The Supreme Court Let A Man Die. He Was Executed With The Wrong Drug.

The court placed far too much faith in Oklahoma's disastrous lethal injection protocol in January and in June.

You need five Supreme Court justices to halt an execution. In January, Charles Warner got four. Oklahoma executed him that same day.

But the court did something strange eight days later: It agreed to hear Warner's case. For that, you only need four votes. That case, initially docketed as Warner v. Gross, was posthumously renamed Glossip v. Gross, one of the highlights of the last Supreme Court term.

No one knows which of the nine justices voted to hear the Warner case, but it was probably the same ones who would have spared his life a week earlier. Dissenting from the one-sentence order that refused to keep Warner alive a little longer, the four justices said a few things about Oklahoma's lethal injection protocol. They were none too pleased.

"The questions before us are especially important now, given States' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote in January.

Those words now ring prophetic.

On Thursday, The Oklahoman revealed that an autopsy report for Warner showed that he had been executed using potassium acetate, a chemical not approved for such use in Oklahoma. The state's drug protocol calls for potassium chloride.

The Warner case marks the first time that any state has administered potassium acetate in an execution, according to the nonprofit Death Penalty Information Center. Oklahoma almost used it a second time on Richard Glossip last week, except Gov. Mary Fallin (R) gave him a last-minute stay after state Department of Corrections officials discovered the mix-up involving the wrong drug the day of his execution.

An investigation into the errors -- including Warner's execution -- is underway, and all pending Oklahoma executions are on hold until the mess is resolved. A new investigative report published Friday by The Frontier also raised questions about who's truly the boss in Oklahoma's capital system.

Could the Supreme Court have foreseen this disaster?

In January, Sotomayor and her liberal colleagues on the court sounded the alarm when they said they were "deeply troubled" about the evidence Warner and other death row inmates had presented about midazolam, another problematic substance in Oklahoma's three-drug cocktail. They said the evidence suggested that it "cannot constitutionally be used as the first drug in a three-drug lethal injection protocol."


The justices had doubts about the drug in part because of an earlier botched execution in Oklahoma -- that of Clayton Lockett, which in their words "went poorly, to say the least."

"Lockett awoke and writhed on the execution table for some time after the drugs had been injected and officials confirmed him to be unconscious," Sotomayor continued. "He was overheard to say, 'Something is wrong,' and, 'The drugs aren’t working.'"

Lockett died some 40 minutes after he received the lethal dose. Warner himself said, "My body is on fire" as he was being put to death.

Yet in June, the Supreme Court upheld Oklahoma's drug protocol, ruling it did not violate the Constitution. It was a contentious 5-to-4 decision, with the same four justices who would've given Warner a reprieve losing the battle. Sotomayor wrote the principal dissent denouncing Oklahoma's practices, but it was Justice Stephen Breyer who made headlines when he said it is "highly likely" the death penalty, as practiced in the United States, is now unconstitutional.

The conservative majority was unimpressed. Noting the five-month investigation into Lockett's disastrous execution and the state's new protocol that emerged from it, Justice Samuel Alito observed Oklahoma now had in place "procedural safeguards to help ensure that an inmate remains insensate to any pain." He added that Warner was executed in keeping with "these revised procedures."

We now know that was hardly the case. Worse, the Supreme Court innocently took Oklahoma at its word about the last drug it would use to stop Warner's heart.

"In January of this year, Oklahoma executed Warner using these revised procedures and the combination of midazolam, a paralytic agent, and potassium chloride," Alito said.

Oklahoma is under fire for using an unapproved drug to execute a man.
Oklahoma is under fire for using an unapproved drug to execute a man.
Sue Ogrocki/Associated Press

As we learned Thursday, that also was not the case.

With all this new information, it's unclear how the court might rule if Oklahoma's troubled lethal-injection scheme reaches it again. But there's something to be said about Sotomayor's warning in January about death penalty states' "increasing reliance on new and scientifically untested methods of execution," which now raise the specter that Warner's execution may, in fact, have violated the Eighth Amendment.

In a statement Thursday, Charles Ogletree, a Harvard law professor and a prominent death penalty opponent, called on the Department of Justice to investigate Oklahoma's use of the unapproved drug and to look into "whether any civil or even criminal liability should attach to the homicide of Charles Warner."

For the lawyers attacking Oklahoma's execution drug protocols, the recent developments seem to have lit a new fire.

Dale Baich, a federal public defender representing Glossip and other death row inmates, told The Huffington Post it's "too early to tell" if a new Supreme Court showdown will result from the new revelations, but he said the fight continues in federal district court.

"We fully expect to go to trial," Baich said.

As for the justices themselves, Glossip continues to be on their minds. During a hearing on Wednesday in an unrelated capital case from Kansas, Justice Antonin Scalia still didn't seem to be over the June decision, let alone his colleague's newfound opposition to the death penalty.

"Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it," Scalia said.

Perhaps. But if the recent failures and botched executions in Oklahoma -- and the death penalty chaos elsewhere -- mean anything, maybe the rest of the country and even a majority of the justices will soon be ready to turn a page.

Until then, there's one thing we may never know: Why there wasn't a fifth vote at the Supreme Court that would have allowed Warner to make his case.

Also on HuffPost:

Lethal Injection
Until 2010, most states used a three-drug combination: an anesthetic (pentobarbital or sodium thiopental), a paralytic agent (pancuronium bromide) to paralyze the muscle system, and a drug to stop the heart (potassium chloride). Recently, European pharmaceutical companies have refused to sell drugs to the U.S. for use in lethal injections, requiring states to find new, untested alternatives.
Gas Chamber
Gas chambers, like this one pictured at the former Missouri State Penitentiary in Jefferson City, Mo., were first used in the U.S. in 1924. In the procedure, an inmate is sealed inside an airtight chamber which is then filled with toxic hydrogen cyanide gas. Oxygen starvation ultimately leads to death, but the inmate does not immediately lose consciousness.
Electric Chair
The first electric chair was used in 1890. Electrodes attached to an inmate's body deliver a current of electricity. Sometimes more than one jolt is required.
Hanging was used as the primary method of execution in the U.S. until the electric chair's invention in 1890. Death is typically caused by dislocation of the vertebrae or asphyxiation, but in cases when the rope is too long, the inmate can sometimes be decapitated. If too short, the inmate can take up to 45 minutes to die.
Firing Squad
This Old West-style execution method dates back to the invention of firearms. In a typical scenario in the U.S., the inmate is strapped to a chair. Five anonymous marksmen stand 20 feet away, aim rifles at the convict's heart, and shoot. One rifle is loaded with blanks.
Wikimedia Commons
Decapitation has been used in capital punishment for thousands of years. Above is the chopping block used for beheadings at the Tower of London.
Kauko via Wikimedia Commons
Invented in France in the late 18th century during the French Revolution, the guillotine was designed to be an egalitarian means of execution. It severed the head more quickly and efficiently than beheading by sword.
Hanging, Drawing and Quartering
Wikimedia Commons
A punishment for men convicted of high treason, "hanging, drawing and quartering" was used in England between the 13th and 19th centuries. Men were dragged behind a horse, then hanged, disemboweled, beheaded, and chopped or torn into four pieces.
Slow Slicing
Carter Cutlery/Wikimedia Commons
Also called "death by a thousand cuts," this execution method was used in China from roughly A.D. 900 until it was banned in 1905. The slicing took place for up to three days. It was used as punishment for treason and killing one's parents.
Boiling Alive
Wikimedia Commons
Death by boiling goes back to the first century A.D., and was legal in the 16th century in England as punishment for treason. This method of execution involved placing the person into a large cauldron containing a boiling liquid such as oil or water.
Wikimedia Commons
Crucifixion goes back to around the 6th century B.C.used today in Sudan. For this method of execution, a person is tied or nailed to a cross and left to hang. Death is slow and painful, ranging from hours to days.
Burning Alive
Pat Canova via Getty Images
Records show societies burning criminals alive as far back as the 18 century B.C. under Hammurabi's Code of Laws in Babylonia. It has been used as punishment for sexual deviancy, witchcraft, treason and heresy.
Live Burial
Antoine Wiertz/Wikimedia Commons
Execution by burial goes back to 260 B.C. in ancient China, when 400,000 were reportedly buried alive by the Qin dynasty. Depending on the size of the coffin (assuming there is one), it can take anywhere from 10 minutes to several hours for a person to run out of oxygen.
Wikimedia Commons
This ancient method of execution continues to be used as punishment for adultery today.
Crushing By Elephant
Wikimedia Commons
This method was commonly used for many centuries in South and Southeast Asia, in which an elephant would crush and dismember convicts as a punishment for treason.
Michelangelo/Wikimedia Commons
Records show flaying, the removal of skin from the body, was used as far back as the 9th century B.C.
Wikimedia Commons
Records show this execution practice used as far back as the 18th century B.C., where a person is penetrated through the center of their body with a stake or pole.

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