(CN) – Alabama executed a convicted murderer on Thursday after Supreme Court Justice Clarence Thomas first stayed the execution before the full court lifted the stay, in an appeal challenging the state’s three-drug lethal-injection protocol.
Tommy Arthur spent 34 years on death row for murder for hire. The wife of Arthur’s victim in Muscle Shoals, Ala., testified that she had sex with Arthur and paid him $10,000 to kill her husband, Troy Wicker.
She initially reported that an intruder raped her and killed her husband, whose body police found shot through the eye in 1982.
Arthur, 75, has always maintained his innocence, and no physical evidence tied him to the crime. Critics of his constant appeals of his conviction called him the “Houdini of death row.” He successfully delayed seven prior execution dates.
Another Alabama prisoner confessed to the murder in 2008, but DNA testing on an Afro wig worn by the murderer was inconclusive as a match to either man. The Alabama Supreme Court denied Arthur’s request for a more advanced DNA test on the wig.
Hours before Arthur’s scheduled execution on Thursday, U.S. Supreme Court Justice Clarence Thomas granted him a stay to allow him to challenge Alabama’s lethal injection procedure, which uses midazolam as a sedative.
Lethal injection was long regarded as the standard method of execution but lost that status in 2009 when one of the drugmakers behind the three-drug protocol withdrew from the market.
The drug in question – a sedative called sodium thiopental – was critical to the process in that it masked the agony caused by the other drugs. States began using pentobarbital as a substitute but that too became unavailable in 2013. They now use a benzodiazepine called midazolam. Unlike the sedatives, however, the anesthetic-like midazolam has no pain-relieving effect.
The problems with midazolam came spectacularly into the spotlight with the 2014 execution of Ohio inmate Dennis McGuire, who choked and gasped for air for nearly 25 minutes before dying.
The full Sixth Circuit will hear arguments next month on the constitutionality of the current three-drug protocol. A three-judge panel upheld a lower court injunction against Ohio’s use of the protocol in March.
In February, the Supreme Court heard Arthur’s appeal to die by firing squad rather than by lethal injection. He presented evidence that Alabama’s lethal-injection protocol will result in intolerable and needless agony.
His appeal was denied, triggering an 18-page dissent by Justice Sonia Sotomayor, who said the “horrifying deaths” linked to midazolam-centered protocols are now facing scrutiny.
“Even if we sweep aside the scientific evidence, we should not blind ourselves to the mounting firsthand evidence that midazolam is simply unable to render prisoners insensate to the pain of execution,” her dissent states. “The examples abound.”
Although Justice Thomas issued a temporary stay of Arthur’s execution, the full Supreme Court lifted the stay later Thursday night.
Sotomayor again dissented last week.
“I continue to doubt whether midazolam is capable of rendering prisoners insensate to the excruciating pain of lethal injection and thus whether midazolam may be constitutionally used in lethal injection protocols,” she wrote.
The high court's majority did not give any explanation for its decision to deny Arthur’s petition for a writ of certiorari.
Arthur was executed early Friday morning at the Holman Correctional Facility in Atmore, Ala.
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