Supreme Court refuses to ban controversial method of execution

Credit: Jacquelyn Martin, AP
A vehicle parked near the Supreme Court displays a sign that says "Stop The Death Penalty Now" on June 29, 2015
By: Richard Wolf
USA Today
Monday, June 29, 2015

WASHINGTON -- The Supreme Court refused Monday to limit states' use of a controversial execution method that opponents have likened to being burned alive.

The court's conservative majority said lethal injection remains the most humane method of execution. During oral arguments in April, they had blamed opponents for exacerbating a shortage of drugs that has forced some states to experiment with less reliable alternatives.

Justice Samuel Alito wrote the decision for the court. All four liberal justices dissented vehemently, and two of them said the entire death penalty likely is unconstitutional.

To prohibit the use of midazolam, a sedative that has left some death row prisoners apparently able to feel pain from the next two drugs in a three-drug cocktail, would have unfairly tied the states' hands, the justices ruled.

"While most humans wish to die a painless death, many do not have that good fortune," Alito wrote. "Holding that the 8th Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether."

Justice Sonia Sotomayor wrote the principal dissent for the four more liberal justices, charging that the ruling "leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake."

Justice Stephen Breyer went further in a separate dissent. He said the high court should consider the overall constitutionality of the death penalty, once and for all. Justice Ruth Bader Ginsburg agreed.

"Rather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution," Breyer said.

A vehicle parked near the Supreme Court in Washington displays signage that says "Stop The Death Penalty Now" on June 29, 2015. (Photo: Jacquelyn Martin, AP)
The case, heard on the court's last day of oral arguments, was filed by three death row inmates challenging Oklahoma's method of lethal injection. A fourth inmate was put to death while the case was pending when the high court refused to halt his execution.

Midazolam was used in three 2014 executions in Oklahoma, Arizona and Ohio in which prisoners struggled, groaned or writhed in apparent pain during the administration of drugs used to paralyze them and stop their hearts. In 12 other executions, the drug cocktail did not cause obvious mishaps.

The problems with lethal injections are the result of states' inability to find pharmacies willing to provide the drugs that can render prisoners incapable of feeling pain. Pharmacies in Europe routinely refuse to help because of broad opposition to capital punishment; the European Union imposed an export ban in 2011. As a result, many states have turned to state-regulated compounding pharmacies in a process that has been shrouded in secrecy.

Last month, both the American Pharmacists Association and the International Academy of Compounding Pharmacists discouraged their members from participating in the process. The U.S. group called it "fundamentally contrary to the role of pharmacists as providers of health care."

The difficulties involved in lethal injections are forcing states with capital punishment laws to rejuvenate backup methods once viewed as beyond the pale. Tennessee would allow electrocution, Utah death by firing squad. Now Oklahoma lawmakers are moving toward legalizing the use of nitrogen gas.

Seven states have abolished the death penalty since 2004, most recently Nebraska, where state legislators overrode Gov. Pete Ricketts' veto. Several other states have imposed moratoria on lethal injections because of problems, ranging from botched executions in Oklahoma and Ohio to a "cloudy" drug concoction in Georgia.

In Oklahoma, death-row inmates Richard Glossip, John Grant and Benjamin Cole -- whose executions had been scheduled for January, February and March -- brought the latest lawsuit. Glossip was convicted of paying another man to kill the owner of the Oklahoma City budget motel where he worked as manager. He has long declared his innocence.

The drug protocol in question is different from the one the high court upheld in a 2008 case from Kentucky. The court's four liberal justices claimed midazolam should be outlawed because it does not always prevent prisoners from feeling so much pain as to constitute cruel and unusual punishment, which the Constitution prohibits. Justice Elena Kagan likened it to "the feeling of being burned alive."

During oral arguments, some of the high court's conservatives charged that a "guerrilla war" by death penalty "abolitionists" contributed to the myriad problems states face in obtaining drugs from manufacturers and pharmacies.