Supreme Court refuses to ban controversial method of execution

Richard Wolf | USA TODAY

Show Caption Hide Caption Supreme Court rules on lethal injection, clean air regulations On the final day for the Supreme Court's decisions, the justices weighed in on three important cases involving lethal injections, clean air and fair elections.

WASHINGTON – A fiercely divided Supreme Court refused Monday to limit states' use of a controversial execution method that dissenters compared to being burned at the stake, leading two justices to contend that the death penalty is most likely unconstitutional.

The court's conservative majority said Oklahoma prisoners challenging the use of a three-drug cocktail failed to prove that it cannot mask excessive pain and to identify a better alternative, given a drug shortage that has forced some states to experiment with less trusted alternatives.

Justice Samuel Alito wrote the 5-4 decision for the argumentative court. All four liberal justices dissented vehemently; two said capital punishment is probably unconstitutional and urged the court to consider a broad challenge in the future.

In an unusual display of hostility on the final day of the court's term, four justices spoke from the bench on the case -- two defending the decision, two contesting it.

The conservative majority ruled that to prohibit the use of midazolam, a sedative that has left some death row prisoners seemingly able to feel pain from the next two drugs in a three-drug cocktail, would have unfairly tied the states' hands.

"While most humans wish to die a painless death, many do not have that good fortune," Alito wrote. "Holding that the 8th Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether."

Justice Sonia Sotomayor wrote the principal dissent for the four more liberal justices, charging that the ruling "leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake."

"The contortions necessary to save this particular lethal injection protocol are not worth the price," she said, shaking her head vehemently for effect.

Justice Stephen Breyer went further in a separate dissent. He said the high court should consider the overall constitutionality of the death penalty, something it has not done since 1976. Justice Ruth Bader Ginsburg agreed.

"Rather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution," Breyer said, citing four reasons -- the potential for error, arbitrary application, decades-long delays, and increasing numbers of states and counties abandoning its use.

That elicited a caustic response from Justice Antonin Scalia, the fourth justice to speak from the bench on the case, which is unusual. He compared the effort by Breyer and Ginsburg to get the court to reconsider the death penalty to the decision last Friday by five justices legalizing same-sex marriage. In both cases, he said, the people – not the court – should decide.

"Maybe we should celebrate that two justices are willing to kill the death penalty outright instead of pecking it to death," Scalia quipped.

The case, heard on the court's last day of oral arguments, was filed by three death row inmates challenging Oklahoma's method of lethal injection. A fourth inmate was put to death while the case was pending when the high court refused to halt his execution.

The ruling means that the state can now go forward with those executions.

"The families in these three cases have waited a combined 48 years for justice," Oklahoma Attorney General Scott Pruitt said. "Now that the legal issues have been settled, the state can proceed with ensuring that justice is served for the victims of these horrible and tragic crimes."

Midazolam was used in three 2014 executions in Oklahoma, Arizona and Ohio in which prisoners struggled, groaned or writhed in apparent pain during the administration of drugs used to paralyze them and stop their hearts. In 12 other executions, the drug cocktail did not cause obvious mishaps.

The problems with lethal injections are the result of states' inability to find pharmacies willing to provide the drugs that can render prisoners incapable of feeling pain. Pharmacies in Europe routinely refuse to help because of broad opposition to capital punishment; the European Union imposed an export ban in 2011. As a result, many states have turned to state-regulated compounding pharmacies in a process that has been shrouded in secrecy.

Last month, both the American Pharmacists Association and the International Academy of Compounding Pharmacists discouraged their members from participating in the process. The U.S. group called it "fundamentally contrary to the role of pharmacists as providers of health care."

The difficulties involved in lethal injections are forcing states with capital punishment laws to rejuvenate backup methods once viewed as beyond the pale. Tennessee would allow electrocution, Utah death by firing squad. Now Oklahoma lawmakers are moving toward legalizing the use of nitrogen gas.

Seven states have abolished the death penalty since 2004, most recently Nebraska, where state legislators overrode Gov. Pete Ricketts' veto. Several other states have imposed moratoriums on lethal injections because of problems, ranging from botched executions in Oklahoma and Ohio to a "cloudy" drug concoction in Georgia.

In Oklahoma, death-row inmates Richard Glossip, John Grant and Benjamin Cole – whose executions had been scheduled for January, February and March – brought the latest lawsuit. Glossip was convicted of paying another man to kill the owner of the Oklahoma City budget motel where he worked as manager. He has long declared his innocence.

The drug protocol in question is different from the one the high court upheld in a 2008 case from Kentucky. The court's four liberal justices claimed midazolam should be outlawed because it does not always prevent prisoners from feeling so much pain as to constitute cruel and unusual punishment, which the Constitution prohibits. Justice Elena Kagan likened it to "the feeling of being burned alive."

During oral arguments, some of the high court's conservatives charged that a "guerrilla war" by death penalty "abolitionists" contributed to the myriad problems states face in obtaining drugs from manufacturers and pharmacies.