The continued use of the controversial sedative midazolam to put prisoners to death, upheld on Monday by the U.S. Supreme Court, will mean more challenges and more botched executions, predicted an official with the American Civil Liberties Union.
The case against midazolam was brought by three other death-row inmates in Oklahoma after several prolonged executions sparked renewed controversy about lethal injections.
"Midazolam doesn't work," said Cassandra Stubbs, the director of the ACLU Capital Punishment Project, which works to repeal the death penalty. "They were not unconscious."
In the 5-4 decision, the court ruled that the drug, midazolam, could be used in executions without violating the Eighth Amendment’s prohibition on cruel and unusual suffering.
Writing for the majority, Justice Samuel Alito said prisoners objecting to the drug's use failed to identify an alternative method that had less risk of pain.
"I think the sweeping holding here that a defendant could be tortured and that would be okay unless they are able to come up with an alternative method, I think that is a mistake," Stubbs said. "I don’t think the Constitution stands for that."
The majority also said that a lower court had not made a mistake when it found that the prisoners "failed to establish that Oklahoma's use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain."
Oklahoma's attorney general, Scott Pruitt, said Oklahoma would now set execution dates for the three inmates, Richard Glossip, Benjamin Cole and John Grant.
"State officials act deliberately and thoughtfully in carrying out this responsibility," he said in a statement. "This marks the eighth time a court has reviewed and upheld as constitutional the lethal injection protocol used by Oklahoma."
Challengers argued because midazolam was not a barbituate, it failed to cause a coma-like state, leaving open the possibility that the other drugs injected afterward would cause an excruciating death. They had questioned Oklahoma's key expert witness who defended the use of the drug but seemed to rely on the website, www.drugs.com.
Sister Sister Helen Prejean tweeted: "The Supreme Court's decision in Glossip v. Gross allows for continued experimentation on death row inmates. The drug doesn't work."
In a dissent, Justice Sonia Sotomayor wrote, "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."
The hearing in the case took place a year after a botched execution in Oklahoma captured attention. The prisoner, Clayton D. Lockett, regained consciousness and as he writhed and moaned prison, officials tried to stop the execution. He died after 43 minutes. State officials later said the intravenous line was inserted improperly.
Two other executions, of Joseph Wood in Ohio and Dennis McGuire in Arizona, took longer than expected and the inmates were heard gasping.
"I think a lot of the questions about lethal injection will remain because I think states have an interest in not engaging in torture under their own state constitutions," Stubbs said. "And I fully expect that defendants will continue to challenge unconstitutional methods or methods that are torturous."
Stubbs said she hoped that states would stop using midazolam. If they do not, the country will see more botched executions, she said.
"There's no reason to have any confidence in midazolam working," she said. "And nothing the Supreme Court today says changes that."
The case was the first the Supreme Court has considered on lethal injections since 2008. At that time, it found that a three-drug combination in which the barbituate sodium thiopental was the first to be injected was constitutional.
States have had trouble obtaining some of the drugs because manufacturers have refused to sell them for use in executions.
Most states used a three-drug combination until 2009, but after shortages developed they turned to a variety of methods, according to the Death Penalty Information Center. Eight states, among them Texas, use a single dose of an anesthetic. Fourteen states have used pentobarbital and another five plan to use it; nine states have used or plan to use compounding pharmacies as an alternative to manufacturers.
A number of other states have looked at other ways to execute inmates — nitrogen gas asphyxiation in Oklahoma, the electric chair in Tennessee and a firing squad in Utah.
As for midazolam, Oklahoma, Florida, Ohio and Arizona have used it in three- or two-drug combinations, the Death Penalty Information Center says. Alabama, Arkansas, Louisiana and Virginia allow for midazolam, but have not used it.