The U.S. Supreme Court today upheld the use of the controversial sedative midazolam in lethal injection executions, voting 5 to 4. Justice Samuel Alito said for the majority that arguments the drug could not be used effectively as a sedative in executions are speculative. Two dissenting justices said for the first time that they think it’s “highly likely” that the death penalty itself is unconstitutional, reports the Associated Press. The court’s majority in the case from Oklahoma found that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment. The drug was used last year in executions in Arizona, Ohio and Oklahoma that took longer than usual and raised concerns that it did not perform its intended task of putting inmates into a coma-like sleep.
In dissent, Justice Sonia Sotomayor said, “Under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.” Alito responded, saying “the dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.” In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer. Four states have used midazolam in executions: Arizona, Florida, Ohio and Oklahoma. Also, Alabama, Arkansas, Louisiana and Virginia allow for midazolam, but they have not used it in executions.