High court allows lethal injection drug

The Supreme Court, in a 5-4 decision, on Monday ruled that states may use the drug midazolam in executions.

Delivering the opinion of the court, Justice Samuel Alito said the prisoners who challenged Oklahoma’s lethal injection protocol did not identify a known and available alternative method of execution that would cause substantially less pain.

The prisoners argued that Oklahoma’s use of midazolam violates the Eighth Amendment’s ban on cruel and unusual punishment because it is not enough of a sedative to keep a prisoner from feeling the effects of the second two drugs, which are injected to cause death.

{mosads}Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy sided with Alito.

All four liberals on the court dissented, and Justice Stephen Breyer joined Justice Ruth Bader Ginsburg in questioning whether the death penalty itself was constitutional.

After Sotomayor and Breyer read their dissenting opinions, Scalia read his opinion dissenting to their dissents.

On Friday, he said, five justices took the decision on same-sex marriage away from the people and now, two justices want to do the same with the death penalty.

Scalia presumably misspoke when he said unlike “opposite-sex marriage, the death penalty is approved by the Constitution,” meaning instead to say same same-sex marriage.

While Breyer and Ginsburg do not appear to have the votes to force the court to take up the constitutionality of the death penalty, Breyer’s opinion is significant.

“In this world, or at least in this nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguable seeks reliability and fairness in the death penalty’s application,” he said. “We cannot have both.”

The case, known as Glossip v. Gross, stems from a botched execution in 2014, in which 38-year-old inmate Clayton Lockett writhed and cried out in pain before dying of a heart attack.

Following Lockett’s death, 21 inmates on death row filed a lawsuit challenging the states’ procedure. Four of those inmates — Charles Warner, Richard Glossip, John Grant and Benjamin Cole — appealed the 10th Circuit Court of Appeals decision that denied their request for a preliminary injunction.

Critics of midzaolam have argued it can make prisoners feel as if they are being burned alive. It was used in executions in Oklahoma, Arizona and Ohio in which prisoners writhed in pain, though it has also been used without incident.

Until 2010, Oklahoma used a series of three drugs ­— sodium thiopental, pancuronium bromide and potassium chloride, which is a fast-acting sedative used to keep the prisoner from feeling the effects of the second two drugs, but the state became unable to obtain the first drug.

In 2014, according to court documents, the state swapped the alternative sedative drug it had been using with Midazolam and first used the new drug in Lockett’s execution.

— Updated at 11:34 a.m.