TWO VIEWS
“There are other ways to kill people, regrettably, that are painless,”
Justice Sonia Sotomayor
Justice Samuel Alito
Supreme Court justices engaged in an impassioned debate Wednesday about capital punishment, trading unusually combative words in a case involving a drug used in several botched executions.
The justices are considering the plea of death row inmates in Oklahoma to outlaw the sedative midazolam. The inmates say it is ineffective in preventing searing pain from other drugs used in lethal injections, a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.
But Wednesday’s session featured broader complaints from conservative justices that death penalty opponents are waging what Justice Samuel Alito called a “guerrilla war” against capital punishment by working to limit the supply of more effective drugs.
On the other side, among the court’s liberals, Justice Elena Kagan contended that the way states carry out most executions amounts to having prisoners “burned alive from the inside.”
The debate came a year to the day after a problematic execution in Oklahoma gave rise to a lawsuit from death row inmates over the use of midazolam.
The outcome of the case could turn on a rather narrow question involving the discretion of the federal trial judge who initially heard the lawsuit and ruled against the inmates. But justices on both sides gave voice to larger concerns.
Justice Stephen Breyer said it’s not the inmates’ fault if the state can’t find drugs that work painlessly.
“Perhaps there is that larger question, that … if there is no method of executing a person that does not cause unacceptable pain, that, in addition to other things, might show that the death penalty is not consistent with the Eighth Amendment,” he said.
But the conservative justices said the court already has upheld the use of capital punishment and that ways of carrying out such sentencees must be provided. Justice Antonin Scalia said drugs that have not been challenged as ineffective or likely to cause pain have been “rendered unavailable by the abolitionist movement.”
Amid opposition to the death panelty, companies that manufacture the drugs have declined to sell them to state prison systems.
The Supreme Court’s involvement in the Oklahoma case began in January with an unusually public disagreement among the justices as it refused to block inmate Charles Warner’s execution. In a strongly worded dissent for the court’s four liberals, Justice Sonia Sotomayor wrote, “The questions before us are especially important now, given states’ increasing reliance on new and scientifically untested methods of execution.”
Eight days later, the justices agreed to hear the case of the three other Oklahoma prisoners. in appeals that have reached the court since then, Sotomayor, Breyer, Kagan and Justice Ruth Bader Ginsburg have voted to stop executions carried out in Texas, Missouri and Georgia.
Argument sessions often are rough-and-tumble affairs with justices cutting off lawyers with abandon. But on Wednesday the conservative justices complained about interruptions from their liberal colleagues.
Sotomayor’s
questioning of Oklahoma Solicitor General Patrick Wyrick was so aggressive that she drew a rebuke of sorts from Chief Justice John Roberts.
“To an extent that’s unusual even in this court, you have been listening rather than talking,” Roberts told her in granting Wyrick five additional minutes to present his argument.
Last April’s execution of Clayton Lockett was the first in which Oklahoma used midazolam, which has also been used in Arizona, Florida and Ohio. Lockett writhed on the gurney, moaned and clenched his teeth for several minutes before prison officials tried to halt the process. Lockett died after 43 minutes.
Executions in Arizona and Ohio that used midazolam also went on for longer than expected as the inmates gasped and made other noises before dying.
Meanwhile, the court challenge has prompted Oklahoma to approve nitrogen gas as an alternative death penalty method if lethal injections aren’t possible, either because of a court ruling or a drug shortage.
There are no reports of nitrogen gas ever being used to execute humans, and critics point out that some states ban its use to put animals to sleep.
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