It's Sotomayor V. Roberts In Supreme Court Death Penalty Drama
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Yesterday, it was same-sex marriage being argued before the U.S. Supreme Court. Today, it was lethal injection, namely whether the drug combination currently used to execute convicted murderers in some states is unconstitutionally cruel. The issue comes to the court after three botched executions over the last year. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 2008, the Supreme Court upheld the use of a three-drug cocktail used by most states in imposing the death penalty. The first drug, sodium thiopental, is an anesthetic used to put the prisoner in a deep coma-like state. The second and third drugs paralyze and then kill the prisoner.
The problem for death penalty states is that the key drug used to anesthetize the inmate is no longer available in most places. Drug manufacturers and pharmacists have refused on ethical grounds to provide it for executions. The result is that states have tried other drugs, most prominently a drug called midazolam.
On the steps of the Supreme Court today, Oklahoma Attorney General Scott Pruitt defended the use of midazolam.
SCOTT PRUITT: We believe that midazolam, though not preferred, though not the first choice, we believe that it passes Eighth Amendment review without question.
TOTENBERG: But lawyer Robin Konrad, representing three Oklahoma death row inmates, contended that the drug violates the Eighth Amendment ban on cruel and unusual punishment.
ROBIN KONRAD: This drug formula is unconstitutional because the first drug will not prevent a prisoner from feeling the severe pain and suffering of the second and third drugs.
TOTENBERG: Inside the courtroom, there were two dramas - one, the dispute over the death penalty and how far states must go to make it humane. And a second clash between Justice Sotomayor and lawyers for the State of Oklahoma - a clash so pronounced that Chief Justice John Roberts, without much subtlety, chastised Sotomayor for talking too much at the expense of the lawyer's time.
Lawyer Konrad opened the arguments telling the justices that midazolam is not a barbiturate, that it's not a drug that renders people insensate and keeps them in a deep unconscious state. And she maintained it has a ceiling effect, meaning that no matter how much of it you give, the drug's effect levels off.
"Let's be honest about what's going on here," Justice Alito interjected. "This court has held that the death penalty is constitutional. In view of that," he asked, "is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain the drugs needed to carry out capital punishment with little or no pain?" Justice Scalia echoed that sentiment, contending that the better drugs would be available but for the pressure tactics of abolitionist. Justice Kennedy, whose vote could be critical in the case, asked just one question - is it relevant that the preferable drugs are not available because of opposition to the death penalty?
Lawyer Konrad said that should have no relevance.
Justice Sotomayor interrupted. "There are other painless ways of executing someone. It doesn't have to be a drug protocol. I know you'll get up here and argue that those other ways are unconstitutional, too," said Sotomayor, "but the little research I've done into other methods suggest they're not used because it offends people to look at them."
Chief Justice Roberts, however, said his understanding is that states have moved to lethal injection as a more humane method of execution than hanging, firing squad, the electric chair and the gas chamber. "You're not suggesting those methods are preferable, are you?"
Konrad replied that death by gas chamber would appear to be painless, but that it's been discarded because of its associations with the Holocaust. After Konrad sat down, Oklahoma Solicitor General Patrick Wyrick rose to argue that midazolam, administered at high doses, protects the prisoner from feeling pain.
Justices Kagan, Breyer and Ginsburg all disputed the evidence of that presented in the courts below. They pointed to testimony from the state's own expert witness, noting that the expert witness was not only wrong, but that the state had conceded as much. Breyer said there was zero actual data cited by the witness for his conclusions. Kagan called the reasoning of the district court judge gobbledygook. But it was Justice Sotomayor who openly dismissed Oklahoma's evidence as untrustworthy.
Addressing the state's lawyer, she said, "I'm substantially disturbed that in your brief you made factual statements not supported by sources and in fact directly contradicted." She then proceeded to lecture him, chapter and verse, with examples, so much that when Wyrick's time had expired, Chief Justice Roberts said to the lawyer "to an extent that's unusual even in this court, you have been listening rather than talking. And so I'm happy to give you an extra five minutes, if you'd like." And he liked. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.