The court rejected an appeal by Thomas Arthur, convicted in the 1982 shooting death of his girlfriend's husband. In November, the court granted Arthur's request to put his execution on hold, but only because conservative Chief Justice John Roberts chose to side with the court's four liberals as a courtesy.
Sotomayor, in a strongly worded an 18-page opinion joined by fellow liberal Stephen Breyer dissenting from the court's refusal to hear the case, further exposed the rift among the 8 justices over the death penalty.
"He has amassed significant evidence that Alabama's current lethal junction protocol will result in intolerable and needless agony," she wrote, referring to Arthur's argument that Alabama's lethal injection method violated the U.S. Constitution's Eighth Amendment ban on cruel and unusual punishment.
Arthur had proposed being executed by firing squad instead.
Sotomayor said American society's acceptance of different methods of execution has changed over time, as science reveals the level of suffering involved. States have cast aside hanging, electrocution and gas chambers for this reason, turning since the 1980s to an injection of lethal chemicals.
"What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet," Sotomayor wrote.
The justices have sharply disagreed among themselves over capital punishment. In 2015, they upheld Oklahoma's lethal injection process in a 5-4 ruling even as Breyer and fellow liberal justice Ruth Bader Ginsburg raised concerns about whether capital punishment violated the Eighth Amendment.
Breyer repeated his concerns on Dec. 12 on the same day the court rejected four other death penalty appeals. But the court has shown no signs it will take up the broader question of the constitutionality of the death penalty.
Arthur has been on death row for more than three decades since being convicted of fatally shooting Troy Wicker as he slept.
Lawyers for Arthur have said lower courts are divided over how to interpret the Supreme Court's 2015 Oklahoma decision. Their challenge focused on part of that ruling that said an inmate contesting a method of execution based on the risk of severe pain must show there is a "known and available alternative."
Arthur's lawyers asked the Supreme Court to clarify several issues, including whether prisoners can only pick available alternatives that are already available in the state where they are to be executed and whether, if they are proposing a lethal injection drug, they have to show the drug is readily available.
Under Alabama law, death by firing squad is not available, Sotomayor noted. As a result, the legal rule set by the Supreme Court in the 2015 case "permits states to immunize their methods of execution - no matter how cruel or how unusual - from judicial review and thus permits state law to subvert the federal constitution," she wrote.
Sotomayor said the meaning of the Eighth Amendment's prohibition on cruel and unusual punishment should be determined not by the standards that prevailed when the amendment was adopted in 1791 but instead by the evolving standards of decency that mark the progress of a maturing society.
The case focused on the use of a sedative called midazolam as part of the lethal injection drug cocktail. Sotomayor said examples are piling up with evidence of midazolam's inability to render an execution painless.
Sotomayor wrote, "Execution absent an adequate sedative thus produces a nightmarish death: The condemned prisoner is conscious but entirely paralyzed, unable to move or scream his agony, as he suffers what may well be the chemical equivalent of being burned at the stake."
Source: Reuters, February 22, 2017
Supreme Court denies execution by firing squad
The Supreme Court refused Tuesday, over the vehement dissent of 2 justices, to let a death-row prisoner in Alabama choose a firing squad over a lethal injection cocktail that has caused several botched executions in recent years.
The court's unsigned and unexplained denial represented the latest chapter in its running debate over the morality of the death penalty and the methods used to carry it out - a debate enlivened in 2015 when 2 justices said the time had come to decide whether capital punishment is constitutional.
At that time, the court ruled 5-4 that states could continue to use a controversial form of lethal injection that critics say can lead to severe pain and suffering, even if a sedative makes it impossible to tell whether the condemned prisoner can feel its effects. The court also said prisoners must identify a "known and available alternative" means of execution - something Justice Sonia Sotomayor called "a macabre challenge."
That's what Alabama's Thomas Arthur did. Citing the risks identified from the use of the sedative midazolam, he asked that a firing squad carry out the execution that had been scheduled six times since he killed his girlfriend's husband in 1982, only to be blocked by legal challenges.
But a federal appeals court ruled - and the Supreme Court apparently agreed - that Arthur failed to prove the lethal injection would be painful. What's more, the court said, Alabama does not authorize the use of a firing squad.
Sotomayor, joined by Justice Stephen Breyer - the court's leading critic of the death penalty - wrote a blistering 18-page dissent in which she said states can now "immunize their methods of execution, no matter how cruel or how unusual, from judicial review."
If Arthur was imprisoned in Oklahoma, where firing squads are authorized, he would be able to avoid lethal injection, she noted. Oklahoma is one of the states, along with Ohio, Arizona and Alabama, where executions using midazolam have caused prisoners to writhe in apparent pain over the past 3 years.
"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. "This cannot be right."
Source: USA Today, February 22, 2017
Sotomayor questions whether lethal injection is 'our most cruel experiment yet'
Supreme Court Justice Sonia Sotomayor wrote Tuesday that lethal injection "may turn out to be our most cruel experiment yet" in the search for a humane manner in which to carry out the death penalty.
Sotomayor, along with Justice Stephen G. Breyer, dissented from the court's decision not to hear the case of Thomas Douglas Arthur, Alabama's oldest inmate, who killed his girlfriend's husband in 1982. The court, with Chief Justice John G. Roberts Jr. providing a "courtesy" 5th vote, recently delayed Arthur's execution while deciding whether to take his case.
As is the court's custom, the majority did not give a reason for passing up Arthur's case.
Sotomayor's dissent was just the latest example of how the court is split over the death penalty, although clearly a majority of the court still finds it constitutional. Breyer and Justice Ruth Bader Ginsburg have called for the court to accept a case that would allow briefing on that question but have found no other takers.
Sotomayor in her Tuesday dissent did not question the constitutionality of the death penalty but criticized the methods by which it is carried out. In the past, she has been especially wary of Alabama's procedures.
Arthur had objected to the use of the drug midazolam in his planned lethal injection, saying it has led to unconstitutional levels of pain and suffering in previous executions. The Supreme Court upheld the drug's use in 2015's Glossip v. Gross, and said objecting inmates must prove the drug would cause severe pain and propose another means of execution.
Arthur proposed a firing squad. But the U.S. Court of Appeals for the 11th Circuit turned him down, saying that he had not met the burden of proving midazolam would cause pain so severe it would be unconstitutional and that the state of Alabama did not sanction firing squads.
Sotomayor called the Glossip decision's test "a macabre challenge" but said Arthur had met it.
"After 34 years of legal challenges, Arthur has accepted that he will die for his crimes," Sotomayor wrote. "He now challenges only how the state will be permitted to kill him."
Sotomayor wrote the dissenting opinion for the court's liberals in Glossip and Tuesday repeated assertions that midazolam might only mask pain and suffering during lethal injections, not relieve it. The court in the past has said needless suffering during executions is unconstitutional.
Death by firing squad may be more instant and cause less suffering, Sotomayor wrote. But in any case, denying Arthur that choice makes the test the court authorized in Glossip irrelevant, she said. "Under this view, 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 wrote. "This cannot be right."
While Sotomayor has not joined the call to consider whether the death penalty can ever be constitutionally applied, she has become an outspoken critic of how it is carried out.
Referring to hanging, electrocution, the gas chamber and lethal injection, she said: "Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time. Science then reveals that - unknown to the previous generation - the states' chosen method of execution causes unconstitutional levels of suffering."
Lethal injection, she said, may be the latest in that pattern.
"What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet," she wrote.
Source: al.com, February 22, 2017
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