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Conservative justices not swayed by arguments against death penalty drug

Supreme Court argument reveals a tense divide over the death penalty and how it is, or is not, carried out

One year after Oklahoma prison authorities botched the execution of Clayton Lockett, lawyers for three other Oklahoma murderers urged the U.S. Supreme Court to block any further lethal injections that use a sedative that they suspect will fail to induce deep sleep.

But the defense lawyers made little headway with the court’s conservative majority Wednesday.

Instead, the argument revealed an unusually tense divide within the court over the death penalty and how it is, or is not, carried out.

“Let’s be honest about what’s going on here,” Justice Samuel A. Alito Jr. said. “Executions could be carried out painlessly,” he said, noting that in states where assisted suicide is legal, people who are terminally ill may obtain drugs that allow them to die without pain.

He said opponents of capital punishment were carrying out “a guerrilla war against the death penalty” by making it hard for states like Oklahoma to obtain drugs such as sodium thiopental that would induce deep sleep.

Justice Antonin Scalia agreed the “abolitionist movement” had created the problem now facing states that used lethal injections.

But liberal justices Sonia Sotomayor and Elena Kagan blamed Oklahoma for pressing ahead with the use of midazolam, a sedative that may not effectively prevent an inmate from feeling burning pain during an execution.

There is a “substantial risk of burning a person alive who’s paralyzed,” Sotomayor said.

At one point, she questioned whether Oklahoma Solicitor Gen. Patrick Wyrick had deceived the court about the effectiveness of the drug. “So nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes,” Sotomayor said.

The case, Glossip vs. Gross, does not challenge the death penalty in general or even the use of lethal injections, which the Supreme Court upheld as an execution method in 2008.

The case concerns the state’s use of one specific drug as part of the execution.

For decades, Oklahoma relied on a three-drug protocol. Sodium thiopental induced a deep sleep. Next, pancuronium bromide was injected to paralyze the muscles, and potassium chloride stopped the heart.

Potassium chloride can cause searing pain unless a person is sedated to the point of insensibility, medical experts have said. Sodium thiopental accomplishes that sedation, but questions have been raised about whether the substitute drug — midazolam — would do so or would leave the condemned prisoner paralyzed but suffering.

“People say it’s like being burned alive,” Kagan said.

Wyrick insisted midazolam renders an inmate “unconscious in no more than 60 to 90 seconds” and unable to feel pain, so long as the drug is properly administered in the right dosage. He said Oklahoma and other states had used the drug without problem in many executions.

The court’s recent actions suggest a majority is not likely to block the use of midazolam. In January, anti-death-penalty lawyers appealed to the justices on behalf of Charles Warner, a child murderer who was about to be executed with the use of midazolam.

By a 5-4 vote, the justices refused to stop the execution, and Warner was put to death.

But while five votes are needed to stop an execution, only four are required to hear a legal claim. One week after allowing Warner’s death, the court announced it would hear the Oklahoma case, which raises the same issues his case presented.

Twitter: @DavidGSavage

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