Three Supreme Court justices said a Missouri death row inmate should have been allowed to challenge his method of execution.
WASHINGTON (CN) — Spurring rebuke from liberal justices, the U.S. Supreme Court on Monday refused to take up the case of a Missouri prisoner who claims the state’s lethal injection procedure amounts to cruel and unusual punishment.
Three justices said in a pair of dissenting opinions that the Eighth Circuit was wrong to deny Ernest Johnson’s request to be put to death by firing squad, after he argued lethal injection would cause him painful seizures.
Johnson is a death row inmate with epilepsy who first asked Missouri to execute him with nitrogen gas — another method authorized by state law. He claimed pentobarbital, a common drug used in lethal injections alongside chemicals like pancuronium bromide or potassium chloride, would cause him an extraordinarily painful seizure.
While Johnson petitioned the Eighth Circuit for that change, the Supreme Court held in Bucklew v. Precythe in 2019 that states can reject requests for executions utilizing nitrogen gas because of its intermittent success. Johnson then argued a firing squad would be a better option for his execution.
But the Eighth Circuit closed the case, saying Johnson – who was sentenced to death in 1995 for the murders of three convenience store employees the year before – should have requested the change before the Supreme Court’s Bucklew decision.
The high court on Monday declined to hear Johnson’s appeal.
Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor dissented from the denial Monday, arguing the Eighth Circuit’s decision was an abuse of discretion.
While nitrogen was no longer a viable means of execution when the case went before the St. Louis-based appeals court, Sotomayor wrote that “any such defect can be corrected easily.”
“The notion that Johnson had ample opportunity to allege the firing squad rests on a flawed assumption that Johnson should have anticipated Bucklew,” she wrote. “Placing such an impossible burden on Johnson (a burden that even the Eight Circuit failed to meet in 2018) undermines the basic purpose of our pleading system.” (Parentheses in original.)
Sotomayor’s 10-page dissenting opinion says Missouri had ample notice for Johnson’s claims, which fully satisfied pleading standards for adjustments in Bucklew. Johnson’s only misstep was failing to predict the decision in Bucklew and address it in a preemptive manner, for which he bears no fault, Sotomayor wrote.
The Eighth Circuit’s citing of concern for a fair and expeditious resolution to the case also did not justify its rejection of Johnson’s claims because Bucklew didn’t alter the Federal Rules of Civil Procedure for execution claims, according to the dissent.
“There is no reason to think Johnson sought leave to amend as a delay tactic,” Sotomayor wrote. “The Eighth Circuit had already determined that Johnson plausibly alleged that executing him by lethal injection will cause serious pain. Bucklew suggested that plaintiffs in exactly this situation should have little trouble identifying other alternatives.”
Breyer, who penned a separate two-page dissent Monday, wrote to note one point about the difficulty of resolving decades-old disputes.
“I simply add that the difficulty of resolving this claim, 27 years after the murders, provides one more example of the special difficulties that the death penalty, as currently administered, creates for the just application of the law,” Breyer wrote.
Ginger Anders, a Munger, Tolles & Olson attorney who represents Johnson, did not immediately respond to a request for comment. Neither did Katharine Dolin, Missouri’s assistant attorney general.