In the case of Arthur v. Dunn, 16-602, the presently divided U.S. Supreme Court has resulted in the unsuccessful attempt by an Alabama inmate to have his execution by lethal injection stopped.
Thomas Arthur wanted the execution stayed due to incidents of “botched” executions from the use of the sedative used in the injection.
Arthur was convicted of a 1982 murder and has said the appeals court made it impossible for him to challenge the state’s use of the drug, Midazolam, which some critics have said can lead to a painful death, on occasion.
In December, an Alabama inmate was injected with the drug and lived for 13 minutes as he “coughed and heaved.”
According to Bloomberg, Thomas Arthur said an Atlanta-based federal appeals court made the standard even more challenging by requiring him to provide a source that would sell an alternative drug to the state and forcing him to choose between “lethal injection and electrocution.”
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.
The Supreme Court halted Arthur’s lethal injection in November, with Chief Justice John Roberts providing the necessary fifth vote, while also stating that “he thought the execution should go forward.”
Today’s action lifts that order, freeing the state to carry out inmate Arthur’s death sentence.
The Supreme Court was divided in its decision, with Justices Sonia Sotomayor and Stephen Breyer saying they would have heard Arthur’s appeal.
Justice Sotomayor said in an 18-page dissent that the lower court ruling “permits states to immunize their methods of execution — no matter how cruel or how unusual — from judicial review.”
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.
According to Bloomberg, “‘Courtesy fifths” used to be a more common practice in death penalty cases because 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.”
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