The weirdest moment from the Supreme Court’s dramatic death penalty arguments

Death row Ohio drug shortage
The lethal injection chamber at Southern Ohio Corrections Facility in Lucasville, Ohio. Oklahoma, Ohio and Texas, are the nation’s busiest death penalty state, AP Photo/Kiichiro Sato, File

The Supreme Court just ruled against three Oklahoma prisoners challenging the use of a lethal injection “cocktail.” From the beginning, the arguments from all sides bordered on ridiculous.

Conservative Justice Samuel Alito accused death penalty activists of mounting “a guerilla war on the death penalty.”

Then Chief Justice John Roberts suggested his liberal colleague Justice Sonia Sotomayor spent too much time talking after she grilled Oklahoma’s solicitor general for a while.

One point, however, stands out as the most absurd: The prisoner’s lawyer Robin Konrad somehow concluded that burning someone alive “could perhaps be deemed constitutional,” if there “was a way to ensure” that it was done in a “humane way,” as Politico’s Josh Gerstein noted. That was the lawyer arguing against Oklahoma’s lethal injection methods.

In the case, four Oklahoma inmates — although one has since been executed — allege that the state’s use of midazolam as the first of three drugs in a lethal injection cocktail violates the Eight Amendment, which prohibits cruel and unusual punishment.

The first drug in lethal injection cocktails is meant to render prisoners unconscious and unable to feel. But midazolam, as critics argue, doesn’t always accomplish that goal. When Ohio used midazolam for the first time in early 2014 to execute Dennis McGuire, he struggled and gasped for air for nearly 10 minutes before his heart stopped. Arizona also used midazolam in Joseph Wood’s lethal injection. It took nearly two hours for him to die.

Not only is midazolam’s effectiveness in question, it might also cause unbearable physical pain. During arguments Wednesday, Justice Elena Kagan compared being injected with the drug to being burned alive at the stake, which “everybody agrees [is] cruel and unusual,” she said.

Samuel Alito-frowning
Supreme Court Justice Samuel Alito’s pouty-face during his nomination hearings. Getty Images/Bloomberg

“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 affects. Maybe you won’t feel it, maybe you will. We just can’t tell. And you think that would be ok?” Kagan inquired.

That led to a back-and-forth between Kagan and Oklahoma’s solicitor general. The issue of burning somebody alive came up again during Konrad’s rebuttal, when Alito posed a hypothetical scenario: Even if the person being burned alive could feel no pain, would it still violate the Eighth Amendment?

Konrad responded that it “could be” a violation, prompting yet another question from Alito.

“But you’re not sure that being burned alive ­­ — that you think there are circumstances in which burning somebody at the stake would be consistent with the Eighth Amendment?” Alito asked.

That prompted a response from Konrad that seemed to contradict itself: “Well, what I’m saying is that this Court has ­­the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It’s cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be. That ­­I don’t think that any State would go to try to do that, because we move forward evolving …”

“That’s an incredible answer,” Alito responded. “You think that there are circumstances in which burning alive would not be a violation of the Eight Amendment?”

It’s an odd exchange for a conservative justice and lawyer arguing against the death penalty to have.

Most states had previously used pentobarbital, a drug approved for executions, in lethal injections — until its Danish manufacturer refused to continue selling the drug to the US because of its use in the death penalty.

Former Attorney General Eric Holder, who admitted he opposes the death penalty, called for a national halt on lethal injection until the high court decided midazolam’s relationship with the Eight Amendment.

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