WASHINGTON -- The Supreme Court on Monday upheld the use of a controversial drug that has been implicated in several botched executions. Two of the justices said for first time that death penalty itself probably is unconstitutional.
The justices voted 5-4 in a case from Oklahoma that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.
The drug was used in executions in Arizona, Ohio and Oklahoma in 2014 that took longer than usual and raised concerns that it did not perform its intended task of putting inmates into a coma-like sleep.
Justice Samuel Alito said for a conservative majority that arguments the drug could not be used effectively as a sedative in executions is speculative.
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's opinion.
The Supreme Court's involvement in the case began in January with an unusually public disagreement among the justices over executions.