On Monday the U.S. Supreme Court upheld a controversial lethal injection drug used in several botched executions, ruling that its use does not violate the Eighth Amendment prohibition on cruel and unusual punishment. The decision was highly anticipated by death penalty opponents, since a ban on the drug would have jeopardized the continued use of lethal injections.
The court ruled in favor of the drug, midazolam, in a bitterly-debated 5-4 decision.
Justice Samuel Alito, who authored the majority opinion, argued that “some risk of pain is inherent in any method of execution.” And while the death penalty has been ruled constitutional, “Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
Along the same lines, Alito noted that there are virtually no drugs on the market to replace midazolam, writing that the petitioners “have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used.”
Alito also cited a prior Supreme Court case ruling that the federal courts should not “embroil [themselves] in ongoing scientific controversies beyond their expertise.”
Midazolam makes up part of a lethal injection cocktail. It came into use when sodium thiopental, an anesthetic previously approved by the court, became unavailable after European manufacturers began protesting the death penalty and refusing to supply it.
In an April 2014 execution using midazolam, death row inmate Clayton Lockett woke up after the drugs had been administered, moaning in agony.
The case against the drug was originally brought by four inmates, one of whom—Charles Warner—was executed in January using midazolam. He told the room, “It feels like acid” and “My body is on fire.”
Chief Justice John Roberts, along with Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, concurred, while Justices Sonia Sotomayor and Stephen Breyer dissented separately.
Sotomayor wrote that Alito’s opinion relies on “a flawed syllogism.” “If the death penalty is constitutional, the Court reasons, then there must be a means of accomplishing it, and thus some available method of execution must be constitutional.”
“If all available means of conducting an execution constitute cruel and unusual punishment,” she continued, “then conducting the execution will constitute cruel and usual punishment.” Referencing Alito’s comment that the petitioners have offered no replacement drugs, she wrote, “Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.”
Justice Breyer, joined by Justice Ruth Bader Ginsburg, posited that the death penalty should simply be abolished altogether. “I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.”
In the past, Breyer has argued, “If there is no method of executing a person that does not cause unacceptable pain, that – in addition to other things – might show that the death penalty is not consistent with the Eighth Amendment.”
In a characteristically colorful concurring opinion, Justice Antonin Scalia declared “Welcome to Groundhog Day,” and went on to depict his liberal colleagues’ objections to the death penalty as “gobbledy-gook” and “a let-them-eat cake obliviousness to the needs of others.”
