Washington (CNN)A sharply divided -- and at times testy -- Supreme Court took up Wednesday a case questioning the lethal injection protocol used for Oklahoma inmate Clayton Lockett's botched execution in 2014.
Supreme Court takes up death penalty drug case
The hearing revealed a deep tension on the part of some of the conservatives who expressed concern that the opponents to the death penalty are making it very difficult for the states to carry out executions using lethal doses of drugs.
"Let's be honest about what's going on here," said Justice Samuel Alito. He suggested that executions could be carried out painlessly but those who oppose the death penalty are conducting "what amounts to a guerrilla war" consisting 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 Antonin Scalia continued the line of inquiry saying other drugs that states have used in the past have been "rendered unavailable by the abolitionist movement" that puts pressure on companies that manufacture them.
"Abolitionists," he said, "have rendered it impossible to get the 100% sure drugs."
Justice Anthony Kennedy, who might hold the key vote, didn't say much during arguments but he did want to know what bearing the court should put on the fact that other methods aren't available "because opposition to the death penalty."
The constitutionality of the death penalty is not at issue in the case, just the efficacy of a particular drug called midazolam, which is considered a sedative, and was used in Oklahoma as the first of a three drug protocol in Lockett's death.
The justices are expected to decide whether midazolam passes constitutional muster and offer guidance to states that have lately been experimenting with new protocols due to a shortage of lethal injection drugs.
Both domestic and foreign manufacturers have taken steps to restrict the drugs from being used in executions, triggering a scramble on the part of the states to find new drugs.
Other botched executions using midazolam have occurred in Ohio and Arizona. While Ohio has announced it will no longer use the drug, it is still a part of the execution protocol in several states.
Lockett was left writhing on the gurney, gasping for breath before he died 43 minutes after his execution began. The state later did a full investigation into the death and concluded it was in large part due to the execution team's failure to properly insert an IV line. The state says that its updated its protocol -- in part by increasing the dosage of midazolam -- and that it has since been upheld by the lower courts.
But three inmates on death row blame midazolam. The prisoners -- Richard E. Glossip, John M. Grant and Benjamin R. Cole -- argue the drug violates the 8th Amendment's ban on cruel and unusual punishment because it fails to generate "a deep, coma like unconsciousness."
In court, Robin C. Konrad, a lawyer for the prisoners, told the justices that the drug "can never maintain the deep coma-like unconsciousness that is necessary to prevent a prisoner" from feeling the painful effects of the other two drugs in the protocol.
Justice Sonia Sotomayor -- who dominated the arguments with so many questions, that Roberts was forced to give a lawyer more time -- expressed grave concern about the finding of the lower court that uphold the use of the drug.
"It's clear error," she said at one point. She suggested the court should send the case back to the lower court for further review.
Kagan noted that without certainty that the first drug is working, another drug in the protocol could wreak "unbearable pain" on an individual.
In 2008, the Supreme Court upheld Kentucky's lethal injection protocol, but that case concerned a different combination of drugs that is no longer being used.
A plurality of the court ruled that a method of execution could violate the Constitution if it created a "substantial risk of serious harm" that is "objectively intolerable."
Jen Moreno, staff attorney at the Berkeley Law Death Penalty Clinic who has advised the petitioners in the case, says that midazolam "can't do what it's meant to do" and that the states using it should go back to the drawing board and find another drug.
"We know that there are 12 executions this year not using midazolam, so certain states have found other solutions," she said.
In court papers, Patrick Wyrick, the Solicitor General of Oklahoma said the state has improved its protocol since Lockett's death and that the current protocol "does not present a substantial risk of severe pain and cannot be considered cruel."
He described the crimes committed by the inmates including the fact that Glossip "hired his coworker to kill their employer by beating him to death with a baseball bat," and that Benjamin Cole "murdered his nine-month old daughter by snapping her spine in half."
In court, he told the justices that a lower court found that a 500 milligram dose of midazolam would "with near certainty, render these petitioners unconscious and unable to feel pain."
Before using midazolam as the first drug in the protocol, Oklahoma used sodium thiopental and then pentobarbital as sedatives, but was forced to switch to midazolam after those drugs became unavailable.
The case comes when 70% of Americans say they don't consider the death penalty itself to be "cruel and unusual punishment," according to a recent CNN/ORC poll.
Because of the shortage of lethal injection drugs, states are beginning to look at different back-up methods of execution including firing squads, the electric chair and the use of nitrogen gas.