The Supreme Court on Monday found that a lethal injection drug used by
Oklahoma does not violate the U.S. Constitution's ban on cruel and unusual
punishment, a ruling that provoked a caustic debate among the justices about
the death penalty in America.
The 5-4 ruling, with the court's five conservatives in the majority,
prompted liberal Justices Stephen Breyer and Ruth Bader Ginsburg to say for the
first time they believe capital punishment as currently practiced may be unconstitutional.
They are the only members of the court to have expressed such views.
The decision was a defeat for death penalty foes and for the three death
row inmates who challenged the use of a sedative called midazolam as part of
Oklahoma's lethal injection process, saying it cannot achieve the level of
unconsciousness required for surgery, making it unsuitable for executions.
Justice Samuel Alito wrote on behalf of the court that the inmates had,
among other things, failed to show there was an alternative method of execution
available that would be less painful.
The inmates failed to demonstrate that "any risk of harm was
substantial when compared to a known and available alternative method of
execution," Alito said.
Alito also wrote that it was reasonable for a lower-court judge to find
that midazolam is "highly likely" to prevent an inmate from feeling
pain during an execution. Numerous courts have ruled similarly, Alito noted.
Although the case did not specifically address the constitutionality of
the death penalty in general, it brought fresh attention to the ongoing debate
over whether the death penalty should continue in the United States at a time
when most developed countries have abandoned it.
In his dissenting opinion, Breyer said the court should consider whether
the death penalty itself is constitutional. He was joined by Ginsburg, but not
his other two liberal colleagues.
The main question before the nine justices was whether the use of
midazolam violates the Constitution's Eighth Amendment prohibition on cruel and
unusual punishment. The drug has been used in executions in Oklahoma, Florida,
Ohio and Arizona.
"We believe it highly likely that the death penalty now violates
the Eighth Amendment," Breyer said in a statement he read from the bench.
Conservative Justice Antonin Scalia said Breyer's arguments were full of
"internal contradictions" and were "gobbledy-gook."
The three-drug process used by Oklahoma prison officials has been under
scrutiny since the April 2014 botched execution of convicted murderer Clayton
Lockett. He could be seen twisting on the gurney after death chamber staff
failed to place the intravenous line properly.
Inmates Richard Glossip, John Grant and Benjamin Cole - all convicted
murderers - challenged the procedure. Glossip arranged for his employer to be
beaten to death. Grant stabbed a correctional worker to death. Cole killed his
9-month-old daughter.
'SLOWLY TORTURED'
Liberal Justice Sonia Sotomayor said the inmates "contend that
Oklahoma’s current protocol is a barbarous method of punishment - the chemical
equivalent of being burned alive."
"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"
because the inmate failed to prove the availability of an alternative,
Sotomayor said.
During the court's oral argument on the case in April, Alito said the
challenge to the drug was part of a “guerrilla war” against the death penalty.
"The Constitution is clearly not intended to prohibit the death
penalty by lethal injection or the use of the sedative midazolam,"
Oklahoma's Republican governor, Mary Fallin, said after the ruling.
Dale Baich, one of the inmates' attorneys, said the ruling
"contradicts the scientific and medical understanding of the drug’s
properties." Baich said litigation will continue on the issue in other
cases around the country.
"We will continue to work in the courts to hold the states
accountable in order to try and prevent botched executions in the future,"
Baich said.
Lawyers for the inmates say midazolam is not approved for use in painful
surgeries and should not be used in the death chamber because it cannot
maintain a coma-like unconsciousness, potentially leaving inmates in intense
pain from lethal injection drugs that halt breathing and stop the heart.
The Supreme Court in 1976 in a case called Gregg v. Georgia reinstated
the death penalty in America, finding that its use did not constitute cruel and
unusual punishment. Oklahoma in 1977 then became the first state to adopt
lethal injection as a means of execution, according to the Death Penalty
Information Center.
Thirty-one of the 50 U.S. states have the death penalty.
In April, Oklahoma's governor signed a law allowing the state to use
nitrogen gas as an alternative execution method if the Supreme Court ruled
against the state or drugs became unavailable.
The case is Glossip v. Gross, U.S. Supreme Court, No. 14-7955
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