The Supreme Court today ruled 5-4 that the use of midazolam—the first drug in a three-drug combination used last year in executions in Arizona, Ohio, and Oklahoma—does not constitute cruel and unusual punishment as prohibited by the Eighth Amendment. When the Supreme Court justices debated the case in April, things got heated. Such heat wasn't absent from today's ruling. Four of the boldest passages:
- Sonia Sotomayor, in her dissent: "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: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated."
- Samuel Alito, majority opinion: "We find it appropriate to respond to the principal dissent's groundless suggestion that our decision is tantamount to allowing prisoners to be 'drawn and quartered, slowly tortured to death, or actually burned at the stake.' ... That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments."
- Stephen Breyer, in his dissent: "The matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. ... I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question."
- Antonin Scalia, in his concurrence, which he read from the bench in what SCOTUSblog notes was an "exceedingly rare" move: "Even accepting JUSTICE BREYER's rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook. He says that the death penalty is cruel because it is unreliable; but it is convictions, not punishments, that are unreliable. ... Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment."
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