By Zoe Tillman and Marcia Coyle, From The National Law Journal

Justices rule, 5-4, to uphold Oklahoma’s three-drug protocol.

Oklahoma can move forward with its controversial lethal-injection drug, the U.S. Supreme Court ruled on Monday.

Justice Samuel Alito Jr., writing for the 5-4 majority, said the prisoners who challenged the drug failed to identify an alternative method of execution that involved a lower risk of pain. The majority also upheld a district judge’s finding that the prisoners failed to show the state’s use of the drug, midazolam, involved “a substantial risk of severe pain.”

Alito, joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, rejected arguments by the dissenting justices that the ruling effectively legalized torture.

“Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be ‘drawn and quartered, slowly tortured to death, or actually burned at the stake,’ ” Alito wrote. “That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.”

Justices Sonia Sotomayor and Stephen Breyer wrote dissenting opinions. Sotomayor, joined by Justices Ruth Bader Ginsburg, Elena Kagan and Breyer, wrote that the majority’s requirement that prisoners identify an alternative means of execution would lead “to patently absurd consequences.” Sotomayor wrote:

Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equivalent of being burned alive. But 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: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the state could execute them using whatever means it designated.

Breyer wrote a separate dissent, joined by Ginsburg, that said he believed it was “highly likely” the death penalty was unconstitutional. At the very least, he said, the court should “call for briefing on the basic question.”

Glossip v. Gross was a challenge by three death row inmates in Oklahoma against the use of midazolam, a drug that they claim can result in extreme pain during executions.

A fourth Oklahoma inmate who was part of the class was executed a week before the court granted review in the case in January. The vote of four justices is needed to grant a case, but five are needed to stay an execution.

The high court last examined lethal injections in the 2008 case Baze v. Rees, upholding a certain combination of lethal drugs. But since then, in part because of the reluctance of drug companies to produce the drugs, different combinations are being used.

Critics say midazolam cannot be relied on as an anesthetic, causing the possibility of severe pain while the other chemicals take effect. Midazolam was used in the flawed executions of Clayton Lockett in Oklahoma and Joseph Wood in Arizona last year. Both remained conscious for extended periods of time before death.

The April 29 arguments in the case exposed angry divisions on the court, with conservative justices blaming death penalty opponents for causing the midazolam problem.

Abolitionists waged “guerilla war” against the death penalty, Alito said, thereby making it impossible for states to obtain more effective drugs for lethal injections.

Sotomayor, for her part, said she was “substantially disturbed” by the evidence Oklahoma cited in defense of the use of midazolam.

Oklahoma recently enacted legislation that would require the use of nitrogen gas in its executions if the high court rules against use of midazolam.

IMAGE: Anti-death penalty protest at the Supreme Court on Monday, June 29.

Photo: Diego M. Radzinschi/ The NLJ

For more on this story go to: http://www.nationallawjournal.com/id=1202730617752/Challenge-to-LethalInjection-Procedure-Fails-in-Supreme-Court#ixzz3eYdhRHT7