Over the objection of the court’s three liberal justices, the Supreme Court on Monday turned down a request from a Missouri death-row inmate who is contesting the state’s method of lethal injection and wants to propose the firing squad as a more humane method of execution. Ernest Johnson is missing nearly a fifth of his brain tissue as a result of surgery to treat a brain tumor, and he contends that there is a substantial risk that the drugs used in Missouri’s lethal-injection process will cause him to suffer “severely painful and prolonged seizures.” As part of an order list issued after the justices’ private conference last week, the court denied Johnson’s petition. Justice Sonia Sotomayor dissented from that denial, in an opinion joined by Justices Stephen Breyer and Elena Kagan; Breyer also penned his own dissent.
Johnson, who was convicted and sentenced to death for the murders of three gas-station clerks during a robbery, initially proposed nitrogen gas as an alternative to lethal injection. Pointing to the Supreme Court’s 2019 decision in Bucklew v. Precythe, holding that an inmate who wants to challenge the use of a method of execution in his particular case must identify a feasible alternative that will “significantly reduce a substantial risk of severe pain,” the U.S. Court of Appeals for the 8th Circuit rejected Johnson’s request. It explained that nitrogen gas “is an ‘entirely new method’ of execution’” that has never been used before; the Supreme Court’s opinion in Bucklew makes clear, the court of appeals reasoned, that “the Eighth Amendment does not require a State to adopt an untried and untested method of execution.” The court of appeals also declined to allow Johnson to amend his complaint to propose the firing squad – for the first time in Missouri since 1864 – as a method of execution.
Johnson came to the Supreme Court last summer, asking the justices to review the 8th Circuit’s ruling, and in late March the court asked for additional briefing on whether Johnson would be allowed to file a new complaint that proposed the firing squad as an alternative method. Johnson told the justices that there was a “significant possibility” that the lower courts would reject a new complaint, and the state agreed.
In her 10-page dissent, Sotomayor complained that the decision by the court of appeals not to allow Johnson to pursue the firing squad as an alternative method of execution punishes him “for failing to anticipate significant changes in the law brought about by Bucklew.” As a result, she continued, Johnson’s claim “will never be heard on the merits.” “Missouri,” Sotomayor concluded, “is now free to execute Johnson in a manner that, at this stage of the litigation, we must assume will be akin to torture given his unique medical condition.” Quoting her dissent in Bucklew, she added, “There are higher values than ensuring that executions run on time.”
Breyer filed his own brief dissent in which he observed that “the difficulty of resolving this claim, 27 years after the murders, provides one more example of the special difficulties that the death penalty, as currently administered, creates for the just application of the law.”
Although Missouri resisted Johnson’s attempt to choose the firing squad, some states are showing interest in reviving the firing squad for executions because of the difficulty in obtaining lethal-injection drugs. Earlier this month, South Carolina adopted a law that requires people sentenced to death to choose between the electric chair and the firing squad. Execution by firing squad is now legal in four states. The last time a firing squad was used in the United States was in Utah in 2010.
The justices will meet again for another private conference on Thursday, May 27; orders from that conference are expected on Tuesday, June 1.
This post is also published on SCOTUSblog.