A divided U.S. Supreme Court upheld the use of a lethal injection drug used in three botched executions last year, as two justices said for the first time that the death penalty is probably unconstitutional.
The 5-4 ruling rejected arguments that midazolam puts inmates at risk of a painful death. The decision gives greater latitude to death-penalty states as they cope with a drug shortage that has forced them to alter their lethal injection protocols.
Dissenting Justices Stephen Breyer and Ruth Bader Ginsburg said that it is “highly likely” that the death penalty violates the constitutional ban on cruel and unusual punishments.
“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.”
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. It centered on midazolam, a sedative 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, coma-like unconsciousness needed to ensure they don’t feel the effects of the lethal drug administered later.
“The prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain,” Justice Samuel Alito wrote for the majority. Oklahoma administers midazolam before two other drugs are injected to kill the inmate. The state is one of four to have used midazolam, along with Florida, Ohio and Arizona.
The 5-4 ruling was foreshadowed by the unusual circumstances that led to high court review. In January, five justices let Oklahoma use midazolam to execute Charles Warner, one of the four inmates who originally filed the challenge. The execution took place over the dissent of the court’s four Democratic appointees.
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.