By Chris Casteel
A sharply divided Supreme Court engaged in an hour of contentious arguments Wednesday about the effectiveness of an Oklahoma lethal injection drug and whether death penalty "abolitionists" were actually making executions more painful.
Some conservative justices got impatient at times with the attorney representing Oklahoma death row inmates in the case, while Justice Sonia Sotomayor challenged the veracity of some written statements made by the Oklahoma attorney general.
Prompted mostly by the so-called "botched execution" of Clayton Lockett a year ago, the case focuses on whether the sedative used in Oklahoma's three-drug sequence works sufficiently to prevent an unconstitutional level of pain from the next two drugs, which paralyze the prisoner and stop the heart.
The court is expected to issue a decision in the case by July. Until then, executions in Oklahoma using the disputed drug have been put on hold.
It's possible the justices could rule that the case never should have been considered by the court. Some conservative justices said Tuesday it wasn't their job to determine whether a drug works in a certain way. Those types of factual disputes belong with district judges, they said.
Speaking to Robin C. Konrad, the attorney for Oklahoma death row inmates challenging the use of the sedative, Justice Antonin Scalia said, "You're saying the question of law is that the district court ignored two facts. Ignoring two facts does not make it a question of law; it's still a question of fact."
Justice Samuel Alito echoed that argument later, asking Konrad when the court had last reversed a district judge's finding of fact as erroneous. Konrad said the court had done so in a case involving Comcast "a few years ago."
Currently, 32 states and the federal government have the death penalty on the books, and all have lethal injection as the method.
The Supreme Court has upheld the constitutionality of the death penalty, and it never has ruled against a specific method of execution. In 2008, the court specifically upheld a three-drug lethal injection sequence that included a barbiturate as a sedative.
Since then, Oklahoma has had trouble getting that barbiturate or another considered equally effective. Last year, the state turned to midazolam, which is a different type of drug.
At one point during Wednesday's arguments, Scalia and Alito pounced on Konrad about the trouble states are having obtaining the barbiturates.
Oklahoma and other states could be carrying out executions painlessly, Alito said, but death penalty opponents are waging a "guerrilla war" to block states from getting the most effective drugs.
"And so the states are reduced to using drugs like this one, which give rise to disputes about whether, in fact, every possibility of pain is eliminated," Alito said.
Konrad said, "Well, Justice Alito, the purpose of the courts is to decide whether a method of execution or the way that the state is going to carry out an execution is, in fact, constitutional."
Scalia said he would be more inclined to agree with the Oklahoma inmates' challenge if death penalty "abolitionists" hadn't worked to prevent states from getting better alternatives.
Outside the court after the arguments, Konrad said the justices' comments were inaccurate and that some states still are using the other drugs in executions. Midazolam, she said, cannot reliably be used to prevent severe pain and suffering.
"We hope that the United States Supreme Court will find that the district court erred and will declare midazolam unconstitutional for executions," Konrad said.
Oklahoma Attorney General Scott Pruitt, speaking to reporters after the arguments, said the state would rather use the barbiturates as sedatives because they were effective and had been upheld as constitutional.
"The state of Oklahoma has consistently used those, and it's our preferred way," Pruitt said. "But they are not available to the state of Oklahoma. And we have a constitutional responsibility to carry out the death penalty in the state of Oklahoma."
The disputed drug, midazolam, does not violate the Eighth Amendment's protection against cruel and unusual punishment, he said.
'Burned at the stake'
Sotomayor and other liberal justices challenged the medical information used by Oklahoma to support midazolam's effectiveness as a sedative.
And Sotomayor essentially accused Oklahoma Solicitor General Patrick R. Wyrick of distorting the literature regarding midazolam.
She told Wyrick she was "substantially disturbed" and said some of the assertions about the drug were directly contradicted by the literature cited in the state's written arguments.
Wyrick countered that the state's quotations were accurate and suggested Sotomayor misunderstood the scientific studies.
Later, Wyrick told Justice Elena Kagan that -- under a previous high court ruling -- Oklahoma death row inmates have the burden to prove the disputed sedative very likely would cause them to experience pain.
Kagan asked what a district judge should do if he couldn't make a determination one way or the other about a sedative's effectiveness. Referring to pottassium chloride, the drug used to paralyze the prisoner being executed, Kagan said people had described it as inducing a sensation of being burned alive.
"We've actually talked about being burned at the stake, and everybody agrees that that's cruel and unusual punishment," Kagan said. "So suppose that we said, we're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects.
"Maybe you won't feel it, maybe you will. We just can't tell. And you think that would be OK?"
Wyrick said, "That isn't the world that we live in, and it's certainly not the world that this district court lived in. ... Their expert said this dosage of midazolam will render these (inmates) unconscious in no more than 60 to 90 seconds."
The court's conservatives said little during Wyrick's time, leaving the Oklahoma attorney to debate with the justices about what had been scientifically established about midazolam, how it had been used by surgeons and whether the effects wore off before the execution could be completed.
Near the end of the hourlong session, as the inmates' attorney made her concluding remarks, Alito returned to the question posed by Kagan about being burned at the stake.
What if, Alito asked, an anesthesiologist could ensure a prisoner felt no pain while being burned at the stake. Would it then be constitutionally allowable to burn a person at the stake?
"It could be," Konrad replied. "That's not the question, though, before this court."
Alito called that "an incredible answer," and Kagan jumped in to say that potassium chloride is burning somebody alive, albeit through the use of the drug.
"Which is what we have here," Konrad said. "And here the district court found a risk, a risk that it could not quantify. And that risk violates the Eighth Amendment."
(c)2015 The Oklahoman