Justice Stephen Breyer on Monday called for an end to the death penalty after the Supreme Court ruled that states with capital punishment may continue using a lethal injection drug linked to several botched executions. Breyer argued that four decades of studies and surveys “strongly indicate” that capital punishment has done little to deter crime and has at times led to innocent people being wrongly killed.

The court decided that the use of the drug – a combination of midazolam, a sedative, paralytic vecuronium bromide and potassium – does not constitute cruel and unusual punishment under the Eighth Amendment. The justices ruled 5-4 in favor of the drug. 

Justice Samuel Alito read the court’s opinion and was joined by judges Anthony Kennedy, John Roberts, Antonin Scalia and Clarence Thomas. “Because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain,” the opinion reads. “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether,” the five judges wrote.

The drug in question was midazolam, which may not reliably render a person unconscious during execution, potentially causing pain. The drug has been used in executions in Arizona, Florida, Ohio and Oklahoma. It came under scrutiny a year ago after the flawed execution of Oklahoma inmate Clayton Lockett, who was seen moving during his lethal injection, indicating that the drug had not made him unconscious. Three other death row inmates had similar reactions to the drug.  

Breyer's dissent read, in part: "Rather than try to patch up the death penalty's legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."

Read the full dissent here