In his majority ruling, Alito discussed at length the evidence presented about whether midazolam fails to act sufficiently as a sedative to prevent inmates who are being executed from suffering an undue amount of pain.
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Justice Breyer, joined by Justice Ginsburg, used the occasion to argue that the death penalty itself was unconstitutional, while Scalia and Thomas lined up against them. Joining her dissent were Justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer.
In dissent, Justice Sonia Sotomayor said, “Under the court’s new rule, it wouldn’t 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”.
“Today’s interpretation is not merely unnatural; it is unheard of”, he wrote. Breyer said studies show the death penalty isn’t a deterrent to violence. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door.
There were two dissenting opinions, and one extraordinary rebuttal to the dissents, all read from the bench on Monday.
Although the Court could have resolved this case with its fact-specific holding about midazolam, it is good for the fair administration of capital punishment that it didn’t. “Although previous Justices-including Justices Blackmun and Stevens-have objected to the death penalty, they did so late in their careers, at a point at which it was more a moral statement than a legal one”.
The Supreme Court’s involvement in the case began in January with an unusually public disagreement among the justices over executions.
“I believe it highly likely that the death penalty violates the Eighth Amendment”, Breyer said, drawing on the cases he has reviewed in more than 20 years on the Supreme Court bench. Capital punishment is now used in 31 states and by the federal government. “The US Supreme Court confirmed our belief that executions using these lethal injection drugs are not cruel and unusual punishment, and therefore are not prohibited under the Eighth Amendment of the US Constitution”.
Another plaintiff in the case, Charles F. Warner, was put to death, apparently without incident, before the Court agreed to take up the case. It may also set back the campaign to make execution drugs unavailable to the states.
Virginia added midazolam to its protocol previous year but hasn’t used it. The state’s last lethal injection execution was in August 2011. “His argument is full of internal contradictions and (it must be said) gobbledy-gook”, Scalia wrote, before concluding that Breyer “rejects the Enlightenment”.
While campaigns by anti-death-penalty groups such as the United Kingdom’s Reprieve subsequently led to pharmaceutical companies agreeing to restrict USA prisons’ access to their therapeutic drugs for execution purposes, media attention, including in The Hindu, led to the Indian suppliers such as Kayem Pharma and Naari pulling out of the supply chain.
In this 5-4 ruling, conservative Justice Anthony Kennedy joined the court’s four liberals in backing an independent commission approved by the state’s voters to draw the districts.
In 2008, the court upheld Kentucky’s use of a three-drug execution method that employed a barbiturate as the first drug, meant to render the inmate unconscious.
Alito’s opinion indirectly acknowledges a limitation of the Court: Execution protocols are being written by corrections officers and attorneys general, not by scientists or doctors.
Thirteen men are on Death Row in the Indiana State Prison in Michigan City, including Kevin C. Isom who killed his wife, Cassindra, 40, and her children Michael Moore, 16, and Ci’Andria Cole, 13, in 2007 in Gary.
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Arizona won’t say whether it has any doses of midazolam left.
