The Supreme Court ruled 5 to 4 on Monday to uphold a procedure used by states to carry out executions by lethal injection.
The justices were considering a challenge brought by death-row inmates in Oklahoma, who allege that the use of a sedative called midazolam has resulted in troubling executions that violate the Constitution’s prohibition on cruel and unusual punishment. Problematic executions in Oklahoma and elsewhere have captured national headlines since early last year.
Justice Samuel A. Alito Jr. wrote for the majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
Alito said the prisoners failed to identify a “known and available alternative method of execution that entails a lesser risk of pain,” which he said was required under the court’s previous ruling upholding lethal injection. And he said plaintiffs had failed to establish that a massive dose of midazolam “entails a substantial risk of severe pain.”
Justice Sonia Sotomayor wrote a dissent, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan.
Sotomayor said the majority’s determination that midazolam does not cause an intolerable risk of severe pain “is factually wrong.”
In addition, she wrote: “The court’s conclusion that petitioners’ challenge also fails because they identified no available alternative means by which the state may kill them is legally indefensible.”
The court’s announcement of the decision highlighted the tension among the justices on the death penalty. As usual, the author of the majority opinion, Alito, read a summary.
But Sotomayor read part of her dissent from the bench, a signal of how strongly she disagreed, and Breyer took the occasion to say he and Ginsburg had doubts about whether the death penalty could be carried out in a way that doesn’t violate the Eighth Amendment’s protection against cruel and unusual punishment.
“I think it is high likely” that it can, Breyer wrote. “At the very least, the court should call for full briefing on the basic question.”
Then Scalia read a response to Breyer. He said sarcastically that five justices last week took the issue of same-sex marriage away from the democratic process, and now two wanted to do the same with capital punishment.
Dale Baich, one of the attorneys for the death row prisoners, said in a statement: “Because the court declined to require that states follow scientific guidelines in determining their lethal injection procedures, states will be allowed to conduct additional human experimentation when they carry out executions by lethal injection.”
Douglas Berman, a law professor at Ohio State University and an expert on criminal sentencing, said the decision was a “big win” for states trying to carry out executions.
And he found it significant that only two justices called for another look at the constitutionality of the death penalty.
“Seven current justices apparently do not question the deathy penalty’s essential constitutionality, including the five youngest justices,” Berman said in a statement. That “suggests to me that abolitionists still have a lot more work to do.”
The case was the subject of a tense oral argument, with conservative and liberal justices unusually antagonistic with the lawyers and with each other. The comments showed a deep distrust of the lawyers trying to delay executions by objecting to the process used, and of state officials who minimize the risk of unconstitutional pain their procedures might cause.
The arguments came a year to the day after an execution in Oklahoma left an inmate writhing and grimacing on a gurney, drawing international attention to issues facing the lethal injection process in the United States.
The justices were revisiting the issue of lethal injection for the first time since 2008, when they upheld a three-drug combination and said it did not violate the Constitution’s ban on cruel and unusual punishment. At the time, these drugs were used across the country.
But an ongoing shortage of lethal injection drugs, arising largely from European objections to capital punishment, has stopped the production of those drugs and caused states to find new ones, create different protocols and seek other methods.
When Oklahoma officials could no longer obtain the drug they used, they turned to the drug midazolam. It was used in three problematic executions last year, turning it into a focal point for debates about lethal injections.
The most high-profile of these was Oklahoma’s bungled attempt to execute convicted murderer Clayton Lockett. He kicked, grimaced and survived for 43 minutes after the execution began. He eventually died after officials had already halted the process, and a state investigation blamed the bungled procedure on the manner in which the execution team inserted the needle.
Midazolam was also used last year in the execution of an Arizona inmate who gasped and snorted and took nearly two hours to die, as well as the lethal injection of an Ohio inmate who gasped and choked before dying after nearly half an hour.
The justices’ intense oral argument in April seemed to indicate lingering tensions over the manner in which the Oklahoma case was accepted.
In Oklahoma’s first execution since Lockett was put to death, the state planned to put to death Charles Warner, who was convicted of raping and murdering an 11-month-old.
Warner was among the inmates who asked the court to review the use of midazolam, and the court’s four liberals wanted to stay that execution. But they could not get a needed fifth vote from one of the conservatives.
Sotomayor wrote in a dissent that she found the idea that midazolam could “work as intended difficult to accept given recent experience with the use of this drug.”
The court accepted the case soon after, when only four votes were needed to grant review.
The case is Glossip v. Gross.