The U.S. Supreme Court on Monday ruled that a drug used by Oklahoma as part of its lethal injection procedure does not violate the U.S. Constitution's ban on cruel and unusual punishment, dealing a setback to opponents of the death penalty.
The court, in a 5-4 decision with its conservative justices in the majority, handed a loss to three inmates who objected to the use of a sedative called midazolam, saying it cannot achieve the level of unconsciousness required for surgery, making it unsuitable for executions.
Justice Samuel Alito wrote on behalf of the court that the inmates had, among other things, failed to show that there was an alternative method of execution available that would be less painful.
In a dissenting opinion, liberal Justice Stephen Breyer said the court should consider whether the death penalty itself is constitutional. He was joined by one of his colleagues, Justice Ruth Bader Ginsburg.
The three-drug process used by Oklahoma prison officials has been under scrutiny since the April 2014 botched execution of convicted murderer Clayton Lockett. He could be seen twisting on the gurney after death chamber staff failed to place the intravenous line properly.
Inmates Richard Glossip, John Grant and Benjamin Cole challenged the procedure. Glossip arranged for his employer to be beaten to death. Grant stabbed a correctional worker to death. Cole killed his 9-month-old daughter.
The main question before the nine justices was whether the use of midazolam violates the Constitution's Eighth Amendment prohibition on cruel and unusual punishment.
"I believe it highly likely that the death penalty violates the Eighth Amendment," Breyer wrote.
Justice Antonin Scalia responded to Breyer in a separate concurring opinion. Scalia said Breyer's arguments were full of "internal contradictions" and were "gobbledy-gook."
The case did not address the constitutionality of the death penalty in general, but it brought fresh attention to the ongoing debate over whether the death penalty should continue in the United States at a time when most developed countries have abandoned it. During the oral argument in April, conservative Justice Samuel Alito said the challenge to the drug was part of a “guerrilla war” against the death penalty.
Lawyers for the inmates say midazolam is not approved for use in painful surgeries and should not be used in the death chamber because it cannot maintain a coma-like unconsciousness, potentially leaving inmates in intense pain from lethal injection drugs that halt breathing and stop the heart.
The drug has been used in executions in Oklahoma, Florida, Ohio and Arizona.
Oklahoma maintains the drug is effective. Oklahoma's lawyers said in court papers the case was a "full-throated attack" on the state's ability to implement death sentences.
Oklahoma's governor, Mary Fallin, in April signed a law allowing the state to use nitrogen gas as an alternative execution method if the Supreme Court ruled against the state or drugs became unavailable.
The Supreme Court in 1976 in a case called Gregg v. Georgia reinstated the death penalty in America, finding that its use did not constitute cruel and unusual punishment. Oklahoma in 1977 then became the first state to adopt lethal injection as a means of execution, according to the Death Penalty Information Center.
Thirty-one of the 50 U.S. states have the death penalty. In recent years, it has been abolished in Nebraska (in 2015), Maryland (2013), Connecticut (2012), Illinois (2011),
New Mexico (2009), New Jersey (2007) and New York (2007), according to the Death Penalty Information Center.
This marked the second death penalty ruling by the court this month. In a 5-4 decision on June 18, the justices gave a convicted cop killer on Louisiana's death row a chance to avert execution, ruling that the man was eligible for a hearing on whether he is intellectually disabled.
Nebraska last month became the first Republican-dominated state in more than 40 years to abolish capital punishment as legislators overrode the governor's veto of a bill repealing the death penalty.
Public support for capital punishment has fallen to its lowest point in four decades although a majority of Americans still support it, according to Pew Research Center survey released in April. It found 56 percent in favor of the death penalty for people convicted of murder, with 38 percent opposed.
Pew said that in a 1996 survey, 78 percent favored the death penalty while just 18 percent were opposed.
The case is Glossip v. Gross, U.S. Supreme Court, No. 14-7955
(Reporting by Lawrence Hurley; Editing by Will Dunham)