By Amy Howe
on May 24, 2021
at 1:38 pm
The Supreme Court on Monday denied a motion by an inmate on Missouri death row who denied the state’s lethal injection method and seeks to suggest firing squad as a more humane method of execution, due to objection from the court’s three liberal judges. Ernest Johnson is missing nearly a fifth of his brain tissue as a result of surgery to treat a brain tumor, and he claims there is a significant risk that the drugs used in Missouri’s lethal injection could make him “severely painful and painful” for prolonged seizures. “In the context of an assignment list published after the judges’ private conference last week, the court rejected Johnson’s petition. Judge Sonia Sotomayor contradicted this rejection in a statement from Judges Stephen Breyer and Elena Kagan. Breyer also wrote his own dissent.
Johnson, convicted and sentenced to death for the murder of three gas station employees during a robbery, initially suggested nitrogen gas as an alternative to lethal injection. Recalling the 2019 Supreme Court ruling in Bucklew v Precythe that an inmate wishing to question the use of a method of execution in his particular case must identify a possible alternative that “poses a significant risk of severe pain considerably reduced ”. The U.S. 8th Circuit Court of Appeals denied Johnson’s motion. It was stated that nitrogen gas is “a completely new method of execution” that has never been used before. The Supreme Court’s opinion in Bucklew makes it clear, according to the appellate court, that “the eighth amendment does not oblige a state to use an untested and untested enforcement method”. The appeals court also declined to allow Johnson to amend his appeal to propose firing squad as the method of execution – for the first time since 1864 in Missouri.
Johnson came to the Supreme Court last summer asking the judges to review the 8th Circle decision. In late March, the court asked for additional information on whether Johnson could file a new complaint suggesting firing squad as an alternative method. Johnson told the judges that there was a “significant possibility” that the lower courts would reject a new appeal, and the state agreed.
In their 10-page dissent, Sotomayor complained that the Court of Appeal’s decision not to allow Johnson to pursue firing squad as an alternate method of execution punished him “for not anticipating major changes in the law that Bucklew brought about.” As a result, she continued, Johnson’s claim “will never be heard on the matter”. “Missouri,” Sotomayor concluded, “can now execute Johnson in a manner which, at this stage of the dispute, we must assume resembles torture, given his unique health.” Quoting her dissent in Bucklew, she added, “There are higher values than making sure the executions are on time.”
Breyer submitted his own brief objection noting that “the difficulty in solving this allegation 27 years after the murders is another example of the particular difficulty the current death penalty poses for the fair application of the law brings. ”
Although Missouri resisted Johnson’s attempt to elect the execution squad, some states have shown interest in resuscitating the execution squad because of the difficulty of obtaining lethal injection drugs. Earlier this month, South Carolina passed a law requiring those sentenced to death to choose between the electric chair and the firing squad. Execution by firing squads is now legal in four states. The last time a firing squad operated in the United States was in Utah in 2010.
The judges will meet again for a private conference on Thursday, May 27th. Orders from this conference are expected on Tuesday June 1st.
This post was originally published on Howe on the Court.