The Supreme Court declined on Tuesday to hear a death row inmate’s challenge to Alabama’s lethal injection method, freeing the state to try for the eighth time to carry out the planned execution of Thomas Douglas Arthur.
But in a strongly worded, 18-page dissent opinion, Justice Sonia Sotomayor renewed questions about the effectiveness of the sedative, midazolam, as well as whether capital punishment violates the Eighth Amendment.
"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 the lethal injection method violated the constitutional ban on cruel and unusual punishment. “What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet.”
The Roberts Court has been split on capital punishment ever since it upheld Oklahoma’s lethal injection process in a 5-4 ruling. It was then that Justices Stephen Breyer and Ruth Bader Ginsberg raised concerns about whether all capital punishment violated the Eighth Amendment. While the court’s decision on Tuesday suggests it has no intention of taking up this issue again, Sotomayor’s dissent, which Mr. Breyer joined, further reveals the division among the justices, as Sotomayor insists the court modernize its standards.
Sotomayor’s opinion stands in contrast to Chief Justice John Roberts's ruling Tuesday on Mr. Arthur’s appeal. Arthur, who was convicted of a murder-for-hire in the 1982 shooting of his girlfriend’s husband, had argued that it is virtually impossible to challenge Alabama’s lethal injection procedures because state law requires inmates to identify an alternate source of execution drugs and a detailed plan for carrying out that execution. Instead of being killed with a drug cocktail that included midazolam, Arthur suggested the state use a sedative known as pentobarbital or even death by firing squad, a method Sotomayor pointed out is not available in Alabama.
A federal appeals court rejected Arthur’s suggestions, but Chief Justice Roberts voted to halt Arthur’s execution in November as the inmate waited in a holding cell outside the state’s execution chambers. Roberts’s vote, wrote Reuters, was a courtesy to the court’s four liberal justices.
But on Tuesday, Roberts said Arthur’s appeal “does not merit the court’s review.” In her dissenting opinion, Sotomayor strongly disagreed.
She argued the court must adjust its death penalty standards because American society’s acceptance of different methods of execution has changed over time, as, she wrote, science reveals the level of suffering involved. The court, she added, should also change its standards, not subscribing to the ones that prevailed when the amendment was adopted in 1791, but instead by the evolving standards of decency that mark progress in a maturing society.
Midazolam, a drug used by at least four other states to carry out the death penalty, has been a subject of debate following the controversial executions of several inmates over the last six years. The drug became the preferred sedative in the multi-drug cocktails in many states starting in 2011, when a European Union ban prevented companies from selling sodium thiopental and pentobarbital to states for use in capital punishment, Ellen Powell reported for The Christian Science Monitor. In appeals, death row inmates and others have argued midazolam is unreliable, pointing to three botched executions in 2014 – in Oklahoma, Ohio, and Arizona. But the high court upheld the states’ use of the drug in its 5-4 decision, saying that increased dosage and monitoring procedures like consciousness checks have addressed the problem, Warren Richey reported for the Monitor.
But the Oklahoma death row inmate who lost the 2015 appeal, Ronald Bert Smith Jr., appeared to also react to the lethal injection drugs when he was executed in December 2016. Thirteen minutes into the execution, Mr. Smith heaved, coughed, and appeared to move when he should have been sedated.
In her dissent opinion on Tuesday, Sotomayor said Arthur, the Alabama death row inmate, presented considerable evidence that the state’s lethal injection procedures “will result in intolerable and needless agony.” She also noted the court has twice said in death penalty cases that it has never ruled that a state’s execution method violated the Eighth Amendment.
"We should not be proud of this history. Nor should we rely on it to excuse our current inaction," wrote Sotomayor.
This report contains material from the Associated Press and Reuters.