execution is one with few applications. “Gilmore would not allow the legal points to be made,” law professor Charles L. Black Jr. explained at the time. “Gilmore cannot give away other people’s rights.”

Read more about Gary Gilmore, here in the TIME Vault: After Gilmore, Who’s Next to Die?

TIME Crime

The Harsh Reality of Execution by Firing Squad

The firing squad execution chamber at the Utah State Prison in Draper, Utah in 2010.
Trent Nelson—AP The firing squad execution chamber at the Utah State Prison in Draper, Utah in 2010.

It's undeniably brutal — but experts say it may be the most effective way to carry out the death penalty

The Utah State Senate voted Tuesday to bring back firing squads if lethal injection drugs become unavailable, which would make it the only state in the union to allow the method.

Only three death row inmates have been executed by firing squad since 1976, all in Utah, with the last being Ronnie Lee Gardner in 2010. The method is considered cruel by many Americans; only 12% said they would be open to it in a 2014 NBC News poll. But experts say it may actually be the most effective way for states to execute inmates.

“Firing squad is the only execution method for which people are trained,” says Fordham University law professor Deborah Denno, who studies lethal injection and other execution methods. “It’s the most certain, the most expert way of executing and from all we know it would be the quickest.”

In previous executions, Utah has used five gunmen who each aim at the inmate’s heart. One of the executioners fires a blank, so it remains uncertain as to who fired the fatal shots. Any trained marksman willing to participate could theoretically be an executioner, whereas with lethal injections, prison officials or others with no certified medical training must hook up death row inmates to IVs.

There are few, if any, ways to determine how painful an execution by firing squad would be. But it does appear to bring about death more quickly than lethal injection. In 1977, when Gary Gilmore was the first person executed by firing squad in Utah following the moratorium on capital punishment in the U.S., a doctor pronounced Gilmore dead within two minutes.

MORE: Execution Problems Revive Talk of Using Firing Squads and the Electric Chair

There have been at least two firing squad executions that could be considered botched. One occurred in 1879, when Wallace Wilkerson moved just enough for the executioners to miss his heart. Another came in 1951 when gunmen misfired and hit inmate Eliseo Mares in the stomach and hip. But firing squads appear to have a much better track record than lethal injection. Last year, three lethal injection executions were considered botched.

“The death probably happens within seconds,” says Dr. Jonathan Groner, a pediatric surgeon at The Ohio State University who studies executions. “There is no way to measure the pain, but there’s anecdotal evidence that it’s less painful.”

Groner cites several lethal injections in the last year, including the executions of Clayton Lockett in Oklahoma and Dennis McGuire in Ohio, which resulted in prolonged deaths in which witnesses described the inmates groaning and writhing on the gurney.

But patients who die from heart complications can lose consciousness within seconds, he says. There is also a bizarre experiment from 1938 in which doctors monitored the electrical activity of the heart of a Utah man who was being executed, which showed that his heart essentially became inactive within about 20 seconds of the shots being fired.

But over the years, the public has largely decided that firing squad is cruel in a modern society that has the tools to put inmates to sleep, which often appears painless. Even Gardner’s brother, Randy, came out this week describing the brutality of Ronnie’s execution in 2010. Death by firing squad seems like an antiquated and crude practice, whereas death by lethal injection can appear comparatively humane—even though it’s unclear what sort of pain inmates are in. A number of legal challenges claim it fails the Eighth Amendment’s prohibition on cruel and unusual punishment.

“Is the firing squad needlessly cruel punishment? The executed cannot say,” says Joel Zivot, an Emory Healthcare anesthesiologist who studies executions and lethal injection. “These days, debates about methods of execution seem to be setting aside questions of cruelty evaluation and are more about having any method on hand.”

TIME Pakistan

Pakistan Reinstates the Death Penalty After Seven-Year Moratorium

Pakistani NGO activists protest the death penalty in Islamabad on October 10, 2014
Aamir Qureshi—AFP/Getty Images Pakistani NGO activists protest the death penalty in Islamabad on Oct. 10, 2014

More than 8,000 people sit on death row in the South Asian nation

After a seven-year moratorium, Pakistan has reinstated the death penalty for nonterrorism cases eligible for capital punishment, and will begin executions in cases where appeals and clemency pleas are no longer an option.

Islamabad reintroduced the death penalty on terrorism-related cases last December, following the 2014 Peshawar school attacks that killed over 150 people. Pakistan has executed 24 people since December, already including three whose convictions were unrelated to terrorism, according to Amnesty International.

“This shameful retreat to the gallows is no way to resolve Pakistan’s pressing security and law-and-order problems,” said Amnesty International’s deputy Asia-Pacific director Rupert Abbott.

More than 8,000 citizens languish on Pakistan’s death row, including women like Aasia Bibi, a Christian convicted under the nation’s blasphemy laws. Last year, U.N. Secretary-General Ban Ki-moon urged Pakistan to restore its moratorium on the death penalty, which also applies to crimes such as adultery, apostasy and blasphemy.

Rights groups contend that Pakistan’s justice system is marred by unfair trials, poor counsel and police torture.

Pakistan’s Interior Ministry, however, released a letter clarifying that the death penalty applies “strictly as per law and only where all legal options and avenues have been exhausted and mercy petitions … have been rejected by the President.”

TIME Crime

Nebraska Considers Eliminating the Death Penalty

Miriam Thimm Kelle, left, whose brother James Thimm was tortured and killed on a southeast Nebraska farm in 1985, is hugged by Byron Peterson of Scottsbluff, after she testified in favor of a law proposal to change the death penalty to life imprisonment without parole, during a hearing before the Judiciary Committee in Lincoln, Neb., March 4, 2015.
Nati Harnik—AP Miriam Thimm Kelle, left, whose brother James Thimm was tortured and killed on a southeast Nebraska farm in 1985, is hugged by Byron Peterson of Scottsbluff, after she testified in favor of a law proposal to change the death penalty to life imprisonment without parole, during a hearing before the Judiciary Committee in Lincoln, Neb., March 4, 2015.

With support from Republican lawmakers

Nebraska legislators are considering a bill that would eliminate the state’s death penalty, receiving significant support from Republican lawmakers and family members of murder victims.

MORE: Georgia Postpones 2 Executions Over ‘Cloudy’ Drugs

Dozens of people rallied at the Capitol in Lincoln, Neb., Wednesday night in support of a bill that would do away with death sentences,the Associated Press reports, and replace them with life without the possibility of parole.

More than two dozen relatives of murder victims signed a letter supporting the bill, saying that the time between a conviction and an actual execution can be painful for families who see their loved one’s name appear in the news during appeals and often decades-long delays.

MORE: Ohio Looks to Shield Lethal Injection Drugmakers

Omaha Sen. Ernie Chambers, an Independent, has worked to eliminate the state’s death penalty for years but appears to have more support this time around, especially from Republicans who make up the majority of the state’s nonpartisan legislature. The Journal Star reports that seven GOP senators have signed onto the bill.

While the legislation will likely make it out of committee, the bill may still face a veto if passed from Republican Gov. Pete Ricketts, who has supported the death penalty in the past.

Since 2007, New Jersey, New York, Illinois, Connecticut and Maryland have eliminated the death penalty, and currently 32 states still enforce capital punishment. Last month, Pennsylvania Gov. Tom Wolf put an effective moratorium on executions in the state in part over fears of putting innocent people to death.

Nebraska currently has 11 people on death row.

[AP]

TIME Crime

Georgia Postpones 2 Executions Over ‘Cloudy’ Drugs

TIME.com stock photos Health Syringe Needle
Elizabeth Renstrom for TIME

Georgia's supply of lethal injection drug pentobarbital may have gone bad

Georgia indefinitely postponed two executions Tuesday to allow officials to analyze its current batch of lethal injection drugs, which “appeared cloudy” prior to an execution that had been scheduled Monday night.

The execution of Kelly Gissendaner, who would’ve been the first woman put to death in the state in 70 years, was called off by the Georgia Department of Corrections Monday night after the state discovered its supply of pentobarbital, a short-acting barbiturate, looked murky.

Georgia officials made the decision after consulting with a pharmacist, according to The New York Times, even though state officials said that its pentobarbital supply had been tested and was cleared for use.

MORE: Georgia Convict First to Be Executed After Botched Oklahoma Lethal Injection

The state then announced Tuesday that the executions of both Gissendaner and Brian Keith Terrell, who was set to die by lethal injection on March 10 for the 1992 murder of John Henry Watson, were indefinitely postponed. Gissendaner was convicted of arranging the 1997 murder of her husband, Douglas Gissendaner.

A number of states have had trouble carrying out executions due to problems obtaining drugs. A series of lawsuits from death row inmates who are challenging the constitutionality of states’ lethal injection protocols have also led to stays of execution nationwide.

MORE: Ohio Looks to Shield Lethal Injection Drugmakers

Like many states, Georgia has turned to compounding pharmacies, which are not under federal oversight, for their drug supplies while also passing a secrecy law that keeps participating pharmacies anonymous. Georgia has not released the name of its drug supplier, and it’s unclear when its current batch of pentobarbital was due to expire.

TIME The Brief

#TheBrief: Why America Could Change How It Puts People to Death

3 Inmates in Oklahoma are challenging the use of certain drugs in executions

A new Supreme Court case could mean a change in the chemicals that prisons use for lethal injections. Watch #TheBrief to find out more.

TIME Courts

Supreme Court Delays Executions for 3 Oklahoma Inmates

The Supreme Court
James P. Blair—Getty Images

State is temporarily barred from using controversial sedative

The U.S. Supreme Court on Wednesday delayed the execution of three Oklahoma death row inmates who are part of a case that could decide the future of lethal injections nationwide.

The court’s order prevents Oklahoma from using the sedative midazolam to execute Richard Glossip, John Grant and Benjamin Cole, who are challenging the state’s current lethal injection protocol. The trio claims that the use of midazolam, which has been criticized by some anesthesiologists as not properly inducing unconsciousness, violates the Eighth Amendment’s ban on cruel and unusual punishment.

Glossip, who was convicted of having his boss murdered, was set to be executed Thursday. Grant, who was convicted of stabbing a co-worker to death, was scheduled to be executed in February. And Cole, handed a death sentence for killing his 9-month-old daughter, was initially set to be executed in March.

MORE: Justices Will Review Use of Midazolam as Execution Drug

Because the Supreme Court’s order specifically prevents Oklahoma from executing the men with midazolam, it’s possible but unlikely that the state will try to use a different drug to carry out their death sentence before the court rules in their case.

The Supreme Court agreed to hear the case last week, making it the first time the court will consider whether a specific method of capital punishment violates the Eighth Amendment’s ban on cruel and unusual punishment since Baze v. Rees in 2008. That decision upheld Kentucky’s three-drug lethal injection protocol. Since then, drug shortages have forced states to use different drugs, including midazolam.

All eyes have been on Oklahoma’s execution protocol since last April, when the lethal injection of a convicted killer went awry. The Supreme Court is expected to make a decision by the end of June.

Read more: Ohio Abandons Controversial Drug Execution Cocktail

TIME Crime

Oklahoma Executes First Inmate Since Botched Lethal Injection in April

Oklahoma Execution
Sue Ogrocki—AP The gurney in the the execution chamber at the Oklahoma State Penitentiary is pictured in McAlester, Okla., Oct. 9, 2014.

Thursday's execution came shortly after the Supreme Court rejected his legal team's appeal

Charles Warner was executed on Thursday night after the Supreme Court declined in a 5-4 ruling to intervene, making him the first death-row inmate to be put to death there since a botched lethal injection in April forced the state to reform its execution standards.

The execution of Warner, who was convicted for the 1997 sexual assault and murder of an 11-month-old, had been set for 6 p.m. CST, but was delayed while officials could learn the court’s ruling. After that came in, the Associated Press reports, prison officials said he was declared dead at 7:28 p.m., local time.

Warner’s execution had originally been scheduled after that of Clayton Lockett, who was convicted of kidnapping and burying alive Stephanie Neiman in 1999. But officials scrapped it after Lockett’s lethal injection went awry.

Executioners took 51 minutes to locate one of Lockett’s veins and then failed to insert the IVs properly, allowing drugs to leak into the inmate’s surrounding tissues. According to witness accounts, Lockett writhed on the gurney for roughly 45 minutes. An autopsy showed he died of a heart attack.

MORE: Oklahoma Inmate Felt ‘Liquid Fire’ During Execution, Doctor Says

Lockett’s execution triggered a moratorium on lethal injections in Oklahoma. The state instituted changes to its drug protocol, increased training for executioners and remodeled its execution chamber.

For Warner’s lethal injection, state executioners will be using new equipment that will help prevent improper IV placement. Prison officials are also allowed to postpone an execution if there are problems in the first hour. And the dosage of midazolam, one of the drugs used that has been routinely criticized as not strong enough to adequately put an inmate to sleep, has been increased.

Warner’s legal team went to the high court for a last-minute stay after a federal court in Oklahoma City rejected the appeal, and then a federal appeals court in Denver did the same. An execution in Florida that used the same method occurred just before Warner’s following a temporary hold due to a similar case mulled by the justices.

Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor dissented in Thursday’s ruling, with the latter writing:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol. It is true that we give deference to the district courts. But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed. We should review such findings with added care when what is at issue is the risk of the need- less infliction of severe pain. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions.

Read next: 25 Secret Minutes Inside Oklahoma’s Execution Chamber

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