Supreme Court justices sparred along ideological lines during oral arguments Wednesday as they openly questioned a knotty hypothetical: If certain lethal injections feel like "being burned alive from the inside," then what standards of drug cocktails must be met -- if any -- to ensure that death row inmates don't suffer cruel and unusual punishment when being put to death?
“Suppose we said we’re going to burn you at the stake, but before we do, we give you an anesthetic with unknown effects."'
After a series of botched executions in the last year brought increased scrutiny to how the U.S. carries out capital punishment, the Supreme Court on Wednesday heard a challenge to a potential source of the problem: a sedative called midazolam, the first in a three-drug cocktail used in several executions that went horribly awry. The challenge, brought by three convicted killers in Oklahoma, argues that midazolam does not effectively guarantee that an inmate is unconscious for the remainder of the execution. Attorneys for the prisoners say this creates a substantial risk of causing severe pain to the point of violating the Eighth Amendment.
Liberal members of the court -- namely Justice Elena Kagan and Justice Sonia Sotomayor -- appeared to strongly support the prisoners' arguments in questioning the science and known effects of the lethal doses.
“Suppose we said we’re going to burn you at the stake, but before we do, we give you an anesthetic with unknown effects,” said Kagan, adding that the heart-stopping drug potassium chloride used in lethal injections amounted to "being burned alive from the inside."
The conservative justices on the bench appeared skeptical that it was up to the court in this case to abolish methods of carrying out capital punishment in light of a shortage of lethal drugs and manufacturer boycotts in Europe that have forced states to find new drugs to satisfy the demand. Justice Samuel Alito called efforts to further limit a state’s ability to obtain lethal drugs as amounting to a “guerrilla war against the death penalty.”
“And so the states are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated,” Alito continued.
Robin Konrad, an attorney arguing on behalf of the Oklahoma prisoners, said the availability of alternative drugs, or lack thereof, should not be a factor in determining whether midazolam causes severe pain. “The fact that the state chooses a certain method should not have bearing on whether that method is constitutional,” Konrad said.
Wednesday's hearing marked the first time the Supreme Court has taken a case on lethal injection since 2008, when it upheld the use of a three-drug cocktail, finding that it did not violate a death row inmate’s Eighth Amendment rights. But in the last year, a string of botched executions, sharply worded court opinions and 11th-hour appeals from death row inmates has repeatedly called into question the efficacy of lethal injection and sparked a national conversation on how the U.S. kills its condemned.
Originally, there had been a fourth Oklahoma prisoner signed onto the case. Charles Warner, convicted of the 1997 rape and murder of his girlfriend’s 11-month-old baby, also sought to combat the state's execution protocols. He was put to death in January, with his final words being “my body is on fire” as the lethal drugs were administered.
A little over a week later, the Supreme Court took up the case.
"Nothing you say or read to me, am I going to believe unless I see it with my own eyes."'
Warner’s execution appeared to be the final straw for the justices. Falling just one justice short of the number needed to halt the execution, Justice Sotomayor wrote in a scathing dissent in Warner’s stay denial that she was “deeply troubled” by the evidence that midazolam could not constitutionally be used in the three-drug cocktail. Sotomayor unleashed her wrath on the state’s key expert witness who appeared to draw conclusions in his testimony after simply reading about the sedative on Drugs.com.
Sotomayor came out swinging once again, saying she was "substantially disturbed" by the factual statements made in the state's brief that did not appear to be supported by medical literature.
"Nothing you say or read to me, am I going to believe unless I see it with my own eyes," she said.
It is unlikely that the high court’s ruling in June will have a sweeping impact or bring an end to capital punishment in the U.S. -- the court's decision is expected to be narrow in scope, directly impacting the three other states that have relied on the sedative midazolam. A number of executions have been put on hold since the Supreme Court announced that it would be taking the case as states wait for guidance.
States have been left to deal with the excruciating results of using unsourced and untested drugs in executions. The most infamous was described by a prison warden as a “bloody mess” -- Clayton Lockett, a convicted murderer whose execution lasted 43 minutes, bucked and writhed on his gurney. An Arizona execution lasted nearly two hours as witnesses said the condemned man gasped for air more than 600 times. In Ohio, a “prolonged” execution using an untested two-drug cocktail took 26 minutes to carry out.
The botched executions have spurred a national debate about finding the most effective and simultaneously humane methods to carry out capital punishment. For some states, the solution has meant ditching the death penalty entirely. Others have restored practices abandoned decades ago for being too “gruesome.”
Utah brought back the firing squad. Tennessee dusted off its electric chair. Oklahoma preempted the Supreme Court’s decision on lethal injection by allowing nitrogen gas to be used as a back-up in executions.
Sotomayor and Kagan acknowledged, with anguish, the alternatives to lethal injection being raised in states, as opposed to the abolition of the death penalty as a whole.
“There are other ways to kill people, regrettably,” Sotomayor said.