Mimesis Law
23 October 2021

Justice Sotomayor Gertrudes About Alabama’s Lethal Injections

February 24, 2017 (Fault Lines) –In 1982, Troy Wicker, Jr. was murdered. While he was still in his bed, Wicker was shot four times, the fatal shot passing through his eye. Shot with a .22 rifle, mind you. His wife, Mary Wicker, had a bloody face and was on the floor crying when cops arrived. Later, she told the officers that she had been raped by her husband’s killer. She appeared to be a witness, victim, and grieving widow. Although she denied knowing the attacker or having any involvement, she claimed the attacker was a ‘big black nigger.’ This was of course well before Mark Fuhrman and the OJ trial.

As it turned out, Mary Wicker did know her attacker and was really using the Susan Smith red herring. She had hired Thomas Arthur to kill her husband, in exchange for sex and $10,000 of the insurance proceeds. Mary Wicker was convicted for her part and received a life sentence. After ten years, she was released.

She testified against Arthur, claiming she had been coerced into the murder-for-hire plot. Not surprisingly Arthur was convicted too, but he was sentenced to death. The death penalty is notoriously biased in favor of women. The Alabama Supreme Court reversed his conviction. After a new trial, he was convicted again. The conviction was reversed again, he was tried a third time and convicted for the third time.

After his third trial, Arthur went through a series of attorneys but managed to timely file his appeals. This time his conviction was affirmed. But his post-conviction and federal habeas petitions were filed late, seemingly due to the inconsistency of representation. Ultimately, the state and federal courts dismissed the petitions as untimely.

In 2008, Arthur again sought relief, claiming that he discovered the real killer: another man confessed to the murder. Arthur presented an affidavit and asked for a DNA test to compare the two men’s DNA to a wig linked to the crime. DNA was discovered, but it was insufficient to serve as basis for comparison. The judge didn’t believe the confession, so Arthur didn’t get a new trial.

After decades of litigation, and five previous stays of his execution, it looked like it was almost the end of the road for Arthur. Until Alabama changed its execution protocol.

The new protocol replaced pentobarbital with midazolam. In response, Arthur filed his third civil rights action, challenging the application of the protocol to him. Arthur claimed it would cause him to unconstitutionally suffer, particularly because of his heart condition. He argued that a single dose of pentobarbital or a firing squad were appropriate alternatives.

The trial court only reviewed the claim relating to the pentobarbital. It found he failed to prove both elements of an Eighth Amendment claim. It concluded both that Arthur did not prove the lethal injection would cause a substantial risk of serious harm and that pentobarbital was available. Moreover, the court expressly concluded that Arthur’s heart condition was not likely to cause him special harm. As a result, the court refused to intervene in the execution protocol.

On appeal, the majority of the panel agreed with the trial judge. The dissenting judge focused on the trial court’s failure to consider the firing squad claim. Arthur argued the firing squad was a viable alternative to lethal injection. The dissenting judge concluded that the Constitution requires courts to consider other, valid methods of execution—even if the state statute might prohibit it. In her dissent from cert, Justice Sotomayor picked up the same idea:

The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method. This cannot be right.

We should all hope that it’s not right. Otherwise, a State could institute death by drawing and quartering, prohibit all other methods of execution, and successfully return executions to the Dark Ages. Certainly, most, if not all, the tactics used by medieval autocrats to inspire fear through executions would fail muster under the Eighth Amendment. So, Sotomayor is right, but also really, really wrong.

As discussed above, Arthur had multiple opportunities to contest the constitutionality of execution by lethal injection. Indeed, the Supreme Court has held that the appropriate way for federal courts to review most constitutional challenges to the manner of execution is during the habeas process. In essence, it is the only vehicle through which an inmate can be offered relief that would prevent his execution by a certain method altogether. So, he was left arguing over which way he could be rightfully killed.

This is because an inmate can only prevail in a civil rights action if the injunctive relief would not prohibit him from being executed altogether. While the State may prefer to execute a certain way, that preference can be successfully challenged in a civil rights action. But the State’s right to execute the inmate can only be challenged in a habeas action.

This distinction is why Arthur wanted to press an argument for the firing squad. He couldn’t argue that the State was constitutionally prohibited from executing him without demonstrating that there was another way to do so. Otherwise, if he won, then the State would have no way to execute him.

In this light, Sotomayor’s dissent is revealed as hyperbole. Should a State bring back drawing and quartering, to the exclusion of all other methods, any defendant sentenced to death that way could challenge that sentence under the Eighth Amendment on appeal and during habeas. In that case, the district court could vacate the punishment, likely sending it back to state court for a re-sentencing, which state would in turn have to devise a constitutional method of execution. Even in a civil rights case, the inmate could point to lethal injection. So, it’s the concern that is overheated.

Moreover, Sotomayor was spinning a hypothetical that didn’t apply here. Both the trial court and a majority of the panel concluded that the lethal injection protocol was constitutional. Arthur’s firing squad argument was only relevant if the court concluded that lethal injection was cruel and unusual. It didn’t; so, it doesn’t matter what the Alabama statute prohibited.

Sotomayor repeats throughout that the Brahmins on the Supreme Court get to declare what the Constitution says, rather than the unwashed members of state legislators. To the point, she says:

And for more than two centuries it has been axiomatic that this Court—not state courts or legislatures—is the final arbiter of the Federal Constitution.

No robe, no constitutional interpretation for you. But this idea is abandoned when it no longer suits sophistry:

The decision below is all the more troubling because it would put an end to an ongoing national conversation—between the legislatures and the courts—around the methods of execution the Constitution tolerates. The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” * * * The Eighth Amendment requires this conversation. States should not be permitted to silence it by statute.

But it’s, like, totally fine for the Court to silence states. Never mind that it’s not much of a dialog when you declare yourself to be the final arbiter. It’s like telling your kids that you want to hear their input, but the first moment they tell you something you don’t like, you yell ‘Shut up, my house, my rules.’

On balance, Sotomayor rehashed her dissent in Glossip. There, the Court made clear that an Eighth Amendment challenge—at least in a civil rights action—requires an inmate show that an acceptable alternative is available. She didn’t like it then, and she doesn’t like it now.

Certainly, on the surface, demanding an inmate argue that his execution should be carried out differently is macabre. But the Court was backed into that holding because abolitionists had made it increasingly difficult to carry out lethal injections, a point of which the Court was keenly aware:

If States cannot return to any of the “more primitive” methods used in the past and if no drug that meets with the principal dissent’s approval is available for use in carrying out a death sentence, the logical conclusion is clear. But we have time and again reaffirmed that capital punishment is not per se unconsti­tutional.

This is the same line of reasoning that originally led the court to refuse vacating executions outside of habeas. To abolitionists, it doesn’t matter if abolition comes in the front door or back door, so long as it comes. And the Court wants to do nothing to encourage it coming in the back door.

Disagree as you might about the appropriateness of capital punishment, it’s still dishonest to imply that the States, through legislation, can vitiate the Eight Amendment. Ultimately, it’s difficult to imagine that Sotomayor’s example would come to pass in reality. But it makes for sexy headlines.

3 Comments on this post.

Leave a Reply



Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Jeff Gamso
    24 February 2017 at 9:52 am - Reply

    You can posture about it and insist that it’s silly all you want, but Kagan exactly said what the law (as enunciated by Alito in Glossip – channeling Roberts in Baze) is: If the death penalty is constitutional, and the Court says that it is, ” “It necessarily follows that there must be a means of carrying it out.” (That’s Baze, Alito clarified the logic to insist on a constitutional “means of carrying it out.”)

    A year and a half ago, at FL, I explained it this way:

    In the United States, the Supreme Court has told us, in defiance of the laws of physics, that all things that are not constitutionally prohibited can in fact (not in theory, in fact) be done. It is, the court says, a logical necessity. A tautology.

    If something is “constitutional,” Chief Justice Balls and Strikes Roberts wrote for a plurality in Baze v. Rees, and Sam Alito cited as binding for a majority in Glossip v. Gross, “It necessarily follows that there must be a means of carrying it out.”

    Their subject was executions. Their claim was about technology. Executions are constitutionally permitted. Therefore the technology must exist to execute people. Now, if you’ve been wanting to visit the 13th Century, this is good news. It’s constitutional for you to do that, therefore it’s technologically possible. So say the berobed ones in our nation’s capital.


    • Andrew King
      24 February 2017 at 10:17 am - Reply

      The Kagan quote is consistent with what I wrote.

      I don’t agree with the rest of analysis. It’s not a tautology, unless the permissibility of a particular method is somehow the same as the permissibility of the punishment itself. And that’s not the case: we can have the death penalty and forbid stoning.

      You say the opinion means whatever is not prohibited can be done. I don’t see that. First, the death penalty is affirmatively constitutional; so, the proposition is framed improperly. Second, the three-way split was really over the fact of whether the lethal injection protocol was ‘humane’ and what the standard for evaluating that looks like in constitutional terms.

      If you’re taking issue over whether any execution can avoid the substantial risk of suffering, then Thomas and Scalia would have probably agreed. They wanted a more deferential standard. But then your beef is over the standard itself or the assumptions that went into the majority’s crafting of the standard–not magical thinking regarding the availability of technology.

      • Jeff Gamso
        24 February 2017 at 10:33 am - Reply

        If it’s constitutional, then there is a constitutional means of carrying it out. With or without the second “constitutional,” the claim is that whatever is constitutional is possible. That’s just silly.

        Of course, you can say that isn’t what they meant, and I’m sure you’re right. But it is what they said.

        Am I taking issue with “whether any execution can avoid the substantial risk of suffering”? Not here. And as I suggested in response to Judge Kopf, I suspect that a competently administered massive does of pentobarbital would probably reduce that risk dramatically. Or maybe the firing squad (per Debbie Denno).

        But Sotomayor is exactly right about what Glossip held and what the majority’s logic says.