In a serious setback for human rights activists here the U.S. Supreme Court on Monday ruled that the three-drug lethal injection protocol used to execute inmates across the country did not, in terms of being “cruel and unusual punishment,” violate the Constitution.
Writing the opinion of the 5-4 majority Justice Samuel Alito rejected the arguments presented by lawyers of inmates in Oklahoma that the first injection, a sedative called midazolam, would not prevent their clients from feeling searing pain from the second and third injections that caused paralysis and heart failure.
However, Justice Sonia Sotomayor, in a dissenting opinion joined by other liberal Justices, blasted the ruling, saying: “Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive… But 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…”
Further, two other liberal Justices, Stephen Breyer and Ruth Bader Ginsburg, said the Court should take a broader look at capital punishment, noting, “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.”
Despite a furore in recent years over several prolonged or botched lethal injections, a divided Supreme Court ruled that the inmates who challenged the use of the sedative “failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”
The Justices, whose ruling today clears the path for executions to continue in a number of states, also noted that the plaintiffs did not identify an alternative method of execution that significantly reduces that risk. The ruling comes in the backdrop of several apparently botched lethal injections, most notably the execution of Clayton Lockett in Oklahoma in April last year.
After Lockett was strapped down to a gurney officials fumbled as they struggled to find a vein into which they could pump the drugs, following which the procedure was botched so badly that Lockett died of an apparent heart attack hours later, prompting even U.S. President Barack Obama to describe his treatment as “inhumane.”
The crisis of lethal drug shortages has affected a large number of U.S. state prisons ever since the main sedative used traditionally, sodium thiopental, became unavailable due to its sole manufacturer, a company called Hospira, halting production in 2010.
Since then a clutch of states such as Oklahoma and Nebraska either compounded execution drugs purchased from unnamed pharmacies, leading to alarm over the untested nature of the drugs, or sought to import drugs from abroad, including from Europe and India.
While campaigns by anti-death-penalty groups such as the United Kingdom’s Reprieve subsequently led to pharmaceutical companies agreeing to restrict U.S. prisons’ access to their therapeutic drugs for execution purposes, media attention, led to the Indian suppliers such as Kayem Pharma and Naari pulling out of the supply chain.