Supreme Court debates challenge to execution drug

WASHINGTON — Supreme Court justices engaged in an impassioned debate Wednesday about capital punishment, trading unusually combative words in a case involving a drug used in several botched executions.

The justices are considering the plea of death row inmates in Oklahoma to outlaw the sedative midazolam. The inmates say it is ineffective in preventing searing pain from other drugs used in lethal injections.

But Wednesday’s session, lasting just over an hour, featured broader complaints from conservative justices that death penalty opponents are waging what Justice Samuel Alito called a “guerrilla war” against executions by working to limit the supply of more effective drugs.

On the other side, among the court’s liberals, Justice Elena Kagan contended that the way states carry out most executions amounts to having prisoners “burned alive from the inside.”

The debate came on the court’s last argument day until fall, and a year to the day after a problematic execution in Oklahoma gave rise to a lawsuit from death row inmates over the use of midazolam.

The outcome of the case could turn on a rather narrow question involving the discretion of the federal trial judge who initially heard the lawsuit. He ruled against the inmates, and a unanimous three-judge panel of the federal appeals court in Denver affirmed that ruling.

But justices on both sides gave voice to larger concerns.

“There are other ways to kill people, regrettably, that are painless,” Justice Sonia Sotomayor said.

Justice Stephen Breyer said it’s not the inmates’ fault if the state can’t find drugs that work painlessly.

He said, “Perhaps there is that larger question, that … if there is no method of executing a person that does not cause unacceptable pain, that, in addition to other things, might show that the death penalty is not consistent with the Eighth Amendment,” which forbids cruel and unusual punishment.

But the conservative justices said the court already has upheld the use of capital punishment and there must be ways of carrying out executions.

“And yet you put us in a position with your argument that he can’t be executed,” Chief Justice John Roberts told Robin Konrad, who represents the inmates.

Justice Antonin Scalia said drugs that have not been challenged as ineffective or likely to cause pain have been “rendered unavailable by the abolitionist movement.”

The Supreme Court’s involvement in the case began in January with an unusually public disagreement among the justices over executions.

Then, the court refused to block Oklahoma inmate Charles Warner’s execution over the objection of the four liberal justices. In a strongly worded dissent for the four, Sotomayor said, “The questions before us are especially important now, given states’ increasing reliance on new and scientifically untested methods of execution.”

Eight days later, the justices agreed to hear the case of the three other Oklahoma prisoners. It takes just four votes among the nine justices to agree to hear a case, but five votes to place a hold on an execution.

Since the January decision to hear the three prisoners’ case, the justices have not prevented other executions from moving forward. Sotomayor, Breyer, Kagan and Justice Ruth Bader Ginsburg have voted to stop some but not all of those nine executions, which have been carried out in Texas, Missouri and Georgia.

Argument sessions often are rough-and-tumble affairs with justices cutting off lawyers with abandon. But on Wednesday the conservative justices complained about interruptions from liberal colleagues.

In pointed language, Sotomayor accused Oklahoma Solicitor General Patrick Wyrick of misrepresentations in his written argument. “Nothing you say or read to me I’m going to believe, frankly, until I see it with my own eyes,” Sotomayor said.

Her questioning of Wyrick was so aggressive that she drew a rebuke of sorts from Chief Justice John Roberts.

“To an extent that’s unusual even in this court, you have been listening rather than talking,” Roberts said in granting Wyrick five additional minutes to present his argument.

In 2008, the court upheld Kentucky’s use of a three-drug execution method that employed a barbiturate as the first drug, intended to render the inmate unconscious.

But because of problems obtaining drugs, no state uses the precise combination at issue in that earlier Supreme Court case.

Four states have used midazolam in executions: Arizona, Florida, Ohio and Oklahoma. Also, Alabama, Louisiana and Virginia allow for midazolam, but they have not used it in executions, said Megan McCracken, a death penalty expert at the University of California at Berkeley law school.

Last April’s execution of Clayton Lockett was the first time Oklahoma used midazolam. Lockett writhed on the gurney, moaned and clenched his teeth for several minutes before prison officials tried to halt the process. Lockett died after 43 minutes.

Executions in Arizona and Ohio that used midazolam also went on for longer than expected as the inmates gasped and made other noises before dying.

Meanwhile, the court challenge has prompted Oklahoma to approve nitrogen gas as an alternative death penalty method if lethal injections aren’t possible, either because of a court ruling or a drug shortage.

There are no reports of nitrogen gas ever being used to execute humans, and critics say that one concern is that the method is untested. Some states ban its use to put animals to sleep.