The gurney in the execution chamber at the Oklahoma State Penitentiary in McAlester.(Photo: Sue Ogrocki, AP)
WASHINGTON -- The Supreme Court appeared unlikely Wednesday to limit states' use of lethal injections in executions with restrictions that some conservative justices linked to a "guerrilla war against the death penalty" by "abolitionists."
The conservatives' defense of state executions came in a case that liberal justices said included evidence that condemned prisoners were being "burned alive" by a three-drug protocol in violation of the Constitution.
Throughout the unusually emotional debate, justices who clearly differ on the death penalty showed signs of tempers rising -- as when Chief Justice John Roberts gave Oklahoma's lawyer extra time to speak because liberal justices had dominated his turn at the lectern with their questions.
The case, coming on the court's last day for oral arguments this term, was brought by three death row inmates against Oklahoma's method of lethal injection, also used by several other states. There had been four inmates in the case, but the court refused to stop Charles Warner's lethal injection in January despite dissents from the four liberal justices.
That followed three executions involving the drug midazolam last year that did not go off well. In April, Oklahoma's Clayton Lockett struggled, groaned and writhed in pain for 43 minutes before dying, at least in part because of mistakes made by prison officials. Prisoners executed in Ohio and Arizona also showed signs of feeling pain during their executions, one of which lasted two hours.
A ruling against the use of midazolam -- a sedative that may or may not render a prisoner unable to feel the drugs later used to paralyze the body and stop the heart -- would add to states' growing difficulties in executions. Midazolam has been used in 15 executions as the first in a three-drug protocol, and three times the deaths were lengthy and gruesome.
Conservative justices quickly noted that the prisoners were convicted of heinous crimes and sentenced to die. Lethal injection, they said, is used by all states currently performing executions because it's more humane than other options, such as gas chambers, firing squads and electric chairs.
Justice Samuel Alito said the case represented part of "a guerrilla war against the death penalty," in which opponents try to deny states the drugs that could carry out executions with little or no pain, such as those used in assisted suicide.
Justice Antonin Scalia blamed an "abolitionist movement" against capital punishment for the difficulties states face getting more reliable drugs from manufacturers. Justice Anthony Kennedy agreed, saying more reliable drugs were unavailable to most states "because of opposition to the death penalty."
"You have no suggested alternative that is more humane," Chief Justice John Roberts told Robin Konrad, the federal public defender for Oklahoma prisoners Richard Glossip, John Grant and Benjamin Cole.
The court's four liberal justices saved their tough questions for Oklahoma Solicitor General Patrick Wyrick. Justice Elena Kagan said midazolam doesn't stop later drugs from producing "the feeling of being burned alive." Justice Stephen Breyer said a state trial expert's testimony that midazolam is likely to induce a coma was accompanied by "zero" evidence.
The toughest questioning came from Justice Sonia Sotomayor, who wrote the dissent when the court refused to block Warner's execution. Citing what she alleged were several factual errors in the state's written brief, she said, "Nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes."
The problems with lethal injections are caused by states' inability to find pharmacies willing to provide the drugs that can render prisoners incapable of feeling pain. Pharmacies in Europe routinely refuse to help because of broad opposition to capital punishment; the European Union imposed an export ban in 2011. As a result, many states have turned to state-regulated compounding pharmacies, a process that has been shrouded in secrecy.
Last month, both the American Pharmacists Association and the International Academy of Compounding Pharmacists discouraged their members from participating in the process. The U.S. group called it "fundamentally contrary to the role of pharmacists as providers of health care."
The difficulties are forcing states with capital punishment laws to rejuvenate backup methods once viewed as beyond the pale. Tennessee would allow electrocution, Utah death by firing squad. Now Oklahoma lawmakers are moving toward legalizing the use of nitrogen gas.
"There are other ways to kill people, regrettably," Sotomayor said. "It doesn't have to be a drug protocol that we elect that has a substantial risk of burning a person alive who's paralyzed."
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