The U.S. Supreme Court on Tuesday declined to hear a death row inmate’s appeal challenging the constitutionality of Alabama’s lethal injection protocol.
Justice Sonia Sotomayor wrote a passionate dissent to the decision, arguing that the court should have weighed whether the state’s use of midazolam — the controversial drug used in several recent high-profile botched executions — constitutes cruel and unusual punishment, and that inmates should have easier access to an alternative.
“What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet,” Sotomayor wrote. Justice Stephen Breyer joined in her dissent.
The appeal was brought by Thomas Arthur, who was found guilty in 1982 of shooting and killing his girlfriend’s husband. Scheduled to be put to death last November, he was granted a last-minute stay by the Supreme Court while justices considered his appeal.
Arthur had requested death by firing squad rather than lethal injection. His lawyers argued that Alabama’s lower courts were confused about how to interpret the 2015 Supreme Court decision in Glossip v. Oklahoma, which upheld the constitutionality of midazolam in executions and said that an inmate challenging any method of execution based on fear of pain must come up with a “known and available alternative.”
In its interpretation of that ruling, Alabama’s Department of Corrections said that inmates who didn’t want to be killed with midazolam would have to clearly identify an alternative method and put forward a detailed plan for utilizing it. The only two methods currently available to Alabama death row inmates are lethal injection and electrocution.
Sotomayor, in her 18-page dissent, appeared to understand why Arthur would want to be executed by firing squad. She reflected on the evolution of death penalty methods over time, saying that states turned to lethal injection because it was perceived as the most painless way to kill someone, more humane than the electric chair, gas chamber, or firing squad.
A nationwide shortage of traditional lethal injection drugs like sedatives pentobarbital and sodium thiopental was triggered in part by European manufacturers’ refusal to sell the chemicals to the U.S. for use in executions, and left states scrambling to come up with alternatives. Many states turned to midazolam as the sedative used in a three-drug protocol. Execution by lethal injection should take about seven minutes, but some executions using midazolam have taken much longer; in 2014, Arizona’s Joseph Wood snorted and gasped, seemingly in agony, for nearly two hours before finally dying after being given massive doses of drugs via repeated injections in an attempt to kill him.
“Execution absent an adequate sedative thus produces a nightmarish death,” Sotomayor wrote. “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.”