WASHINGTON — The Supreme Court engaged in a bruising and at times fierce debate over the use of a lethal injection drug Wednesday, and the justices’ heated words seemed to reflect a deepening divide over the death penalty itself.
The justices were considering a challenge brought by death-row inmates in Oklahoma, who allege that the use of a sedative called midazolam has resulted in troubling executions that violate the constitution’s prohibition on cruel and unusual punishment. Problematic executions in Oklahoma and elsewhere have captured headlines since early last year.
On the court’s last day of oral arguments for the term, conservative and liberal justices were unusually antagonistic with the lawyers at the podium and with one another. The comments showed a deep distrust of both the lawyers trying to delay executions using lethal injection and of state officials who minimize the risk of unconstitutional pain their procedures might cause.
“I mean, let’s be honest about what’s going on here,” said conservative Justice Samuel Alito. “Executions could be carried out painlessly.”
The obstacle, he said, is that death-penalty opponents, who have been unable to persuade legislatures to do away with capital punishment or persuade the Supreme Court to find it unconstitutional, have pressured drug companies not to produce or sell the most effective drugs.
“Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty?” Alito asked.
On the other side of the ideological divide, Justice Sonia Sotomayor scolded Oklahoma Solicitor General Patrick Wyrick, saying that she would not believe anything he said “until I see … with my own eyes the context, OK?”
Justice Elena Kagan said Oklahoma could not prove that its use of midazolam would render inmates properly unconscious so they would not feel the effects of the potassium chloride, which actually causes death — “being burned alive from the inside” as she described it.
The comments and lengthy, opinionated questioning led Chief Justice John Roberts to extend time at the podium to Wyrick and his opponent, Phoenix lawyer Robin Konrad.
The justices were revisiting the issue of lethal injection for the first time since 2008, when they upheld a three-drug combination and said it did not violate the Constitution’s ban on cruel and unusual punishment. At the time, these drugs were used across the country. But a shortage of lethal injection drugs, arising largely from European objections to capital punishment that interrupted the supply of drugs from Europe, has caused states to struggle to find new drugs.
In Oklahoma, when state officials could no longer obtain the drug they used to rely on, they turned to the drug midazolam. This drug was used in three problematic executions last year.
The most high-profile of these was Oklahoma’s bungled attempt to execute convicted murderer Clayton Lockett. He kicked, grimaced and survived for 43 minutes after the execution began.
