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 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."
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"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
(Additional reporting by Jon Herskovitz; Editing by Will Dunham)
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