By Christopher Zoukis
Despite dissent by two justices, in Arthur v. Dunn, the U.S. Supreme Court refused to consider a Feb. 21 appeal by an Alabama death-row inmate claiming midazolam, a controversial sedative used in the lethal injection process, may produce protracted, unbearable pain.
Thomas Arthur, was convicted of murdering his girlfriend’s husband in 1982, although his first two trials were reversed on appeal, and he did not receive a final death sentence until 1992. Arthur then requested to be executed by firing squad rather than by lethal injection. When corrections officials denied that request, Arthur went to federal court, arguing Alabama’s use of midazolam violated the Eighth Amendment’s ban on cruel and unusual punishment.
Citing precedents from earlier unsuccessful challenges to the use of midazolam, a federal district court in Alabama and the Atlanta-based 11th Circuit federal appeals court ruled against Arthur, who unsuccessfully sought Supreme Court review. As is customary, the Court did not announce its reasons for not accepting the appeal, but Justice Sonia Sotomayor, joined by Justice Stephen Breyer, took the unusual step of filing an 18-page dissent to explain why they thought the high court should have heard the appeal.
In an earlier case challenging use of midazolam, the high court had ruled 5-4 in Glossip v. Gross, a 2015 case from Oklahoma that there was not sufficient evidence the drug brought a substantial risk of severe pain. Further, the court said, inmates seeking to challenge an execution method as unconstitutionally cruel must not only show it would produce extreme pain, but also that there was also a “known and available” alternative executionmethod with a significantly lower risk of pain.
Justice Sotomayor’s dissent in the latest case called the standard set in the Glossip decision a “macabre challenge,” since it requires the inmate to show a less painful way for him to be put to death in order to bring a challenge to an arguably unconstitutional method allowed under state law. The circuit court’s decision held Arthur had not shown execution by firing squad was expressly authorized by Alabama law.
After rehearsing anecdotal and scientific evidence against midazolam use (not considered by the federal appellate court) and disputing whether that court had correctly gauged whether firing squad execution was in fact available in Alabama, the Supreme Court dissenters argued the Glossip standard would allow any state to escape scrutiny of its execution methods by simply outlawing any other proposed alternative.
That could preclude capital punishment issues from ever being fully considered by the courts, they argued, and thus dampen the discussion in courts and state legislatures as to exactly which “methods of execution the Constitution tolerates.”
Last November the Supreme Court blocked a scheduled execution date for Arthur, with Chief Justice John Roberts supplying the fifth vote needed for that extraordinary action. At the time, Roberts said he believed the execution ought to proceed, but explained he had joined four justices seeking the stay of execution as a “courtesy,” to provide time for the high court to decide whether it wanted to hear the appeal. Now that the appeal has ended, the Court’s stay is automatically lifted, leaving Alabama free to execute Arthur by lethal injection at its discretion.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.