The U.S. Supreme Court on Monday dealt a major blow to death penalty opponents, upholding the use of a controversial drug as part of a three-drug execution cocktail. The vote was 5-4, with unusually passionate and sometimes bitter opinions from the majority and dissenting justices.
For years, executions have been carried out with a three-drug cocktail. Previously, the first drug, sodium thiopental, has put the prisoner in a deep, comalike state so that he will not feel the extremely painful second and third drugs used to kill him. In recent years, however, drug manufacturers and pharmacists increasingly have refused to make sodium thiopental, or a sister drug, pentobarbital, available for executions.
So some states have substituted a sedative named midazolam instead. Midazolam, however, is not approved by the FDA as effective for achieving a deep, comalike state, and death penalty opponents have claimed that prisoners are thus subject to feeling excruciating pain, as evidenced in some botched executions. The states, led by Oklahoma, countered that properly used in very high doses, midazolam is an appropriate drug, and they prevailed in the Supreme Court on Monday.
Writing for the court majority, Justice Samuel Alito said that death penalty opponents had failed to show that there is an alternative method of execution that is less painful. He rejected the argument that midazolam cannot achieve a sufficient degree of unconsciousness with massive doses of the drug. And he said that the only reason the traditional anesthesia drugs are often unavailable is because of pressure on manufacturers from death penalty opponents. Joining him in the majority were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Chief Justice John Roberts.
Kent Scheidegger of the Criminal Justice Legal Foundation praised the decision, noting that it would make it more difficult for death row inmates to challenge methods of execution. He conceded that midazolam is not an "optimum drug" but echoed Justice Alito's opinion in saying that death penalty opponents have themselves to blame for lobbying against genuine anesthetic drugs like pentobarbital.
"To the extent that there is a problem with midazolam, it's the people who have blocked access to pentobarbital who are responsible for it. It's on their head," he said.
But Bryan Stevenson, director of the Equal Justice Initiative, dismissed that argument.
"It's just not a brand or marketing tool that a lot of companies want. So to assign that to a minority cabal of anti-death penalty advocates is a little more ... far reaching than I think you would typically see from the court," he said.
There were two dissenting opinions, and one extraordinary rebuttal to the dissents, all read from the bench on Monday.
The principal dissent, written by Justice Sonia Sotomayor, called the court's new rule requiring proof of a more humane and available drug "patently absurd." Under the majority's reasoning, said Sotomayor, it would not matter if the prisoner was being "drawn and quartered, slowly tortured to death, or actually burned at the stake," as long as there was no more humane method of execution available. The Constitution's ban on cruel and unusual punishment does not permit that, she said. Joining her dissent were Justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer.
Breyer wrote separately for himself and Justice Ginsburg, arguing that the time has come for the court to reconsider whether the death penalty is constitutional. For 40 years, he noted, courts have tried to make capital punishment more consistent, reliable and accurate. But he said experience has shown that these procedures and protections "do not work."
We now have "persuasive evidence" that innocent people have been executed, he said, while more than 100 individuals sentenced to death have later been completely exonerated. Death sentences are fewer and fewer and are carried out decades after the crime is committed, he noted. We "cannot have it both ways." Either the death penalty will be swift but unreliable with many innocents wrongly executed, or — as is the case now — there will be long delays that undermine the notion of deterrence and punishment, he said.
In a perhaps unprecedented oral rebuttal to a dissent from the bench, Justice Scalia called Breyer's opinion "gobbledygook." "Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes," he said. "Time and again, this Court has upheld that decision. And time and again a vocal minority of this Court ... has sought to replace the judgments of the People with their own standards of decency."
The attitudes on display in the majority opinion, concurrences and dissents are evidence of the burden that death penalty cases put on the court, said Bryan Stevenson, of the Equal Justice Initiative.
"I think the Court is just feeling the stress of 30 years of intense warfare over this essentially fundamental question of whether we should be killing people or not," he said.
David Von Drehle, who has written about the death penalty for years, calls this an "Alice in Wonderland" moment for the nation's death penalty jurisprudence.
"I tell people who argue with me about this, it's not about what you want to have happen or what you think is right thing to happen," he said. "After 40 years of this experiment, we have a reality we have to face up to: that it ain't workin'."
As proof, Von Drehle points to California, where there are 746 people on death row, but the last execution was nearly a decade ago.
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