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March 29, 2021

Still considering cert, SCOTUS orders additional letter briefing in method-of-execution case out of Missouri

As noted here, the US Supreme Court had fully briefed last November a set of notable questions about how modern Eighth Amendment method-of-execution claims are to be properly resolved.  The Justices considered Johnson v. Precythe, No. 20-287, a case emerging from Missouri, at numerous conferences before today finally having this interesting direction on its order list:


The parties are directed to file supplemental letter briefs addressing the following question: Given that the District Court dismissed without prejudice, would petitioner be barred from filing a new complaint that proposes the firing squad as the alternative method of execution?  Petitioner’s brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 12, 2021.

Respondents’ brief, not to exceed 5 pages, is to be filed with the Clerk and served upon opposing counsel on or before Monday, April 26, 2021.

Sounds like the Court may be looking for an easy way to boot this case, but perhaps folks with more experience with this intricate universe of litigation may be able to read more (or less) into this order than just that.

March 29, 2021 at 10:58 AM | Permalink


My understanding of the case is that Mr. Johnson, like Mr. Bucklew before him, raised an "as applied" challenge to the use of lethal injection. As with Mr. Bucklew, to the extent that he alleged the existence of a reasonable alternative, it was nitrous oxide. While initially, there was a split between how the Eighth Circuit resolved Bucklew's and Johnson's complaints, after the decision in Bucklew, the Eighth Circuit also rejected Johnson's complaints.

I am not 100% sure in Johnson, but I know that in Bucklew, the trial court gave Bucklew multiple opportunities to amend the complaint to make any allegations that he wished to make concerning alternative means of execution. In theory, I assume that the dismissal without prejudice does not bar a new petition. But given the past instructions of the Supreme Court about stays, the District Court would not have to grant a stay on a new petition given Mr. Johnson's delay in amending his complaint to allege the firing squad as a reasonable alternative.

Posted by: tmm | Mar 29, 2021 11:12:00 AM

Ginger Anders, coincidentally, is labelled as lead counsel in the case & was a guest on Strict Scrutiny Podcast -- the episode dropped the same day as the order, so was taped beforehand.

Posted by: Joe | Mar 30, 2021 10:35:33 AM

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