The Supreme Court ruled 6-3 Monday against a Missouri death row inmate suffering from a brain tumor who sought to have his execution carried out by firing squad because he fears the state’s lethal injection protocol would likely produce excruciating seizures.
Ernest Johnson suffers from epilepsy as a result of the tumor and his lawyers argued that his condition would be exacerbated if he were executed by pentobarbital, a class of drugs known to produce seizures.
A panel of judges on the 8th US Circuit Court of Appeals ruled that Johnson had waited too long to make his request, noting that he had filed “three complaints” in the district court and had “ample opportunity to allege any alternative method that he wished to pursue.” The court held that the Supreme Court had ruled that method-of-execution challenges should be resolved “fairly and expeditiously” and closed the case.
While the Supreme Court has broadly upheld death by lethal injection, the justices have broken down along ideological lines when considering specific challenges from inmates with unusual health conditions.
Liberal Justice Stephen Breyer, speaking only for himself, has urged the court to revisit the constitutionality of the death penalty, arguing that it is often applied in an arbitrary fashion. In Monday’s case, writing alone, he reiterated that position.
Initially, Johnson requested to be executed not by the drug pentobarbital but rather by nitrogen gas. Subsequently, the Supreme Court ruled in 2019 that a state could decline to use nitrogen gas as an alternate method of execution because it lacked a “track record of successful use.” In that decision, Bucklew v. Precythe, the court said an inmate could look to other well-established methods of execution in other states.
After that opinion, Johnson sought to amend his complaint, arguing that he should be able to request a firing squad.
His lawyers told the court that the appeals court’s refusal to permit him to amend his complaint is “irreconcilable with Bucklew.”
Republican South Carolina Gov. Henry McMaster earlier this month signed a bill into law that allows death row inmates to elect execution by electric chair or firing squad if lethal injection drugs are not available, according to the state Legislature’s website. South Carolina is now the fourth state to allow executions by firing squad, joining Oklahoma, Mississippi and Utah.
Justice Sonia Sotomayor dissented in Monday’s case, joined by Breyer as well as Justice Elena Kagan.
Sotomayor noted that although death by firing squad is not authorized in Missouri, it has a “long history of successful use.” She said the lower court’s opinion was an “abuse of discretion” because it punished Johnson for “failing to anticipate” the Supreme Court’s decision in Bucklew.
“Missouri,” Sotomayor wrote, “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.”
She said there was “no reason” to think Johnson had made his request as a “delay tactic” but instead pointed to a concurring opinion penned by Justice Brett Kavanaugh in the Bucklew case where Kavanaugh had stressed that an alternative method of execution “need not be authorized under current state law” and that there was “little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.”
Sotomayor said Monday’s decision renders the promises made under the Bucklew case “an empty gesture.”
Four justices would have had to agree to take up the case. “Because this Court chooses to stand idly by, I respectfully dissent,” Sotomayor wrote.
In court papers, Missouri noted that Johnson was convicted of robbing a gas station and murdering three clerks nearly 27 years ago. “He bludgeoned their heads with a claw hammer, shot one clerk in the face, and stabbed another at least ten times with a screwdriver,” the state said.
Missouri’s attorney general, Eric Schmitt, told the court that the state’s current system is “humane” and “painless.”