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February 21, 2017

Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge

This morning, the US Supreme Court got back to work through the issuance of this lengthy order list.  The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here).  But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari  authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols.  Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):

Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).

Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad.  The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip.  Because this decision 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, I would grant certiorari and reverse.  I dissent from my colleagues’ decision not to do so....

The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. 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.  This cannot be right....

The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates.  The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).  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.  A new method of execution is devised, and the dialogue continues.  The Eighth Amendment requires this conversation.  States should not be permitted to silence it by statute....

Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same).  In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4).  We should not be proud of this history.  Nor should we rely on it to excuse our current inaction.

February 21, 2017 at 10:12 AM | Permalink


Reading the opinion, the guy put out the firing squad as the alternative if lethal injection isn't used. Sotomayor flagged that as an alternative some might want in her Glossip v. Gross dissent. Judge Kozinski had some support for that method for somewhat different reasons. The inert gas alternative was not raised from what I can tell in either opinion. With Oklahoma passing a law using it as a back-up, the case with a defendant raising it as an alternative is probably just a matter of time.


Posted by: Joe | Feb 21, 2017 10:32:20 AM

Sotomayor's dissent might be more persuasive if it weren't based upon a proposition that she would reject: that the firing squad is a constitutional method of execution. This is the hole in every abolitionist argument, that they only want to confront the method being challenged at the moment without explaining how a constitutional execution can be carried out. Look no further than litigation posture of Ohio's death row inmates, where they readily claim pentobarbital as readily available alternative in one brief, while arguing it fails to comport with the 8th Amendment in the very next. Whatever flaws the available, alternative method standard may contain (and I'd concede there are some), it is standard that is necessary based on the fundamental dishonesty of those who litigate in this space. Look no further than Sotomayor's own words, from the end of the introduction paragraph of Section IV:

"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. A new method of execution is devised, and the dialogue continues. The Eighth Amendment requires this conversation. States should not be permitted to silence it by statute."

How can this statement, and the firing squad being a constitutional method of execution both be true?

Posted by: Public Servant | Feb 21, 2017 11:05:10 AM

I am reading the petition in Class.

"Instead, the government argued that all government property is inherently a “sensitive place” where there is no right to armed self defense. J.A.112."

Oh come on man. There is no right to self-defense in the middle of the Alaska wilderness?! It is exactly this type of argument that brings the government into such disrepute. What's worse is that we now have a SCOTUS case who real basis is not anything meaningful but the direct result of government attorneys making outlandish claims. Poison on door handles and tiny fish. Why do those spring to mind....

Posted by: Daniel | Feb 21, 2017 11:33:43 AM

"she would reject: that the firing squad is a constitutional method of execution"

Not shown. She didn't join Breyer/Ginsburg's dissent last time arguing that the death penalty is probably unconstitutional.

Also, the law isn't a matter of all or nothing. Even if given her druthers, she thinks the death penalty is unconstitutional, or rather some "abolitionist," she or they can argue that granting -- given the state of the law -- that it is, something lesser is unconstitutional. The same principle raises in other contexts; it isn't just something those against the death penalty use and they aren't unprincipled either.

There has been arguments put forth that IF we are stuck with the death penalty that the firing squad is for the defendant the best way to go. I think the major issue here isn't concern for the person being executed as much that the people authorizing the killing don't like the blunt way being used. This to Judge Kozinski is a feature, not a bug of using the firing squad.

Finally, as to the last part, it can be true. The current generation is lethal injection. The problem seems to be that the firing squad is not "new," but the overall idea shouldn't be taken that literally. The cycle of history expressed there doesn't compel no repeats, so to speak. And, in fact, the firing squad has barely been used in this country from my understanding -- some usage in the military and states like Utah. IF the firing squad becomes "the" method, it would be somewhat novel, especially depending on how its used.

Posted by: Joe | Feb 21, 2017 11:48:36 AM

The petition says "sensitive places such as schools and government buildings," not ANY government property. An example given is a parking lot at a national park an example of a claim "like" the petitioner's. This would apply to the Capitol grounds as well. The "outlandish" claim inferred is unclear to me.

Posted by: Joe | Feb 21, 2017 11:54:57 AM

And Ginsburg didn't join this dissent....

Posted by: Public Servant | Feb 21, 2017 12:35:19 PM

Let's face it--Sotomayor isn't the sharpest Member of the Supreme Court.

First of all, the idea that Arthur has strong evidence that "Alabama’s current lethal-injection protocol will result in intolerable and needless agony" is up there with Ginsburg's ridiculous praising of the Judge Bye "high-school science experiment" opinion.

Second of all, Sotomayor's opinion has a Pollyanna-ish feel to it. A dialogue? Hardly. More like a dumb game of "Mother, may I?" which is profoundly demeaning to the state criminal justice process.

Third, the firing squad isn't available and wouldn't be even if it weren't illegal under state law--we live in a world where the wattage of a light bulb has constitutional moment and where a bunch of nitwit 11th Circuit judges insisted on a stay even though the drugs were tested for purity (the test, of course, obviating the "who made the drugs" issue, but try telling that to those 'rat judges). The state would have to come up with a procedure, which may be subject to its APA, and so on and so on.

Fourth, as a matter of logic, Sotomayor has a point (of course, logic is generally something that eludes her, see, e.g., her nonsense opinion with respect to a speedy trial issue), but logic isn't the end all-be all here. The federal courts, under the guise of the 8th Amendment, micromanage the execution process--so the Glossip/Baze limitations have an artificial feel to them and are better explained in terms of whether a stay is available. Sotomayor knows this, and presents the logic as if it were applicable when a date has been set.

Posted by: federalist | Feb 21, 2017 2:21:50 PM

Johnson v. Kelley presented the same issue and received the same dissents by reference. It's pretty stunning that this is not a just a per curiam case. Can it really be that inmates are limited to methods listed in the statute? What if the only alternative listed was being drawn and quartered?

Posted by: John | Feb 21, 2017 4:08:21 PM


I believe that drawing and quartering is one of the few things the cruel and unusual punishments clause of the 8th amendment does cover, that it says nothing at all about what offenses can draw any particular sentence. Other prohibited punishments include burning at the stake, evisceration and breaking on the wheel. There are probably others but they all have the common thread of having been used by the time of ratification.

Posted by: Soronel Haetir | Feb 22, 2017 12:57:18 AM

The problems with her dissent are more fundamental.

It is irresponsible of her to accept the inmates claims about Midazolam, which does not allow the inmate to regain consciousness, in the overdoses administered, as the medical literature makes clear.

Coughing, wheezing, snoring and snorting are well known effects of drugs that cause respiratory distress. Obvious.

Jerking, straining and spams are common with overdoses.

A lot of the nonsense started with these two cases, which, actually had, zero evidence of consciousness.

No "Botched" Execution - Arizona (or Ohio)

Posted by: Dudley Sharp | Feb 22, 2017 9:35:48 AM

How to solve these problems:

Make state/fed corrections dept in charge of the methods and protocols for all executions, just as they, currently, are for all other prison punishments, with language such as "executions will be carried out, by whatever methods and protocols, determined by the head of corrections to be constitutionally sound."

While subject to the same legal challenges as any other execution protocols, it avoids the massive amount of delay cause by legislative changes.

It is a mystery why states do not use their own, internal compounding pharmacists within their ocrrection depts. to make the LI drugs.

Nitrogen gas seems the obvious solution to this mess, which we have known for years.

Posted by: Dudley Sharp | Feb 22, 2017 9:48:05 AM

"it says nothing at all about what offenses can draw any particular sentence"

You can argue this but besides not being how the Supreme Court understands it (going back over 100 years), but it is not to me a very sound approach. The words are "cruel and unusual." The 'unusual' part doesn't sound like it requires that. So, we have the "cruel" part. It is hard to see how it says "nothing at all" about let's say giving someone (extreme example to make the point) ten years for jaywalking. It is "cruel" by most usages of the term to do that. One can cite historical and other grounds for this too.

This isn't exactly a "soft" way of doing things, especially if only really extreme sentences would be held to violate the amendment. As to the other comment, it is not like the dissent merely rested on the say-so of the defendant. Actual medical experts are cited. This then goes down to a debate over facts, which is a basic thing for the courts to handle. "Zero evidence" also doesn't mean "not enough for me," which isn't clarified by a few comments about what one or the other case "seems" to show either.

Posted by: Joe | Feb 22, 2017 9:56:08 AM

"determined by the head of corrections to be constitutionally sound"

We don't rely on "head of corrections" to determine this in this country though such individuals are given a lot of discretion. We have independent courts and there will continue to be findings by them that such and such protocol or whatever doesn't meet constitutional muster. Killing people isn't easy, it seems, especially when it is against general human inclinations to kill other people, even horrible people.

It also seems like legislators and the people of each state don't want to use their own pharmacies to make the drugs. The compounding process also seems to be complicated in various respects -- things aren't done generally for a reason. Sometimes, not, but usually a logical reason for it. Seems "we" also didn't know nitrogen gas is the solution, since again if it was, it would logically have been in place already.

Like other "solutions," like the link above suggests, I have my doubts this one will be the "one" too. Who knows.

Posted by: Joe | Feb 22, 2017 10:04:58 AM

As for being drawn and quartered being unconstitutional, that's precisely my point. An inmate facing an unconstitutional method of execution could only choose between two unconstitutional punishments (lethal injection and being drawn and quartered). What then should he propose?

Posted by: John | Feb 22, 2017 1:59:08 PM

The problem -- which the dissent glosses over -- is the very concept of cruel and unusual. There are certain punishments (e.g. being drawn and quartered) which we find to be inherently cruel and unusual because there very purpose is the infliction of unnecessary pain. There are other punishments (e.g. lethal injection) which are cruel and unusual only in comparison to other alternatives.

For punishments in the second category (not per se cruel and unusual), Glossip restricts the comparison to what alternatives the State actually has available. I am not sure Glossip would bar a declaratory judgment action alleging that a statute requiring the State to only use lethal injection was itself unconstitutional. However, in an action challenging a specific protocol to implement that statute rather than the statute itself, Glossip seems to require the alternative to comply with the State statutes.

Posted by: tmm | Feb 22, 2017 2:14:01 PM

There is a basic debate in the Glossip opinions on the room between the "first" and the "second" categories. Justice Alito briefly denies it is leaving open (even if there is no alternative present) really horrible things but Sotomayor et. al. argues the point.

Here, Sotomayor at one point argues the statute DOES leave open the firing squad. It then to me basically argues that "available" should include possibly being available if the law changes. A drug might be impossible to get because of those darn abolitionists in Europe etc., but a bullet is readily available.

As noted in a separate thread involving today's opinions opinions in another, there seems to be some "different wavelengths" problems here.

Posted by: Joe | Feb 22, 2017 7:53:05 PM

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