ROBERT SIEGEL, HOST:
We begin this hour with a breakdown of some of today's rulings from the U.S. Supreme Court on the final day of its term - first, the decision to uphold the use of a controversial drug as part of a three-drug execution cocktail. The vote was 5 to 4 with unusually passionate opinions in the majority and dissent. NPR legal affairs correspondent Nina Totenberg starts us off.
NINA TOTENBERG, BYLINE: For years, executions have been carried out by a three-drug cocktail that begins with an anesthetic to put the prisoner into a deep coma, followed by two other very painful drugs to kill him. But in recent years, drug manufacturers and pharmacists have refused to provide the anesthesia for executions, and some states have substituted a sedative named midazolam instead. Midazolam, however, is not approved by the FDA as effective for achieving a deep coma-like state, and death penalty opponents have claimed that prisoners are thus subject to feeling excruciating pain as evidenced in some botched executions.
The states, led by Oklahoma, countered that properly used in very high doses, midazolam is an appropriate drug, and today, they prevailed in the U.S. Supreme Court. Writing for the court majority, Justice Samuel Alito said that death penalty opponents, among other things, had failed to show that there is an alternative method of execution that is less painful. He rejected the argument made by death penalty opponents and supported by many medical experts that midazolam cannot achieve a sufficient degree of unconsciousness by using massive doses of the drug. And he accused the dissenters of outlandish rhetoric. Joining him in the majority were justices Scalia, Kennedy, Thomas and Chief Justice Roberts.
Kent Scheidegger of the Criminal Justice Legal Foundation praised the decision, noting that it would make it more difficult for death row inmates to challenge methods of execution. He conceded that midazolam is not an optimum drug but echoed Justice Alito's opinion in saying that death penalty opponents are to blame for lobbying against genuine anesthetic drugs like pentobarbital at executions.
KENT SCHEIDEGGER: To the extent that there is a problem with midazolam, it's the people who have blocked access to pentobarbital who are responsible for it. It's on their head.
TOTENBERG: But Bryan Stevenson, director of the Equal Justice Initiative, dismissed that argument.
BRYAN STEVENSON: It's just not a brand or a marketing tool that a lot of companies want. And so to assign that to this kind of minority cabal of anti-death penalty advocates is a little more, I think, far-reaching than what you would typically see from the court.
TOTENBERG: There were two dissenting opinions today and one rebuttal to the dissents all read from the bench this morning. The principle dissent, written by Justice Sonia Sotomayor, labeled as patently absurd, the court's new rule requiring proof of a more humane and available drug. Under the majority's reasoning, said Sotomayor, it would not matter if the prisoner was being drawn and quartered or burned at the stake as long as there was no more humane method of execution available. The Constitution's ban on cruel and unusual punishment does not permit that, she said.
Joining her dissent were justices Ginsburg, Kagan, and Breyer. Breyer wrote separately for himself and Justice Ginsburg to say that the time had come to reconsider whether the death penalty is constitutional. For 40 years, he noted, the courts have tried to make capital punishment more consistent, reliable and accurate, but our experiences show that these procedures and protections do not work. We now have persuasive evidence, he said, that innocent people have been executed while more than a hundred individuals sentenced to death have later been completely exonerated. Death sentences, he said, are fewer and fewer and take place decades after the crime is committed. We cannot have it both ways. Either the death penalty will be swift but unreliable with many innocents wrongly executed, or there will be long delays, as there are now, that undermine the notion of deterrence and punishment.
In perhaps an unprecedented oral rebuttal from the bench, Justice Antonin Scalia called Breyer's opinion gobbledygook. Time and again, the people have voted to exact the death penalty as punishment for the most serious crimes, he said. Time and again, the court has upheld that decision. And time and again, a vocal minority of this court has sought to replace the judgments of the people with their own standards of decency. The attitude of the majority opinion, concurrences and the dissents, is evidence of the burden the death penalty cases put on the court, says Bryan Stevenson who represents many death row inmates.
STEVENSON: I think the court is just feeling the stress of 30 years of intense warfare over this essentially fundamental question of whether we should be killing people or not.
TOTENBERG: That fundamental disagreement and the burden it imposes on each justice will return when the court reconvenes in the fall. Nina Totenberg, NPR News, Washington.
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