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Why SCOTUS' Hearing on Midazolam May Affect Texas Executions

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Calif. Dep. of Corrections and Rehabilitation
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The U.S. Supreme Court is considering today whether the lethal injection drug Midazolam, which is not currently used in Texas, constitutes cruel and unusual punishment. The drug has not been proven to deliver a pain-free execution experience.

Today, the U.S. Supreme Court will hear arguments on the three-drug combination used in Oklahoma executions.

At issue is whether the use of one of the drugs, Midazolam, constitutes cruel and unusual punishment, since it is not proven to prevent the person being executed from feeling pain.

Texas' method of execution is different from Oklahoma's.

The Texas Department of Criminal Justice (TDCJ) oversees Texas executions. TDCJ spokesperson Jason Clark says that unlike Oklahoma's three-drug combination, "Texas utilizes a single lethal dose of Pentobarbital." 

The Supreme Court is not looking at Pentobarbital today, just Midazolam. But Texas' supply of Pentobarbital is running low — there's only enough for one more execution, Clark says. The TDCJ has said it may consider using other drugs in its executions — potentially Midazolam — so the case could have some effect on how Texas carries out lethal injections in the future.

Many things are changing in the way Texas administers the death penalty. Beyond the drugs, the number of executions in Texas has gone down significantly since it peaked in the year 2000. That year, there were 40. Last year, there were 10.

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Credit Pew Research Center
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Robert Dunham with the Death Penalty Information Center in Washington, D.C., says changes on death row are sweeping the nation. "It looks as though America may be outgrowing the death penalty," Dunham says.

He points to polls showing approval for the death penalty at its lowest point in 40 years and to some drug companies refusing to sell drugs that could be used in executions.

"Any way you look at it," he says, "the death penalty seems to be failing as a public policy, and the American public is beginning to react to it that way."

The execution of Robert Pruett at Texas' Huntsville facility was scheduled for Tuesday, but it was stayed by a state district judge for further DNA testing. The next Texas execution, that of Derrick Charles, is set for May 12.