Divided U.S. Supreme Court Rejects Lethal Injection Challenge

  • Supreme Court clears way for execution of Alabama man
  • Sotomayor, Breyer say court should have taken up appeal

A divided U.S. Supreme Court cleared the way for the execution of an Alabama man who tried to prevent the state from using a sedative linked to botched executions.

Thomas Arthur argued that a federal appeals court made it virtually impossible for him to successfully challenge the state’s use of midazolam, a drug critics say puts inmates at risk of a painful death. In December, an Alabama inmate injected with midazolam coughed and heaved during the first 13 minutes of his execution.

Justices Sonia Sotomayor and Stephen Breyer said they would have heard Arthur’s appeal. In an unusually long dissenting opinion covering 18 pages, Sotomayor said the lower court ruling "permits states to immunize their methods of execution -- no matter how cruel or how unusual -- from judicial review."

A closely divided Supreme Court upheld the use of midazolam in 2015, saying inmates bore the burden of pointing to a less risky "known and available" alternative execution method.

Arthur, convicted of a 1982 murder, said an Atlanta-based federal appeals court made that standard even more challenging by requiring him to provide a source that would sell the alternative drug to the state.

He also said the appeals court improperly forced him to choose from the two methods allowed by the state -- lethal injection and electrocution. Arthur contended that a firing squad would be less risky than lethal injection with midazolam.

Opponents say midazolam can’t reliably put people into the deep, coma-like unconsciousness needed to ensure they don’t feel the effects of the lethal drug administered later. States have turned to midazolam after boycotts by European companies made it harder for officials to acquire other sedatives for executions.

QuickTake on Lethal Injections

The Supreme Court halted Arthur’s lethal injection in November, with Chief Justice John Roberts providing the necessary fifth vote even though he said he thought the execution should go forward. Today’s action automatically lifts that order, freeing the state to carry out the death sentence.

Roberts said his vote was a “courtesy” to four colleagues who wanted to block the execution until the court decided whether to take Arthur’s appeal.

"Courtesy fifths" used to be a more common practice in death penalty cases. They avert the situation in which the court agrees to hear an appeal -- something that takes the votes of only four justices -- while refusing to block the execution in the meantime.

The case is Arthur v. Dunn, 16-602.

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