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Alabama inmate seeking death by firing squad loses bid for SCOTUS review; two justices dissent

By Debra Cassens Weiss

February 21, 2017, 3:02 pm CST

The U.S. Supreme Court on Tuesday declined to hear the appeal of an Alabama death-row inmate who is seeking execution by firing squad.

Justice Sonia Sotomayor, joined by Justice Stephen G. Breyer, dissented (PDF) from the court’s refusal to grant certiorari in the case of Thomas Arthur.

Sotomayor argued that Arthur had “amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony,” and his case should be heard. One of the drugs in Alabama’s procedure is the sedative midazolam, which replaced sodium thiopental after its U.S. supplier suspended domestic production and then left the market.

The Supreme Court had upheld a lethal injection protocol that used midazolam in the 2015 decision Glossip v. Gross. According to Sotomayor, the court had issued “a macabre challenge” in the case, requiring condemned prisoners challenging the constitutionality of their execution method to show not only that the method risks severe pain but also that there is a “known and available” alternative.

A federal appeals court had held in Arthur’s case that execution using a firing squad isn’t a known and available alternative because it is not expressly permitted by Alabama law.

“Under this view,” Sotomayor wrote, “even if a prisoner can prove that the state plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a state has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method.”

Sotomayor said it isn’t clear that midazolam sufficiently blocks pain to be used in executions. “Science and experience are now revealing,” she wrote, “that, at least with respect to midazolam-centered protocols, prisoners executed by lethal injection are suffering horrifying deaths,” although they might appear to be at peace because of paralytic agents.

“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 said.

Arthur was convicted of the 1982 murder of his paramour’s husband and has been mounting legal challenges for more than 30 years. His convictions were twice overturned, and he was convicted in a third trial.