(CN) – Chiding their colleagues for turning down a death-row inmate’s bid to face an Alabama firing squad, two Supreme Court justices said Tuesday’s “decision permits states to immunize their methods of execution — no matter how cruel or how unusual — from judicial review.”
Tommy Arthur has spent the last three decades on death row for murder for hire. The wife of Arthur’s victim in Muscle Shoals, Alabama, 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.
Despite maintaining his innocence, Arthur’s appeals have been unsuccessful.
In fighting to die by firing squad rather than by lethal injection, Arthur has presented evidence that Alabama’s lethal-injection protocol will result in intolerable and needless agony.
Precedent from the 2015 decision Glossip v. Gross raises the bar for such inquiries, however, issuing to inmates like Arthur what Justice Sonia Sotomayor called “a macabre challenge” in her dissenting opinion Tuesday.
“In order to successfully attack a state’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the state’s chosen method risks severe pain, but must also propose a ‘known and available’ alternative method for his own execution,” she wrote, joined by Justice Stephen Breyer.
Arthur’s challenge failed, according to the ruling, based on the finding by the 11th Circuit “that Alabama law does not expressly permit execution by firing squad, and so it cannot be a ‘known and available’ alternative under Glossip.”
“This cannot be right,” she said.
Sotomayor called it troubling that her colleagues have left in place a decision that “contravenes basic constitutional principles.”
Lethal injection was long regarded as the standard method of execution but lost that status in 2009 when one of the drugmakers behind the thee-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.
An expert for Arthur has testified that the inmate’s “cardiovascular issues, combined with his age and emotional makeup, create a constitutionally unacceptable risk of pain that will result in a violation of the Eighth Amendment if he is executed under the [midazolam] protocol.”
The Supreme Court granted Arthur a stay of execution last year when his challenge proved unsuccessful, but it denied him a writ of certiorari Tuesday, inspiring Sotomayor’s dissent.
Sotomayor slammed the 11th Circuit for failing even to consider Arthur’s substantial evidence that Alabama’s midazolam-centered protocol poses a substantial risk of severe pain.
“In sum, the Eleventh Circuit’s opinion rests on quicksand foundations and flouts the Constitution, as well as the court’s decisions in Baze and Glossip,” Sotomayor wrote. “These errors alone counsel in favor of certiorari.”
The last section of Sotomayor’s opinion goes through the grotesque history of execution in the United States, from hangings to electrocutions and even lethal gas.
These evolving standards are part of a dialogue, Sotomayor explained, required by the Eighth Amendment.
“States should not be permitted to silence it by statute,” she added.
Sotomayor 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,” the opinion states. “The examples abound.”
Arthur’s lethal injection was stayed after the alarming executions of Dennis McGuire in Ohio, of Clayton Lockett in Missouri and of Joseph Rudolph Wood in Arizona.
A month after Arthur was meant to have been executed, Alabama put to death Ronald Bert Smith. The Washington Post reported that Smith “clenched his fist” after the dose of midazolam, and was “apparently struggling for breath as he heaved and coughed for about 13 minutes.”
“These accounts are especially terrifying considering that each of these men received doses of powerful paralytic agents, which likely masked the full extent of their pain,” Sotomayor wrote. “Like a hangman’s poorly tied noose or a malfunctioning electric chair, midazolam might render our latest method of execution too much for our conscience — and the Constitution — to bear.”
Sotomayor conceded that some might find Arthur’s election to face a firing squad “regressive,” but she noted that the method of execution is at least instantaneous, painless and less likely to botch.
“To be clear, this is not a matter of permitting inmates to choose the manner of death that best suits their desires,” the decision concludes. “It is a matter of permitting a death row inmate to make the showing Glossip requires in order to prove that the Constitution demands something less cruel and less unusual than what the State has offered. Having met the challenge set forth in Glossip, Arthur deserves the opportunity to have his claim fairly reviewed in court. The Eleventh Circuit denied him this opportunity, and in doing so, thwarted the Court’s decision in Glossip, as well as basic constitutional principles.”