(CN) – As the U.S. Supreme Court cleared the way Thursday night for a Tennessee execution, Justice Sonia Sotomayor offered a stinging rebuke of bureaucratic complacency that she called out as cruel and immoral.
“When the prisoners tasked with asking the state to kill them another way are denied by the state information crucial to establishing the availability of that other means of killing, a grotesque requirement has become Kafkaesque as well,” Sotomayor wrote in a dissent against the upcoming execution of Edmund Zagorski.
Convicted of the 1983 double murders of John Dale Dotson and Jimmy Porter, 63-year-old Zagorski filed suit earlier this week to die by electric chair rather than lethal injection.
With the order refusing Zagorski a stay Thursday night, and another order vacating a stay by the Sixth Circuit, the Supreme Court effectively ended his remaining legal options to avoid execution.
Joined in her dissent by Justice Stephen Breyer, Sotomayor said Thursday that she takes issue with the “perverse requirement that inmates offer alternative methods for their own executions.”
“This requirement was legally and morally wrong when it was promulgated, and it has been proved even crueler in light of the obstacles that have prevented capital prisoners from satisfying this precondition,” the dissent, states. “I would therefore grant a stay of execution and grant petitioner Edmund Zagorski’s petition for certiorari to consider what suffices for a prisoner to prove ‘a known and available alternative method of execution.’”
Tennessee is one of many states that has struggled in recent years to find alternative drugs for its execution protocol in the wake of pharmaceutical shortages driven by protests against the death penalty.
The barbiturate pentobarbital is widely regarded as a humane method of execution for its ability to render the subject fully insensate, but Sotomayor noted that Tennessee “was noncommittal about pentobarbital’s availability” after scheduling Zagorski’s execution earlier this year.
“The circumstances surrounding Zagorski and his fellow prisoners’ attempts to prove that pentobarbital was ‘available’ demonstrate how unfairly this already perverse requirement is being applied,” Sotomayor wrote. “For one, the prisoners’ ability to prove the drug’s availability was severely constrained by rules of secrecy surrounding individuals involved in the execution process. The prisoners were unable to depose individuals with direct knowledge of the state’s efforts to obtain pentobarbital. Nor were the prisoners allowed to learn which potential sellers the state ostensibly approached to try to obtain pentobarbital. Short of cold-calling every pharmacy in the country and asking for pentobarbital, it is anyone’s guess how the prisoners were supposed to challenge meaningfully the state’s claim that it could not obtain the drug. Yet they were faulted below for failing to offer ‘direct proof.’
“Moreover, it is not as if pentobarbital has vanished from the Earth, for purposes of execution or otherwise,” the dissent continues. “As Justice Lee [of the Tennessee Supreme Court] noted in dissent, Texas and Georgia have each used it multiple times in executions this year alone. Missouri also appears to be prepared to use it in upcoming executions. Moreover, what discovery the prisoners did obtain below indicates that roughly 10 of the 100 suppliers that TDOC reached out to in 2017 did have pentobarbital for sale — just not the number of doses that the state had requested. And at least one supplier around this time evidently quoted a price and discussed a ‘bulk $ option.’”
Sotomayor balked that Tennessee “hastens to kill a prisoner despite mounting evidence that the sedative to be used, midazolam, will not prevent the prisoner from feeling as if he is ‘drowning, suffocating, and being burned alive from the inside out’ during a process that could last as long as 18 minutes.”
Arguing that Zagorski is entitled to more than a stay of execution, Sotomayor said she would “grant certiorari to address what renders a method of execution ‘available.’”
“Capital prisoners are not entitled to pleasant deaths under the Eighth Amendment, but they are entitled to humane deaths,” the dissent concludes. “The longer we stand silent amid growing evidence of inhumanity in execution methods like Tennessee’s, the longer we extend our own complicity in state-sponsored brutality. I dissent.”
Zagorski’s suit has been host to numerous of late-breaking developments, including an order from Governor Bill Haslam just three hours before his scheduled execution to get the electric chair ready.
The Tennessean reported that Haslam’s reprieve was for 10 days, but that the state Supreme Court may need more time to reschedule the execution.