Supreme Court hears arguments for, against execution drug

30 Apr 2015 | Author: | No comments yet »

Atkins: Supreme intervention?.

WASHINGTON — Lawyers for three condemned Oklahoma prisoners who claimed that the three-drug combination that could be used to execute them risked causing unconstitutional pain and suffering ran into skepticism from conservative members of the Supreme Court on Wednesday. WASHINGTON — Supreme Court justices engaged in an impassioned debate Wednesday about capital punishment, trading unusually combative words in a case involving a drug used in several botched executions.

Supreme Court Justice Samuel Alito on Wednesday accused anti-capital punishment activists of mounting “a guerilla war on the death penalty” as the court heard arguments on whether lethal injection violates the Constitution’s ban on cruel and unusual punishment. The prisoners argued that the sedative midazolam, which was involved in three prolonged and apparently painful executions last year, could not reliably produce a state of deep unconsciousness before other, severely painful drugs were injected. Supreme Court to block any further lethal injections that use a sedative that they suspect will fail to induce deep sleep. “Let’s be honest about what’s going on here,” Justice Samuel A.

Meanwhile, DOJ officials are examining their own drug protocols — a move that could determine how Boston Marathon bomber Dzhokhar Tsarnaev is put to death, if the jury votes for capital punishment. The nine-member court’s five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute.

On the court’s last day of oral arguments for the term, conservative and liberal justices were unusually antagonistic with the lawyers at the lectern and with each other. Alito Jr. said. “Executions could be carried out painlessly,” he said, noting that in states where assisted suicide is legal, people who are terminally ill may obtain drugs that allow them to die without pain. But several of the conservative justices questioned whether the evidence warranted a reversal and, more broadly, expressed exasperation with shortages of more proven drugs that they said had been caused by opponents of capital punishment. Much of the hearing was given over to technical wrangling on scientific studies, with each side accusing the other of misrepresenting the medical literature on the effects of midazolam.

And you think that that would be OK?” The comments and lengthy, opinionated questioning led Chief Justice John Roberts to extend time to Wyrick and his opponent, Phoenix lawyer Robin Konrad. Patrick Wyrick had deceived the court about the effectiveness of the drug. “So nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes,” Sotomayor said. The arguments came a year to the day after an execution in Oklahoma left an inmate writhing and grimacing on a gurney, drawing international attention to issues facing the lethal injection process in the United States. The court is considering whether the drug midazolam, when used as the first of three drugs in lethal injection, can reliably render an inmate unconscious and free of pain as the second and third drugs paralyze him and stop his heart.

Lawyers for the Oklahoma prisoners, with the support of many experts in pharmacology and anesthetics, say that midazolam, even if properly administered, cannot reliably cause deep unconsciousness. Justice Antonin Scalia said drugs that have not been challenged as ineffective or likely to cause pain have been “rendered unavailable by the abolitionist movement.” Then, the court refused to block Oklahoma inmate Charles Warner’s execution over the objection of the four liberal justices. But an ongoing 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 and seek other methods. Officials in Oklahoma and 14 other states that joined in supporting briefs argue that when properly administered, midazolam does put prisoners into a deep coma. In a strongly worded dissent for the four, Sotomayor said, “The questions before us are especially important now, given states’ increasing reliance on new and scientifically untested methods of execution.” Eight days later, the justices agreed to hear the case of the three other Oklahoma prisoners.

They accuse the prisoners and their lawyers of seeking to prevent all executions and argue that if prisoners object to one drug combination, they should have to specify practical alternatives. But in recent years, drug manufacturers have either stopped selling sodium thiopental to prisons or have quit making the drug altogether, forcing corrections officials to search for alternatives like midazolam.

Sotomayor, Breyer, Kagan and Justice Ruth Bader Ginsburg have voted to stop some but not all of those nine executions, which have been carried out in Texas, Missouri and Georgia. Referring to Robin Konrad, the attorney representing the plaintiffs on behalf of the Federal Public Defender’s Office in Arizona, Scalia said, “And now you want to come before the court and say, ‘Well, this third drug is not 100 percent sure.’ The reason it isn’t 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent-sure drugs. Sodium thiopental accomplishes that sedation, but questions have been raised about whether the substitute drug — midazolam — would do so or would leave the condemned prisoner paralyzed but suffering.

Justice Elena Kagan said that if midazolam does not work, condemned inmates would essentially be “burned alive” by one of the other drugs used in the process, potassium chloride. He eventually died after officials had already halted the process, and a state investigation blamed the bungled procedure on the manner in which the execution team inserted the needle. Wyrick insisted midazolam renders an inmate “unconscious in no more than 60 to 90 seconds” and unable to feel pain, so long as the drug is properly administered in the right dosage. And the justices noted that if the first agent did not cause a deep enough level of unconsciousness, the prisoner’s acute pain could be hidden from view once the paralyzing agent was administered and the prisoner was unable to move or speak. The newly unsettled conditions have resulted in numerous lawsuits and requests for stays of execution, with lower courts offering contradictory rulings.

Meanwhile, the court challenge has prompted Oklahoma to approve nitrogen gas as an alternative death penalty method if lethal injections aren’t possible, either because of a court ruling or a drug shortage.

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