Supreme Court Rules Controversial Drug Can Be Used In Executions

Death-row inmates challenged Oklahoma's use of the drug midazolam — at issue in several botched executions in 2014.

WASHINGTON — The Supreme Court on Monday ruled that the use of the controversial lethal injection drug midazolam — a sedative — in executions does not violate the Constitution.

In a 5-4 opinion, Justice Samuel Alito wrote for the court that Oklahoma prisoners failed in their challenge because they didn't provide evidence of an alternative method of execution and because the Supreme Court found no clear error in the trial court's ruling that midazolam "is highly likely to render a person unable to feel pain during an execution."

Although the ruling has clear implications for the several states that choose to employ midazolam in executions — states like Florida, Arizona, and Louisiana — it will have an effect on every state that carries out executions.

The Court set a high bar for inmates challenging their methods of execution, making it clear that they must do more than show the method is likely to put them through pain. Inmates must instead propose a better method.

Alito wrote that "some risk of pain is inherent in every execution," but added that doesn't mean the methods are unconstitutional. "After all, while most humans wish to die a painless death, many do not have that good fortune."

In dissenting, however, Justice Stephen Breyer — joined by Justice Ruth Bader Ginsburg — raised the question of whether the constitutionality of the death penalty, "in and of itself," should be revisited.

The challenge to Oklahoma's use of the drug followed the April 2014 execution of Clayton Lockett. After having been declared unconscious after the midazolam injection — the first drug in the state's three-drug execution protocol — Lockett began moving on the gurney and shaking uncontrollably. Lockett died roughly 10 minutes after the execution was called off.

The more liberal Justices questioned the findings of the state's expert, pointing out that he "cited no scholarly research in support of his opinions," relying primarily on

Alito dismissed the criticisms, arguing the alleged errors were "peripheral aspects" that don't establish that midazolam is "sure or very likely to result in needless suffering."

The ruling was expected to be close, with Justice Anthony Kennedy as the swing vote. He asked just a couple of questions during oral arguments, and did not author the opinion.

The majority also made the assertion that federal courts are not well equipped to handle debates over methods of execution.

"Challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts. Although we must invalidate a lethal injection protocol if it violates the Eighth Amendment, federal courts should not embroil themselves in ongoing scientific controversies beyond their expertise."

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, disagreed in a dissent that questions the constitutionality of the death penalty at all.

"Lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quin­tessentially judicial matters," Breyer wrote.

"In the last four decades, considerable evidence has accumulated that [legislative] responses have not worked. Thus we are left with a judicial responsibility."

Justice Antonin Scalia, however, countered that it was "Groundhog Day" again.

"Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes. Time and again, this Court has upheld that decision. And time and again, a vocal minority of this Court has insisted that things have 'changed radically,' and has sought to replace the judgments of the People with their own standards of decency," Scalia wrote.

The questions about the use of midazolam in executions arose over the course of 2014, when executions in several states where the drug is used — in Ohio and Arizona, in addition to Oklahoma — resulted in the execution taking longer than expected and reports that the person being executed either was still moving or otherwise showed signs of remaining conscious during the execution.

Although the doses and drug pairings varied from state to state, each used midazolam in an attempt to sedate the inmate. Oklahoma follows midazolam with a drug that paralyzes the inmate, and then a drug that stops their heart and would feel like fire if the inmate was conscious.

In their dissent, the four liberal Justices said the ruling "leaves petitioners exposed to what may well be the chemical equiva­lent of being burned at the stake."

In a statement, Attorney General Scott Pruitt indicated that the state will begin asking for new execution dates to be set.

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