Arthur v. Dunn (Denial of Cert.)
580 U.S. 1141, 137 S. Ct. 725 (2017)
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Rule of Law:
Under the Eighth Amendment, an inmate's challenge to a method of execution cannot be dismissed solely because their proposed alternative method is not explicitly authorized by state statute. The 'known and available' alternative inquiry established in Glossip v. Gross is a factual assessment of feasibility and readiness for implementation, which is not controlled by state law.
Facts:
- Thomas Douglas Arthur was convicted of murder and sentenced to death in Alabama.
- Alabama's lethal injection protocol utilized midazolam, a sedative intended to render an inmate unconscious before the administration of two subsequent, extremely painful drugs.
- Due to a shortage of more effective barbiturates, several states, including Alabama, began using midazolam for executions.
- Multiple executions in other states using midazolam-based protocols resulted in inmates appearing to gasp, convulse, and show signs of extreme pain before dying.
- Arthur amassed evidence arguing that midazolam was incapable of rendering a person insensate to the pain of the subsequent drugs, thus creating a substantial risk of a torturous death.
- Arthur proposed execution by firing squad as a feasible and less painful alternative to Alabama's lethal injection protocol.
Procedural Posture:
- Thomas Arthur sued in the U.S. District Court for the Middle District of Alabama, challenging Alabama's lethal injection protocol as a violation of the Eighth Amendment.
- The District Court denied Arthur's motion to amend his complaint to propose the firing squad as an alternative, holding that it was not 'available' because it was not permitted by Alabama statute.
- Having found no available alternative, the District Court did not consider Arthur's facial challenge evidence regarding the risks of midazolam and entered judgment for the State.
- Arthur appealed to the U.S. Court of Appeals for the Eleventh Circuit.
- The Eleventh Circuit affirmed, holding as an independent ground for its decision that the firing squad was not an available alternative because it was beyond the statutory authority of the Alabama Department of Corrections.
- Arthur filed a petition for a writ of certiorari with the U.S. Supreme Court, asking the court to review the Eleventh Circuit's decision.
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Issue:
Does a state law that fails to authorize a proposed alternative method of execution automatically render that alternative not 'known and available' for the purposes of an Eighth Amendment challenge under Glossip v. Gross, thereby precluding a prisoner's claim regardless of evidence of the current method's cruelty?
Opinions:
Dissenting - Sotomayor
No. A state statute's failure to authorize an alternative method of execution does not render that alternative unavailable for the purposes of an Eighth Amendment challenge. The Eleventh Circuit's decision allows a state to immunize its method of execution from constitutional review simply by refusing to authorize any alternatives, which contravenes the Supremacy Clause by allowing state law to subvert federal constitutional rights. The 'known and available' requirement from Baze and Glossip refers to an alternative that is 'feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain,' not one that must be pre-authorized by state statute. In fact, Baze suggested a state's refusal to adopt a superior alternative could itself be evidence of an Eighth Amendment violation. The lower court's holding creates a non-uniform application of the Eighth Amendment, making a prisoner's constitutional rights dependent on the particular state's legislative choices. The court also erred by never considering Arthur's substantial evidence that midazolam creates an unconstitutional risk of pain, and by misinterpreting Glossip as a blanket approval of midazolam-based protocols.
Analysis:
This dissent from a denial of certiorari highlights a critical fissure in the interpretation of the Glossip v. Gross test for method-of-execution challenges. Justice Sotomayor argues against a statutory interpretation of 'available,' advocating instead for a practical, fact-based inquiry into an alternative's feasibility. This opinion signals a deep concern that the Glossip framework, as interpreted by lower courts, creates a loophole allowing states to sidestep Eighth Amendment scrutiny by manipulating their own statutes. It serves as a strong critique of the Court's non-interventionist stance on execution methods and foretells future legal battles over the meaning of 'available' as states continue to face challenges in sourcing lethal injection drugs.
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