When the Supreme Court justices in April debated the constitutionality of lethal-injection drug midazolam, Elena Kagan likened the execution protocol to being burned alive. She joined three dissenters in today's 5-4 ruling that the first drug in a three-drug combination used last year in executions in Arizona, Ohio, and Oklahoma is legal. The Eighth Amendment prohibits cruel and unusual punishment, and the majority opinion noted that the Oklahoma death-row inmates who filed the suit "failed to establish a likelihood of showing that the use of midazolam created a demonstrated risk of severe pain." The drug's use in those 2014 executions raised concerns that it did not put inmates into a coma-like sleep as intended, reports the AP.
Dennis McGuire gasped and choked for about 10 minutes before being pronounced dead in January 2014; he was the first administered midazolam. Charles Warner said, "My body is on fire," after being given the same drug in Oklahoma a year later, though he showed no obvious signs of distress. Samuel Alito said for a conservative majority that arguments the drug could not be used effectively as a sedative in executions are speculative. In dissent, Sonia Sotomayor said, "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." In a separate dissent, Stephen Breyer (joined by Ruth Bader Ginsburg) said the time has come for the court to debate whether the death penalty itself is constitutional.