The U.S. Supreme Court on Monday upheld the use of a controversial drug for lethal injection in executions.
The ruling was 5-4 with Justice Samuel Alito writing for the majority, along with John Roberts, Antonin Scalia, Anthony Kennedy and Clarence Thomas.
“The prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of- execution claims,” Alito wrote. “Second, the District Court did not establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”
The dissent was written Justice Sonia Sotomayor. In a separate dissent, Justice Stephen Breyer raises the question of whether the the court should revisit the death penalty.
“I would ask for a full briefing on a more basic question: whether the death penalty violates the constitution.”
Oklahoma Attorney General Scott Pruitt commented on the U.S. Supreme Court’s decision moments after it was announced.
“The state of Oklahoma is vested with the authority to carry out the sentence of death handed out by juries for the most heinous of crimes. State officials act deliberately and thoughtfully in carrying out this responsibility. This marks the eighth time a court has reviewed and upheld as constitutional the lethal injection protocol used by Oklahoma. The Court’s ruling preserves the ability of the Department of Corrections to proceed with carrying out the punishment of death. The state appreciates the justices’ thoughtful consideration of these important issues. I also want to thank Solicitor General Patrick Wyrick and the entire trial team at the Attorney General’s Office for their outstanding legal work in arguing and winning this case before the highest court in the land,” Attorney General Pruitt said.
Gov. Mary Fallin also released the following statement after the court’s ruling.
“The Constitution is clearly not intended to prohibit the death penalty by lethal injection or the use of the sedative midazolam. I appreciate the Court’s ruling, which upholds the letter and the spirit of the law as it is written. My thanks go out to Attorney General Scott Pruitt, Solicitor General Patrick Wyrick and their legal team for aggressively and successfully representing the state on this issue.”
“Today’s 5-4 decision ignores the evidence and endorses a state’s right to torture people to death absent any other alternative. This reading of the Constitution cannot and should not stand. As powerfully set forth in the dissent, capital punishment in the United States is unreliable and arbitrary, racially biased and geographically skewed. Much of America has turned away from the death penalty, leaving only a handful of counties insisting on putting people to death. The time has come to end this nation’s disastrous experiment with capital punishment,” said Cassandra Stubbs, director of the Capital Punishment Project of the ACLU.
The Supreme Court heard arguments in April about the lethal injection protocol used for Clayton Lockett‘s botched execution in 2014.
The constitutionality of the death penalty was not at issue in the case, just the efficacy of a particular drug called midazolam, which is considered a sedative, and was used in Oklahoma as the first of a three drug protocol in Lockett’s death.
The justices were expected to decide whether midazolam passes constitutional muster and offer guidance to states that have lately been experimenting with new protocols due to a shortage of lethal injection drugs.
Other botched executions using midazolam have occurred in Ohio and Arizona. While Ohio has announced it will no longer use the drug, it is still a part of the execution protocol in several states.
Six states – Alabama, Arizona, Florida, Louisiana, Oklahoma and Virginia – have midazolam as an option in for use in lethal injections in their protocols.
Lockett was left writhing on the gurney, gasping for breath before he died 43 minutes after his execution began.
The state later did a full investigation into the death and concluded it was in large part due to the execution team’s failure to properly insert an IV line.
The state says that its updated its protocol — in part by increasing the dosage of midazolam — and that it has since been upheld by the lower courts.
Patrick Wyrick, the Solicitor General of Oklahoma said the state has improved its protocol since Lockett’s death and that the current protocol “does not present a substantial risk of severe pain and cannot be considered cruel.”
However, three inmates on death row – Richard E. Glossip, John M. Grant and Benjamin R. Cole – argue the drug violates the 8th Amendment’s ban on cruel and unusual punishment because it fails to generate “a deep, coma like unconsciousness.”
One attorney argues that midazolam “can’t do what it’s meant to do” and that states using it should go back to the drawing board and find another drug.
Before using midazolam as the first drug in the protocol, Oklahoma used sodium thiopental and then pentobarbital as sedatives, but was forced to switch to midazolam after those drugs became unavailable.
The case comes when 70% of Americans say they don’t consider the death penalty itself to be “cruel and unusual punishment,” according to a recent CNN/ORC poll.
Because of the shortage of lethal injection drugs, states are beginning to look at different back-up methods of execution including firing squads, the electric chair and the use of nitrogen gas.
AG Pruitt says now that the U.S. Supreme Court has ruled Oklahoma’s lethal injection protocol is constitutional, he will notify the Oklahoma Court of Appeals and let them know they are now able to set execution dates for Richard Glossip, John Grant and Benjamin Cole.
“The families in these three cases have waited a combined 48 years for justice. Now that the legal issues have been settled, the state can proceed with ensuring that justice is served for the victims of these horrible and tragic crimes,” Attorney General Pruitt said.
Pruitt is recommending for the next execution to be scheduled as early as August 5, 2015.