THE Supreme Court has refused to limit states’ use of a controversial execution method that opponents have likened to being burned alive.
The high court’s conservative majority said Monday, June 29 that lethal injection remains the “most humane method of execution.” During oral arguments in April, they had blamed opponents for exacerbating a shortage of lethal drugs that has forced some states to experiment with less reliable alternatives.
Justice Samuel Alito wrote the decision for the court. All four liberal justices dissented vehemently, and two said that the entire death penalty likely is unconstitutional.
“To prohibit the use of midazolam, a sedative that has left some death row prisoners apparently able to feel pain from the next two drugs in a three-drug cocktail, would have unfairly tied the states’ hands,” the justices ruled.
“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 liberal justices, charging that the ruling “leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.”
Justice Stephen Breyer went further in a separate dissent, arguing that the high court should “consider the overall constitutionality of the death penalty, once and for all.”
“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. Justice Ruth Bader Ginsburg agreed.
That statement 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 reconsider the death penalty to last week’s landmark vote by the majority of justices legalizing same-sex marriage.
“In both cases, the people should decide,” Scalia quipped. “Maybe we should celebrate that two justices are willing to kill the death penalty outright instead of pecking it to death.”
Glossip v. Gross, heard on the court’s last day of oral arguments, was filed by three death row inmates—Richard Glossip, John Grant and Benjamin Cole; whose executions were scheduled for earlier this year—challenging Oklahoma’s method of lethal injection. A fourth inmate, Charles F. Warner, was put to death while the case was pending, when the high court refused to halt his execution.
The three inmates argued that the drug, which renders the person unconscious, violates the Eighth Amendment’s ban on cruel and unusual punishment. Lawyers for the inmates, using evidence from faulty past executions and with the support of experts in pharmacology and anesthetics, said that midazolam was unreliable, even if properly administered. The lower courts in Oklahoma disagreed.
Ultimately, the Supreme Court 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,” said Oklahoma Attorney General Scott Pruitt. “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 executions last year in Oklahoma, Arizona and Ohio, in which prisoners struggled, groaned, or writhed in apparent excruciating pain during the administration of the sedative drug meant to stop their hearts. In 12 other executions, the drug cocktail did not cause such obvious mishaps.
The problems with lethal injections are the result of states’ inability to find pharmacies that are 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, and the European Union already imposed an export ban in 2011. As a result, many states have turned to state-regulated compounding pharmacies in a top-secret process.
Last month, both the American Pharmacists Association and the International Academy of Compounding Pharmacists discouraged their members from participating in the process. The US group called it “fundamentally contrary to the role of pharmacists as providers of health care.”
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 moratoria on lethal injections because of problems ranging from botched execution incidents in Oklahoma and Ohio, to a “cloudy” drug concoction in Georgia.
The drug protocol in question is different from the 2008 case from Kentucky, Baze v. Rees, in which the Supreme Court held that the standard three-drug combination used then did not violate the Eighth Amendment. 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 usual punishment, which the Constitution prohibits.
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.” (with reports from the New York Times, USA Today)
(www.asianjournal.com)
(LA Midweek July 1 – 3, 2015 Sec A pg.1)