Supreme Court Justice Samuel Alito on Wednesday accused anti-capital punishment activists of mounting "a guerilla war on the death penalty" as the court heard arguments on whether lethal injection violates the Constitution's ban on cruel and unusual punishment.
Alito noted during arguments in Glossip v. Gross that the high court has thus far upheld the death penalty as constitutional. But he acknowledged, "It's controversial as a constitutional matter. It certainly is controversial as a policy matter."
Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?
The court is considering whether the drug midazolam, when used as the first of three drugs in lethal injection, can reliably render an inmate unconscious and free of pain as the second and third drugs paralyze him and stop his heart. Midazolam was first used in Oklahoma's botched execution of Clayton Lockett in 2014, and has been used in putting 14 inmates to death since.
Prior to 2008, the 32 states that allow the death penalty used a three-drug cocktail with sodium thiopental as the first to be administered. But in recent years, drug manufacturers have either stopped selling sodium thiopental to prisons or have quit making the drug altogether, forcing corrections officials to search for alternatives like midazolam.
Justice Antonin Scalia also expressed frustration with the case brought by death row inmates. Referring to Robin Konrad, the attorney representing the plaintiffs on behalf of the Federal Public Defender’s Office in Arizona, Scalia said, "And now you want to come before the court and say, 'Well, this third drug is not 100 percent sure.' The reason it isn't 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent-sure drugs. And you think we should not view that as relevant to the decision that that you're putting before us?"
Justices Elena Kagan and Sonya Sotomayor hammered Oklahoma's representative, who was defending lethal injection. Sotomayor suggested that Oklahoma solicitor general Patrick R. Wyrick had mischaracterized opinions from a state expert witness.
"So nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes the context, okay?" Sotomayor told Wyrick.
Kagan said she was troubled that lethal injection drugs can't ethically be studied on humans. She repeatedly returned to the effects of the second drug in today's lethal injection protocols, potassium chloride.
"It's like being burned alive," Kagan said.
"We've actually talked about being burned at the stake, and, and everybody agrees that that's cruel and unusual punishment," Kagan said. "So suppose that we said, 'We're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects. Maybe you won't feel it, maybe you will. We just can't tell.' And -- and you think that that would be okay."