Justices Claim SCOTUS Has Created A Loophole Allowing Unconstitutional Executions

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Kevin Daley Supreme Court correspondent
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The Supreme Court declined to review a challenge from an Alabama inmate challenging the circumstances under which he will be put to death, drawing a fierce dissent from two justices who allege the denial creates a loophole for states to utilize unconstitutional methods of execution.

The challenge was brought by Thomas D. Arthur a contract killer sentenced to death in 1982. The high court temporarily delayed his execution in November 2016, while his petition for review was being considered by the justices. His challenge concerned requirements set down by the Court in Glossip v. Gross, a death penalty case in which the justices established a method of execution could not be used only if a prisoner demonstrates it causes severe pain, and provides an alternative method of execution. Arthur’s petition to the Court wondered whether he was limited to selecting only those alternative methods of execution already sanctioned by Alabama, and what a prisoners must show when proposing other means of execution.

The Court declined to take up these questions. Justice Sonia Sotomayor dissented from the denial of review, blasting her colleagues for creating what she believes to be a loophole in the law. Her dissent was joined by Justice Stephen Breyer, the Court’s clarion death penalty opponent.

“Nearly two years ago in Glossip v. Gross the Court issued a macabre challenge,” Sotomayor wrote. “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.”

“Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge,” she added.

Sotomayor argued that the Court’s denial of review ensures Arthur will be executed my a method she characterized as “nightmarish.” Arthur will be put to death by lethal injection, through a procedure she contends will cause him enormous pain and suffering. Marshaling medical evidence and arguments from other opinions, she says the torment and agony the procedure inflicts on death row inmates is masked by a sedative, creating the mere appearance of a dignified 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,'” she wrote, quoting from her dissent in Glossip.

Arthur proposed conducting the execution by firing squad. Alabama law does not provide for such an execution, leading lower courts to conclude he must be executed by the state’s lethal injection procedure. Sotomayor blasted this finding — upheld by the high court in its denial of review — arguing the decision creates a loophole in which states could execute inmates by unconstitutional methods by simply refusing to offer more humane alternatives.

“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,” Sotomayor wrote “This cannot be right.”

Arthur will be executed at Holman Correctional Facility in Escambia County, Alabama.

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