Despite two significant losses at the U.S. Supreme Court in 2008 and 2015, lethal injection challenges continue in many states. In the past two terms, the U.S. Supreme Court remanded two cases to permit counsel to pursue claims that Missouri’s lethal injection procedure violates a specific prisoner’s Eighth Amendment rights. Practitioners nationwide are also continuing to challenge the requirement that defense counsel propose an alternative means of executing their client when raising a method-of-execution claim.
In September 2015, Oklahoma was scheduled to execute Richard Glossip, the prisoner whose lethal injection claims were rejected by the U.S. Supreme Court earlier that year. Just minutes before Mr. Glossip’s scheduled execution, the state halted the process upon discovering that they did not have the correct drug. This led to an extensive grand jury investigation, which culminated in May 2016 with the publication of a scathing 106-page report. The grand jury found that officials administered potassium acetate instead of potassium chloride to execute Charles Warner in January of 2015 and nearly used it again in the execution of Mr. Glossip. During the grand jury’s investigation, three prominent officials resigned, including the warden of the prison where Oklahoma executions take place. In November, Oklahomans voted to preclude challenges to Oklahoma’s method of execution and to prohibit a finding that the death penalty is cruel and unusual punishment.