The US Supreme Court on Monday ruled against three death row prisoners who had brought a challenge to the use of the controversial lethal injection, midazolam drug on the ground that it violates the Eighth Amendment of the US Constitution which prohibits cruel and unusual punishment.
Midazolam is used to sedate inmates before injecting them with two other drugs, and the petitioners argued that it didn't consistently put people in a state of deep consciousness before they were killed.
On Monday, the US Supreme court ruled that the three inmates failed to show that they would likely be able to prove their claims that the drug violates the Eighth Amendment.
Justice Samuel Alito wrote the 5-4 opinion and was joined by the court's conservative justices.
"Petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative of execution," Alito wrote.
In the process, two dissenting members of the court — Justices Stephen G. Breyer and Ruth Bader Ginsburg — came very close to announcing that they were ready to rule the death penalty unconstitutional. This gave rise to slashing debate with Justices Antonin Scalia and Clarence Thomas about the reliability and effectiveness of the punishment, a dispute that overshadowed the core issue in the case.
The 5-to-4 decision on the execution drug broke along familiar lines, with Justice Anthony M. Kennedy joining the court’s more conservative members to allow its use.
Justice Samuel A. Alito Jr., writing for the majority, said the inmates had failed to identify an available and preferable method of execution and failed to make the case that the challenged drug entailed a substantial risk of severe pain.
The drug, midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other drugs that cause severe pain.
The drug has been involved in three prolonged executions. In one of those cases, an Oklahoma inmate named Clayton Lockett put his head up and started mumbling 13 minutes after a doctor started the lethal injection process..
The doctor stopped the execution but Lockett ended up dying of a heart attack a full 40 minutes after his execution began.
"Let's be honest about what's going on here," Justice Samuel Alito reportedly said. "Executions can be carried out painlessly."
In dissent, Justice Sonia Sotomayor, who joined the other three members of the court’s liberal wing, said, “The court’s available-alternative requirement leads to patently absurd consequences.”
“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” Justice Sotomayor wrote. “But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”
Justices Breyer, Ginsburg and Elena Kagan joined Justice Sotomayor’s dissent.
In a second dissent, Justice Breyer, joined by Justice Ginsburg, said it was time to consider a larger issue.
“Rather than try to patch up the death penalty’s legal wounds one at a time,” Justice Breyer wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
In a 46-page dissent, he said that “it is highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that there was evidence that innocent people have been executed, that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was warped by racial discrimination and politics.
Justice Breyer added that there was scant reason to think that the death penalty deterred crime and that long delays between death sentences and executions might themselves violate the Eighth Amendment. He noted that most of the country did not use the death penalty and that the United States was an international outlier in embracing it.
Justice Scalia responded to what he called “Justice Breyer’s plea for judicial abolition of the death penalty” by calling it “gobbledygook.” The punishment is contemplated by the Constitution, Justice Scalia said, and disingenuously opposed on grounds created by its opponents.
Criticizing the death penalty on the ground that it is not carried out fast enough, for instance, Justice Scalia said, “calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan.”
“We federal judges,” Justice Scalia continued, “live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the people decide how much incremental deterrence is appropriate.”
In a second concurrence, Justice Thomas described several cases in which the Supreme Court had spared the lives of killers.
“Whatever one’s views on the permissibility or wisdom of the death penalty,” Justice Thomas wrote, “I doubt anyone would disagree that each of these crimes was egregious enough to merit the severest condemnation that society has to offer. The only constitutional problem with the fact that these criminals were spared that condemnation, while others were not, is that their amnesty came in the form of unfounded claims. Arbitrariness has nothing to do with it.”
The challenge to the execution drug was brought by four condemned inmates in Oklahoma, who said it did not reliably render the person unconscious and so violated the Eighth Amendment. Lower courts disagreed.
Oklahoma and several other states started to use midazolam in executions after manufacturers in Europe and the United States refused to sell them the barbiturates that were traditionally used to produce unconsciousness.
Justice Alito suggested that condemned inmates should not benefit from the shortages, saying that “anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.”
Chief Justice John G. Roberts Jr. and Justices Scalia, Kennedy and Thomas joined the majority opinion.
In dissent, Justice Sotomayor said the shortages had produced real risks.
“The execution protocols states hurriedly devise as they scramble to locate new and untested drugs,” she wrote, “are all the more likely to be cruel and unusual — presumably, these drugs would have been the states’ first choice were they in fact more effective.”
Read the Judgment here.