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WASHINGTON The U.S. Supreme Court on Tuesday
declined to hear a death row inmate’s challenge to Alabama’s
execution method, prompting liberal Justice Sonia Sotomayor to
assert that the court should have considered whether the lethal
injection procedures amounted to unconstitutional cruel and
The court rejected an appeal by Thomas Arthur, convicted in
the 1982 shooting death of his girlfriend’s husband. In
November, the court granted Arthur’s request to put his
execution on hold, but only because conservative Chief Justice
John Roberts chose to side with the court’s four liberals as a
Sotomayor, in a strongly worded an 18-page opinion joined by
fellow liberal Stephen Breyer dissenting from the court’s
refusal to hear the case, further exposed the rift among the
eight justices over the death penalty.
“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 Alabama’s
lethal injection method violated the U.S. Constitution’s Eighth
Amendment ban on cruel and unusual punishment.
Arthur had proposed being executed by firing squad instead.
Sotomayor said American society’s acceptance of different
methods of execution has changed over time, as science reveals
the level of suffering involved. States have cast aside hanging,
electrocution and gas chambers for this reason, turning since
the 1980s to an injection of lethal chemicals.
“What cruel irony that the method that appears most humane
may turn out to be our most cruel experiment yet,” Sotomayor
The justices have sharply disagreed among themselves over
capital punishment. In 2015, they upheld Oklahoma’s lethal
injection process in a 5-4 ruling even as Breyer and fellow
liberal justice Ruth Bader Ginsburg raised concerns about
whether capital punishment violated the Eighth Amendment.
Breyer repeated his concerns on Dec. 12 on the same day the
court rejected four other death penalty appeals.
But the court has shown no signs it will take up the broader
question of the constitutionality of the death penalty.
Arthur has been on death row for more than three decades
since being convicted of fatally shooting Troy Wicker as he
Lawyers for Arthur have said lower courts are divided over
how to interpret the Supreme Court’s 2015 Oklahoma decision.
Their challenge focused on part of that ruling that said an
inmate contesting a method of execution based on the risk of
severe pain must show there is a “known and available
Arthur’s lawyers asked the Supreme Court to clarify several
issues, including whether prisoners can only pick available
alternatives that are already available in the state where they
are to be executed and whether, if they are proposing a lethal
injection drug, they have to show the drug is readily available.
Under Alabama law, death by firing squad is not available,
Sotomayor noted. As a result, the legal rule set by the Supreme
Court in the 2015 case “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,” she wrote.
Sotomayor said the meaning of the Eighth Amendment’s
prohibition on cruel and unusual punishment should be determined
not by the standards that prevailed when the amendment was
adopted in 1791 but instead by the evolving standards of decency
that mark the progress of a maturing society.
The case focused on the use of a sedative called midazolam
as part of the lethal injection drug cocktail. Sotomayor said
examples are piling up with evidence of midazolam’s inability to
render an execution painless.
Sotomayor wrote, “Execution absent an adequate sedative thus
produces a nightmarish death: 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.”
(Additional reporting by Andrew Chung)
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