WASHINGTON -- A divided U.S. Supreme Court upheld the use of a lethal-injection drug used in three botched executions last year, as two dissenting justices said for the first time that the death penalty is probably unconstitutional.
The 5-4 majority rejected arguments that midazolam puts inmates at risk of a painful death. The decision gives more latitude to death-penalty states coping with a drug shortage that has forced them to alter their lethal-injection protocols.
After the ruling that Oklahoma could continue to use the sedative in its executions, the attorneys general of two other states that use the drug said the decision should allow them to resume executions.
Midazolam was used in three executions last year that left inmates writhing, moaning or gasping for air. Three Oklahoma death-row inmates argued that midazolam can't reliably put people into the deep, comalike unconsciousness needed to ensure they don't feel the effects of the lethal drug administered later.
Justice Samuel Alito said three Oklahoma inmates hadn't shown that "any risk of harm was substantial when compared to a known and available alternative method of execution."
Chief Justice John Roberts and Justices Clarence Thomas, Anthony Kennedy and Antonin Scalia joined Alito in the majority.
Alito pointed to an expert witness for the state who had said it was "a virtual certainty" that a 500-milligram dose of midazolam would render a person unconscious and unable to feel the deadly drug.
The inmates' expert witnesses "acknowledged that they had no contrary scientific proof," Alito wrote.
In dissent, Justice Sonia Sotomayor called that testimony "scientifically unsupported and implausible."
The majority opinion leaves the inmates "exposed to what may well be the chemical equivalent of being burned at the stake," Sotomayor wrote. Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan joined that dissent.
Breyer and Ginsburg became the first on the current court to say the death penalty probably violates the constitutional ban on cruel and unusual punishment. Saying capital punishment in the U.S. has become deeply flawed, Breyer cited evidence that innocent people had been sentenced to death and said "unconscionably long delays" had undermined the death penalty's purposes.
"We can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty's application," Breyer wrote for the pair. "We cannot have both."
Scalia likened Breyer's opinion to the court's ruling last week legalizing gay marriage. Both opinions sought to take important questions away from the American people, Scalia said, taking the unusual step of summarizing his concurrence from the bench.
"I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough," Scalia wrote.
The case is Glossip v. Gross.
A death in Oklahoma
Oklahoma is one of four states to have used midazolam, along with Florida, Ohio and Arizona.
The case was the court's first look at execution methods since 2008, when it upheld what was then a widely used three-drug combination.
States turned to midazolam after boycotts by European companies made it harder for officials to acquire other sedatives, including the one that was at issue in the 2008 case.
Oklahoma used midazolam for the first time in April 2014, when Clayton Lockett writhed and moaned and took 43 minutes to die during his lethal injection.
A state investigation laid the primary blame on problems inserting a needle into Lockett's veins. Oklahoma has since revamped its procedures for placing an intravenous line and dealing with mishaps during an execution.
The three Oklahoma inmates facing execution are Richard Glossip, John Grant and Benjamin Cole. Glossip was sentenced to death for his role in a murder-for-hire scheme, Grant for stabbing a prison food-service worker to death, and Cole for killing his 9-month-old daughter.
The 5-4 ruling was foreshadowed by the unusual circumstances that led to Supreme Court review. In January, five justices let Oklahoma use midazolam to execute Charles Warner, one of the inmates who originally filed the challenge. The execution took place over the dissent of the court's four Democratic appointees.
Warner showed no signs of obvious distress during his Jan. 15 execution.
Less than two weeks later, the court agreed to hear the appeal by the remaining three inmates. Under the court's rules, it takes five justices to halt an execution but only four to consider an appeal.
Executions using midazolam in Ohio and Arizona also encountered problems. In January 2014, Ohio inmate Dennis McGuire gasped for air for 25 minutes before dying. In July, the Arizona execution of Joseph Wood took almost two hours as he was injected with 15 times the planned dosage of midazolam.
After the Monday ruling, Florida's attorney general asked the state Supreme Court to lift a stay of execution that was put into place earlier this year. Executions in Florida are carried out using the same combination of drugs that Oklahoma uses, which is why Jorge Labarga, chief justice of the Florida Supreme Court, ordered a stay.
Florida, which has executed the fourth-most inmates of any state since the death penalty was reinstated in 1976, has used the drug since 2013, carrying out executions without witnesses reporting problems. But the Florida Supreme Court said in February that it was staying an execution until after the U.S. Supreme Court concluded its review.
Pam Bondi, the Florida attorney general, asked her state's Supreme Court to vacate the stay now that the execution protocol has been upheld.
Meanwhile, Alabama Attorney General Luther Strange released a statement praising the Supreme Court for its decision. A federal judge in Alabama said the state should hold off on any executions until after the Supreme Court ruling came down because the state has a similar execution protocol.
"Opponents of lethal injections have repeatedly used court challenges of certain lethal injection drugs as ways to delay or avoid lawful executions," Strange said. "The U.S. Supreme Court confirmed our belief that executions using these lethal injection drugs are not cruel and unusual punishment, and therefore are not prohibited under the Eighth Amendment of the U.S. Constitution."
Strange's office said that the decision is likely to clear the way for Alabama to resume executions as well.
Authorities in Oklahoma said they were planning to resume executions now that the protocol has been upheld.
Information for this article was contributed by Greg Stohr of Bloomberg News and by Mark Berman of The Washington Post.
A Section on 06/30/2015