Reflections on Lethal Drugs, Sleeping and Waking Up

05/01/2015 02:52 pm ET | Updated Jun 30, 2015

I have always loved the Supreme Court.

As a law student, I made pilgrimages to the Court to listen to arguments. It fortified me and inspired me for the hard work and sacrifice ahead.

I proudly became a member of the Supreme Court bar and had the privilege of participating in briefs before the Court. Waiting in line yesterday to hear the arguments in Glossip v. Gross, I felt that familiar sense of anticipation: justice is possible here.

At issue was whether Oklahoma can use a drug called Midazolam in a three drug protocol used to kill prisoners by lethal injection. There was a disconnect between the nitty-gritty discussion about what it takes to kill a prisoner and the beauty and nobility of our surroundings:

Midazolam, the first drug administered, is supposed to render a prisoner unconscious and keep him or her unconscious until potassium chloride, the killing drug, has done its work.

Everyone agrees that a prisoner will die a horrible death if he or she is conscious when the potassium chloride is used. Potassium chloride feels like liquid fire.

But while Midazolam might reliably put a prisoner to sleep, there is no reliable scientific data to support the notion that a prisoner will remain "asleep" when the potassium chloride starts to burn through the body. Pain will wake up the prisoner. A series of botched executions in 2014 and much clinical and scientific evidence supports this chilling conclusion.

With no substantive response to Midazolam's uncertain utility, Oklahoma's lawyer made technical legal arguments about who had the burden of proof. When asked why a third, paralyzing drug was used, he answered almost without realizing it: "to keep the prisoner from moving."

It saddened me to see the Court forced to sift through this rubble.

It made me wonder. Who is it that Oklahoma is really trying to put to sleep? And what will it take to wake up?

Should the prospect and reality of an innocent person being executed shock our systems to jolt us awake?

Should daily protests and palpable anger reflecting the fact that a significant segment of the citizenry has no confidence that it will be treated fairly by police, the criminal justice system or the courts provide the twinge that rouses us?

Should higher murder rates in regions of the country that use the death penalty with greater frequency enable us to discern reality from dream?

Some doze undisturbed. Or drift deeper into trance imagining that a return to firing squads and electric chairs will make us more civilized.

If we are not asleep, we must take the execution status quo by the shoulders and shake it hard to wake up.

We have the muscle to do it. According to the PEW Research Center, opposition to the death penalty continues to increase--now at 38%. Popular support for the death penalty continues to decline. Now just 56% percent of the public supports the practice in the abstract. And the devil is truly in the details.

I don't know what the Supreme Court will decide. However the Court rules, this struggle will not be over.

Using Midazolam in executions is a questionable practice at best. Let's make sure however, that it doesn't have long-term sedative effects on the public's consciousness.

The death penalty is preventing our nation's forward progress. It does not enhance public safety. It distracts us from addressing the root causes of crime and violence. It undermines our values of fairness and equality before the law.

Make some noise. Join the 90 Million Strong Campaign now. Learn how you can become engaged in ending the death penalty! Follow me at diannatncadp.