POLITICS

Supreme Court Upholds Oklahoma's Use Of Lethal Injection Drug

06/29/2015 10:05 am ET | Updated Jun 29, 2015

The U.S. Supreme Court on Monday ruled in a 5-4 vote that Oklahoma may continue to use a controversial lethal injection drug during executions.

The Oklahoma death row prisoners who brought the matter to court "failed to identify a known and available alternative method of execution that entails a lesser risk of pain," Justice Samuel Alito wrote in the opinion in which Justices John Roberts, Antonin Scalia, Clarence Thomas and Anthony Kennedy concurred.

The prisoners also failed to show that a large dose of the controversial drug, midazolam, "entails a substantial risk of severe pain," Alito wrote.

In a scathing dissent from the court’s liberals, Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, suggested the high court’s ruling would allow prisoners to be "drawn and quartered, slowly tortured to death, or actually burned at the stake" by states that wished to put them to death.

In a separate dissent, Breyer and Ginsburg questioned outright whether the death penalty itself is constitutional.

Breyer wrote that he believed it was "highly likely that the death penalty violates the Eighth Amendment" and called for the court to address that "basic question." Breyer suggested that since the use of the death penalty has declined over the years, it’s now an "unusual" punishment that been "imposed arbitrarily" in the past 40 years.

The lawsuit that prompted the decision was brought on by lead plaintiff Richard Glossip, an Oklahoma inmate who has been on death row for 17 years. Lawyers for the plaintiffs argued that midazolam, the first drug used in Oklahoma's three-part lethal injection protocol, can't reliably render an inmate unconscious and free of pain while the second and third drugs paralyze him and stop his heart, thus making the execution cruel and unusual punishment. Midazolam was first used in Oklahoma's botched execution of Clayton Lockett in 2014, and since then has been used in putting to death more than a dozen inmates.

Citing previous rulings, Alito noted that while methods of execution have changed over the years, "[t]his Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment."

Glossip told The Huffington Post last week that a ruling against him would be disappointing.

"I’d feel like I’d have to apologize to [the other plaintiffs]," he said. "Like I somehow let them down, like I didn’t do enough for our cause."

The justices have been sharply divided on the issue since the fiery opening oral arguments were heard in April. Alito accused anti-capital punishment activists of mounting "a guerrilla war on the death penalty." Kagan, meanwhile, said the pain caused by lethal injection when not mitigated by an effective anesthetic was like "being burned alive."

The remaining 31 states that have the death penalty all have lethal injection as the primary execution method. Until 2009, most states had a three-drug protocol similar to Oklahoma's that used an anesthetic, a paralytic and then potassium chloride to stop the heart and cause death.

The primary U.S. drug supplier of sodium thiopental, the first-step drug used by most states before 2009, stopped manufacturing it in 2011 after several European drug-makers either raised objections to their drug being used in executions or ceased its production altogether.

Since then, states like Florida have adopted a single-drug protocol, while states like Oklahoma continue to have a three-drug protocol.

Faced with the possibility of midazolam's use being ruled unconstitutional, earlier this year Oklahoma lawmakers hastily approved an entirely new method of gas chamber execution that uses nitrogen instead of cyanide gas. Critics said nitrogen gas is not a state-sanctioned execution method anywhere else in the world.

Read the full decision here:

Glossip v. Gross

Also on HuffPost:

  • Lethal Injection
    AP
    Until 2010, most states used a three-drug combination: an anesthetic (pentobarbital or sodium thiopental), a paralytic agent (pancuronium bromide) to paralyze the muscle system, and a drug to stop the heart (potassium chloride). Recently, European pharmaceutical companies have refused to sell drugs to the U.S. for use in lethal injections, requiring states to find new, untested alternatives.
  • Gas Chamber
    AP
    Gas chambers, like this one pictured at the former Missouri State Penitentiary in Jefferson City, Mo., were first used in the U.S. in 1924. In the procedure, an inmate is sealed inside an airtight chamber which is then filled with toxic hydrogen cyanide gas. Oxygen starvation ultimately leads to death, but the inmate does not immediately lose consciousness.
  • Electric Chair
    AP
    The first electric chair was used in 1890. Electrodes attached to an inmate's body deliver a current of electricity. Sometimes more than one jolt is required.
  • Hanging
    AP
    Hanging was used as the primary method of execution in the U.S. until the electric chair's invention in 1890. Death is typically caused by dislocation of the vertebrae or asphyxiation, but in cases when the rope is too long, the inmate can sometimes be decapitated. If too short, the inmate can take up to 45 minutes to die.
  • Firing Squad
    AP
    This Old West-style execution method dates back to the invention of firearms. In a typical scenario in the U.S., the inmate is strapped to a chair. Five anonymous marksmen stand 20 feet away, aim rifles at the convict's heart, and shoot. One rifle is loaded with blanks.
  • Beheading
    Wikimedia Commons
    Decapitation has been used in capital punishment for thousands of years. Above is the chopping block used for beheadings at the Tower of London.
  • Guillotine
    Kauko via Wikimedia Commons
    Invented in France in the late 18th century during the French Revolution, the guillotine was designed to be an egalitarian means of execution. It severed the head more quickly and efficiently than beheading by sword.
  • Hanging, Drawing and Quartering
    Wikimedia Commons
    A punishment for men convicted of high treason, "hanging, drawing and quartering" was used in England between the 13th and 19th centuries. Men were dragged behind a horse, then hanged, disemboweled, beheaded, and chopped or torn into four pieces.
  • Slow Slicing
    Carter Cutlery/Wikimedia Commons
    Also called "death by a thousand cuts," this execution method was used in China from roughly A.D. 900 until it was banned in 1905. The slicing took place for up to three days. It was used as punishment for treason and killing one's parents.
  • Boiling Alive
    Wikimedia Commons
    Death by boiling goes back to the first century A.D., and was legal in the 16th century in England as punishment for treason. This method of execution involved placing the person into a large cauldron containing a boiling liquid such as oil or water.
  • Crucifixion
    Wikimedia Commons
    Crucifixion goes back to around the 6th century B.C.used today in Sudan. For this method of execution, a person is tied or nailed to a cross and left to hang. Death is slow and painful, ranging from hours to days.
  • Burning Alive
    Pat Canova via Getty Images
    Records show societies burning criminals alive as far back as the 18 century B.C. under Hammurabi's Code of Laws in Babylonia. It has been used as punishment for sexual deviancy, witchcraft, treason and heresy.
  • Live Burial
    Antoine Wiertz/Wikimedia Commons
    Execution by burial goes back to 260 B.C. in ancient China, when 400,000 were reportedly buried alive by the Qin dynasty. Depending on the size of the coffin (assuming there is one), it can take anywhere from 10 minutes to several hours for a person to run out of oxygen.
  • Stoning
    Wikimedia Commons
    This ancient method of execution continues to be used as punishment for adultery today.
  • Crushing By Elephant
    Wikimedia Commons
    This method was commonly used for many centuries in South and Southeast Asia, in which an elephant would crush and dismember convicts as a punishment for treason.
  • Flaying
    Michelangelo/Wikimedia Commons
    Records show flaying, the removal of skin from the body, was used as far back as the 9th century B.C.
  • Impalement
    Wikimedia Commons
    Records show this execution practice used as far back as the 18th century B.C., where a person is penetrated through the center of their body with a stake or pole.
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