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Supreme Court upholds use of midazolam for executions

A gurney sits in the execution chamber at the Oklahoma State Penitentiary in McAlester. On Monday, the U.S. Supreme Court ruled 5-4 in a case from Oklahoma that the drug midazolam can be used in executions without violating the Eighth Amendment.
A gurney sits in the execution chamber at the Oklahoma State Penitentiary in McAlester. On Monday, the U.S. Supreme Court ruled 5-4 in a case from Oklahoma that the drug midazolam can be used in executions without violating the Eighth Amendment.
Published Jun. 30, 2015

WASHINGTON — The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.

In the process, two dissenting members of the court — Justices Stephen Breyer and Ruth Bader Ginsburg — came very close to announcing that they were ready to rule the death penalty unconstitutional. This gave rise to a slashing debate with Justices Antonin Scalia and Clarence Thomas about the reliability and effectiveness of the punishment, a dispute that overshadowed the core issue in the case.

The 5-4 decision on the execution drug broke along familiar lines, with Justice Anthony Kennedy joining the court's more conservative members to allow its use.

After the Supreme Court decided to hear the case, the Florida Supreme Court halted the execution of Jerry Correll, who was convicted in 1986 of stabbing his ex-wife, their daughter and her mother and sister in Orlando.

"Without a stay of execution in this case, Florida risks the unconstitutional execution of Correll, for which there is no remedy," Chief Justice Jorge Labarga wrote in February. "In contrast, a stay pending determination of the issue in the United States Supreme Court will not prejudice the State and, more importantly, will ensure that Florida does not risk an unconstitutional execution."

After Monday's ruling, Florida Attorney General Pam Bondi asked the Florida court to vacate its stay.

Writing for the majority in Monday's ruling, Justice Samuel Alito said the Oklahoma inmates had failed to identify an available and preferable method of execution and also failed to make the case that the challenged drug entailed a substantial risk of severe pain.

The drug, the sedative midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other drugs that cause severe pain.

In dissent, Justice Sonia Sotomayor, who joined the other three members of the court's liberal wing, said, "The court's available-alternative requirement leads to patently absurd consequences."

"Petitioners contend that Oklahoma's current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive," Sotomayor wrote. "But 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."

Breyer, Ginsburg and Justice Elena Kagan joined Sotomayor's dissent.

In a second, more sweeping dissent, Breyer, joined by Ginsburg, said it was time to consider a larger issue.

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

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In a 46-page dissent that included charts and maps, he said "it is highly likely that the death penalty violates the Eighth Amendment," which bars cruel and unusual punishments. He said there was evidence that innocent people have been executed, that death row exonerations were frequent, that death sentences were imposed arbitrarily, and that the capital justice system was warped by racial discrimination and politics.

Breyer added that there was scant reason to think that the death penalty deterred crime and that long delays between death sentences and executions might themselves violate the Eighth Amendment. He noted that most of the country did not use the death penalty and that the United States was an international outlier in embracing it.

Scalia responded to what he called "Justice Breyer's plea for judicial abolition of the death penalty" by calling it "gobbledy gook." The punishment is contemplated by the Constitution, Scalia said, and disingenuously opposed on grounds created by its opponents.

The challenge to the execution drug was brought by four condemned inmates in Oklahoma, who said it did not reliably render the person unconscious and so violated the Eighth Amendment. Lower courts disagreed.

Oklahoma and several other states, including Florida, started to use midazolam in executions after manufacturers in Europe and the United States refused to sell them the barbiturates that were traditionally used to produce unconsciousness.

Alito suggested that condemned inmates should not benefit from the shortages, saying that "anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences."

Chief Justice John Roberts and Scalia, Kennedy and Thomas joined the majority opinion.

In dissent, Sotomayor said the shortages had produced real risks.

"The execution protocols states hurriedly devise as they scramble to locate new and untested drugs," she wrote, "are all the more likely to be cruel and unusual — presumably, these drugs would have been the states' first choice were they in fact more effective."

Lawyers for the Oklahoma inmates, with the support of experts in pharmacology and anesthetics, said midazolam, even if properly administered, was unreliable. They pointed to three executions last year that seemed to go awry.

In Oklahoma in April 2014, Clayton Lockett regained consciousness during the execution procedure, writhing and moaning after the intravenous line was improperly placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to gasp and choke for extended periods.

Information from Times staff writer Michael Auslen was used in this report.