Use of drug blamed in botched executions upheld

Dissenting US justices suggest for the first time that death penalty is unconstitutional

Adeeply divided US Supreme Court upheld the use of a controversial drug in lethal-injection executions yesterday, even as two dissenting justices said for the first time they think it’s “highly likely” the death penalty itself is unconstitutional.

Trading sharp words, the justices voted 5-4 in a case from Oklahoma that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.

Sharp exchanges

The drug was used in executions in Arizona, Ohio and Oklahoma in 2014 that took longer than usual and raised concerns it did not perform its intended task of inducing a coma-like sleep. Justice Samuel Alito said for a conservative majority that arguments the drug could not be used effectively in executions are speculative, dismissing problems in executions in Arizona and Oklahoma as “having little probative value for present purposes.”

In dissent, Justice Sonia Sotomayor said, “Under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.”

Alito retorted: “the dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.”

In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg supported Breyer’s opinion.