In the 2015 case of Glossip v. Gross, a group of inmates from Oklahoma argued that using midazolam violated the Eighth Amendment because it might not in fact prevent an inmate from feeling excruciating pain, even if he or she would appear unconscious. In an earlier case, the Supreme Court had already held that states are not required to prove that a method of execution is entirely pain-free. In an opinion by Justice Samuel Alito, the majority in Glossip rejected the challenge to midazolam. Alito reasoned that since the death penalty had been held to be constitutional, there must be a constitutional means of carrying it out. “Holding that the Eighth Amendment demands the elimination of essentially all risk of pain,” Alito wrote, “would effectively outlaw the death penalty altogether.”

In the Glossip oral argument, Alito complained bitterly from the bench about “what amounts to guerilla warfare against the death penalty” by anti-execution groups. His ire was raised by efforts by death-penalty opponents—most effectively the London-based nonprofit Reprieve—to alert drug manufacturers to the uses to which their products were being put. Reprieve has pointed out to European pharmaceutical companies that, under European Union law, it is illegal to export any object or substance to be used in executions. The group works with the companies to construct controls on the uses to which these drugs may be put.

The notion that this polite civil-society lobbying is a “guerrilla war” is so jejune that even conservative columnist George Will had to rebuke Alito, writing that “Public agitation against capital punishment is not relevant to judicial reasoning.”

On the other hand, courts might want to take note of Arkansas’s essentially lawless position. Seeking poisons to take human life, the state was thwarted because the makers of medicines refused to collaborate in killing. The state then persuaded some company somewhere to violate a valid contract and turn over these drugs to be used contrary to their purpose. In an earlier case involving the new “cocktail,” the state admitted that it had knowingly bought the drugs from distributors who were violating contracts with the drug-makers. The suppliers only agreed to the sale, the state admits, because a change in Arkansas state law made their identities exempt from disclosure under the state’s public records law. Asked about this, Judd Deere, communications director for Arkansas Attorney General Leslie Rutledge, responded, “I don’t have any further comment.”

I wondered whether any of these companies had considered legal action, either by suing the state to find the name of the faithless supplier or by intervening in the current federal challenge to the executions.

In an email statement to me Tuesday, a spokesperson for Hikma, the manufacturer of the midazolam to be used by Arkansas, said, “We have made our objections to the misuse of any of our products for lethal injection known to the governor, attorney general and Department of Corrections both in person and multiple times in writing. Even though we have limited information due to the secrecy laws, we continue to explore what legal channels might be open to us. As I’m sure you can appreciate, we cannot comment on any possible litigation beyond this.”