Supreme Court backs states’ use of execution drug

Sedative had controversial role in several cases

The sedative midazolam has been used on inmates before they were injected with other drugs that cause severe pain.
The sedative midazolam has been used on inmates before they were injected with other drugs that cause severe pain.Stuart Isett/The New York Times 2012 files

WASHINGTON — The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug that they said could cause excruciating pain.

In the process, two dissenting members of the court — Justices Stephen G. Breyer and Ruth Bader Ginsburg — came very close to announcing they were ready to rule the death penalty unconstitutional.

This gave rise to a slashing debate with Justices Antonin Scalia and Clarence Thomas about the reliability and effectiveness of the punishment, a dispute that overshadowed the core issue in the case.

The 5-to-4 decision on the execution drug broke along familiar lines, with Justice Anthony M. Kennedy joining the court’s more conservative members to allow its use.


Justice Samuel A. Alito Jr., writing for the majority, said the inmates had failed to identify an available and preferable method of execution and also failed to make the case that the challenged drug entailed a substantial risk of severe pain.

The drug, the sedative midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other drugs that cause severe pain.

In dissent, Justice Sonia Sotomayor, who joined the other three members of the court’s liberal wing, said, “The court’s available-alternative requirement leads to patently absurd consequences.”

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” Sotomayor wrote. “But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.”

Breyer, Ginsburg, and Justice Elena Kagan joined Sotomayor’s dissent.

In a second, more sweeping dissent, Breyer, joined by Ginsburg, said it was time to consider a larger issue.


“Rather than try to patch up the death penalty’s legal wounds one at a time,” Breyer wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

In a 46-page dissent that included charts and maps, he said “it is highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said there was evidence that innocent people have been executed, that death row exonerations were frequent, that death sentences were imposed arbitrarily, and that the capital justice system was warped by racial discrimination and politics.

Breyer added that there was scant reason to think that the death penalty deterred crime and that long delays between death sentences and executions might themselves violate the Eighth Amendment.

Scalia responded to what he called “Justice Breyer’s plea for judicial abolition of the death penalty” by calling it “gobbledy gook.” The punishment is contemplated by the Constitution, Scalia said, and disingenuously opposed on grounds created by its opponents.

Criticizing the death penalty on the grounds that it is not implemented fast enough, for instance, Scalia said, “calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan.’’

Scalia said the justices need to consider those whose lives are affected by violence.

“The suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the people decide how much incremental deterrence is appropriate,” he said.


Several states started to use midazolam in executions after manufacturers refused to sell them the barbiturates that were traditionally used.