WASHINGTON — A deeply divided U.S. Supreme Court upheld the use of a controversial drug in lethal-injection executions Monday, even as two dissenting justices said for the first time they think it’s “highly likely” the death penalty itself is unconstitutional.
The justices voted 5-4 in a case from the state of Oklahoma that the sedative midazolam can be used in executions without violating a constitutional prohibition on cruel and unusual punishment.
The drug that was used in executions in Arizona, Ohio and Oklahoma in 2014 took longer than usual and raised concerns that it did not perform its intended task of putting inmates into a coma-like sleep.
In Oklahoma, state officials tried to halt the lethal injection after the inmate writhed on the gurney and moaned. He died 43 minutes after the process began.
Executions have been on hold in Ohio since a troubling 26-minute execution in 2014 during which a prisoner getting a first-ever two-drug combo repeatedly gasped and snorted. In Arizona, officials were cleared of any wrongdoing in an execution that lasted nearly two hours, but they nevertheless changed the drugs they use to put inmates to death.
Justice Samuel Alito said for a conservative majority that arguments the drug could not be used effectively as a sedative in executions are speculative and he dismissed problems in executions in Arizona and Oklahoma as “having little probative value for present purposes.”
In dissent, Justice Sonia Sotomayor said, “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.”
Alito responded, saying “the dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.”
In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. More than 100 death row-inmates have been exonerated, showing that the death penalty is unreliable, Breyer said. He said it also is imposed arbitrarily, takes far too long to carry out and has been abandoned by most of the country. Last year, just seven states carried out executions, he said.
Justice Ruth Bader Ginsburg joined Breyer’s opinion.
“I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer said, referring to a constitutional provision that prohibits cruel punishment. He was drawing on the cases he has reviewed in more than 20 years on the Supreme Court bench.
In an extremely unusual turn, four justices read their opinions on capital punishment from the bench. Justice Antonin Scalia, part of the court’s majority on Monday, read a brief reply to Breyer. “Welcome to Groundhog Day,” Scalia said, noting that the court has repeatedly upheld the use of capital punishment.
The Supreme Court’s involvement in the case began in January with an unusually public disagreement among the justices over executions. As the case was being heard, Justice Samuel Alito said death penalty opponents are waging a “guerrilla war” against executions by working to limit the supply of more effective drugs. On the other side, liberal Justice Elena Kagan contended that the way states carry out most executions amounts to having prisoners “burned alive from the inside.”
In 2008, the court upheld Kentucky’s use of a three-drug execution method that employed a barbiturate as the first drug, intended to render the inmate unconscious. But because of problems obtaining drugs, no state uses the precise combination at issue in that earlier Supreme Court case.
Meanwhile, the current court challenge has prompted Oklahoma to approve nitrogen gas as an alternative death penalty method if lethal injections aren’t possible, either because of a court ruling or a drug shortage.