A deeply emotional and divided U.S. Supreme Court finally upheld the use of a controversial single lethal injection execution process, “even as two dissenting justices said for the first time they think it’s ‘highly likely’ the death penalty itself is unconstitutional,” according to Mark Sherman of The Associated Press.
To resolve the dispute over the lethal injection drug, midazolam, used in Arizona, Ohio and Oklahoma executions last year, the court in a 5-4 decision ruled its use as a single injection for executions did not violate the Eighth Amendment prohibition on cruel and unusual punishment, said Sherman.
Justice Sonia Sotomayor, speaking on behalf of Justices Ginsburg, Breyer and Kagan, told Justice Samuel Alito in a bitter and biting dissent, “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.”
Justice Alito quickly told her, “The dissent’s resort to this outlandish rhetoric reveals the weakness of the legal arguments.”
In his own separate argument before the Court, Justice Breyer said, “Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the constitution.” This question could open the door for future litigation because, Breyer said, “I believe it highly likely that the death penalty violates the Eighth Amendment.”
The court’s decision gives a green light to California to create a single drug method of lethal injection for inmates on America’s largest death row. “Under a legal settlement” reached earlier in June, Gov. Jerry Brown’s administration agreed to propose a new lethal injection method 120 days after the Supreme Court made its final decision, said Maura Dolan of the Los Angeles Times.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said this ruling would make it more difficult for challengers to block California’s new protocol, which is due in late October. According to Dolan, state law requires extensive public comments, and this could take a year.
Dolan also reported that Scheidegger and his supporters prefer pentobarbital, used by veterinarians to kill animals. But U.C. Berkeley law professor Elisabeth Semel, who is in charge of a law school death penalty clinic that represents inmates on Death Row, said the state will be unveiling a new execution method at a time when there is profound ambivalence about executions in California. “I don’t think anyone has the appetite” to execute approximately 750 people on Death Row, she said.
The 9th Circuit Court of Appeals will determine whether the decades-long delays in executions in California renders the state’s death penalty unconstitutional. In 2014, U.S. District Court Judge Cormac Carney said delays and the arbitrary nature of these executions in California are unconstitutional.
Opponents of the death penalty, led by Ana Zamora of the Northern California ACLU, believe there is enough support for another ballot initiative and even with the death penalty on the books, California is still likely to have trouble enforcing it, Dolan reports.
Howard Mintz, staff writer for Mercury News said there are at least 15 Death Row inmates who have exhausted appeals and are eligible for execution, including three from the Bay Area.
