In Execution Drug Case, Alito Cites “Guerrilla War” Against Death Penalty


Lethal injection was the grim subject before the U.S. Supreme Court yesterday, says NPR. The question was whether the drug combinations used to execute murderers in some states are unconstitutionally cruel. The issue came to the court after three botched executions over the past year. In 2008, the court upheld the use of a three-drug cocktail used by most states to administer the death penalty. The first drug, sodium thiopental, is an anesthetic used to put the prisoner in a deep comalike state. The second and third drugs paralyze and then kill the prisoner. The key drug used to anesthetize the inmate is no longer available in most places. Drug manufacturers and pharmacists have refused on ethical grounds to provide it for executions. The result is that states have tried other drugs. The most prominent is a drug called midazolam, which has been used in 15 executions.

“Let’s be honest about what’s going on here,” said Justice Samuel Alito. “This court has held that the death penalty is constitutional.” He asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony Kennedy, whose vote could be critical, asked one question: Is it relevant that the preferred drugs are not available because of opposition to the death penalty? Robin Konrad, representing inmates, said it should have no relevance.

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