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The U.S. Supreme Court refused to consider a Feb. 21 appeal by an Alabama death-row inmate claiming midazolam, a controversial sedative used in the lethal injection process, may produce protracted, unbearable pain.

High Court Rebuffs Inmate’s Challenge to Execution Drug

Despite dissent by two justices, in Arthur v. Dunn, the U.S. Supreme Court refused to consider a Feb. 21 appeal by an Alabama death-row inmate claiming midazolam, a controversial sedative used in the lethal injection process, may produce protracted, unbearable pain.

Thomas Arthur, was convicted of murdering his girlfriend’s husband in 1982, although his first two trials were reversed on appeal, and he did not receive a final death sentence until 1992. Arthur then requested to be executed by firing squad rather than by lethal injection. When corrections officials denied that request, Arthur went to federal court, arguing Alabama’s use of midazolam violated the Eighth Amendment’s ban on cruel and unusual punishment.

Citing precedents from earlier unsuccessful challenges to the use of midazolam, a federal district court in Alabama and the Atlanta-based 11th Circuit federal appeals court ruled against Arthur, who unsuccessfully sought Supreme Court review. As is customary, the Court did not announce its reasons for not accepting the appeal, but Justice Sonia Sotomayor, joined by Justice Stephen Breyer, took the unusual step of filing an 18-page dissent to explain why they thought the high court should have heard the appeal.

In an earlier case challenging use of midazolam, the high court had ruled 5-4 in Glossip v. Gross, a 2015 case from Oklahoma that there was not sufficient evidence the drug brought a substantial risk of severe pain. Further, the court said, inmates seeking to challenge an execution method as unconstitutionally cruel must not only show it would produce extreme pain, but also that there was also a “known and available” alternative execution method with a significantly lower risk of pain.

Justice Sotomayor’s dissent in the latest case called the standard set in the Glossip decision a “macabre challenge,” since it requires the inmate to show a less painful way for him to be put to death in order to bring a challenge to an arguably unconstitutional method allowed under state law. The circuit court’s decision held Arthur had not shown execution by firing squad was expressly authorized by Alabama law.

After rehearsing anecdotal and scientific evidence against midazolam use (not considered by the federal appellate court) and disputing whether that court had correctly gauged whether firing squad execution was in fact available in Alabama, the Supreme Court dissenters argued the Glossip standard would allow any state to escape scrutiny of its execution methods by simply outlawing any other proposed alternative.

That could preclude capital punishment issues from ever being fully considered by the courts, they argued, and thus dampen the discussion in courts and state legislatures as to exactly which “methods of execution the Constitution tolerates.”

Last November the Supreme Court blocked a scheduled execution date for Arthur, with Chief Justice John Roberts supplying the fifth vote needed for that extraordinary action. At the time, Roberts said he believed the execution ought to proceed, but explained he had joined four justices seeking the stay of execution as a “courtesy,” to provide time for the high court to decide whether it wanted to hear the appeal. Now that the appeal has ended, the Court’s stay is automatically lifted, leaving Alabama free to execute Arthur by lethal injection at its discretion.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to The Huffington PostNew York Daily News, and Prison Legal News. He can be found online at ChristopherZoukis.comPrisonEducation.com and Prisonerresource.com.

About Christopher Zoukis

Christopher Zoukis, a writer currently incarcerated at FCC Petersburg (Medium), is an impassioned and active prison education advocate, a legal commentator, and a prolific writer of books, book reviews, and prison law articles. While living in federal prison at various security levels, retaliations for his activism have earned him long stretches in solitary, or "the hole." While in prison, he has earned numerous academic, legal, and ministerial credentials. Christopher is very knowledgeable about prison-related legal issues, prison policy, federal regulations, and case law. He is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons (Middle Street Publishing, 2017), College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014) and thePrison Education Guide (Prison Legal News Publishing, 2016).The Federal Prison Handbook is an IndieReader Discovery Awards winner. A regularly featured contributing writer for The Huffington Post and Prison Legal News, the nation's most prominent prison law publication, Christopher has enjoyed significant media exposure through appearances with the Wall Street Journal's Market Watch, Vice.com, Salon.com, In These Times, The Jeff McArthur Show, The Simi Sara Show,TheCommentary.ca, 88.9 WERS' award-winning "You Are Here" radio segment, and The Examiner. Other articles and book reviews appeared in The New York Journal of Books, the Kansas City Star, The Sacramento Bee, Blog Critics, Midwest Book Review, Basil and Spice, Seattle Post-Intelligencer, SF Gate, AND Magazine, Truth-Out.org, Rain Taxi, and the Education Behind Bars Newsletter, with content syndicated by the Associated Press, Google News, and Yahoo News. He established three websites: PrisonEducation.com, PrisonerResource.com, and ChristopherZoukis.com, and was a former editor of the Education Behind Bars Newsletter. In 2011, his fiction won two PEN American Center Prison Writing Awards for a screenplay and a short story. He taught a popular course on writing and publishing to over 100 fellow prisoners. Today Christopher is successfully working on a Bachelor's Degree in Interdisciplinary Studies (Business/Law) from Adams State University. Following his 2016 graduation, he plans on attending Adams State University's MBA program. He regularly advises fellow prisoners and prison consultants about legal issues and federal regulations governing the Federal Bureau of Prisons operations. Upon release he plans to attend law school and become a federal criminal defense attorney. Christopher will not allow incarceration to waste his years or halt the progress of his life. He began his prison terms as a confused kid who made poor decisions but is today determined to create a better life. "We can't let the past define us," he says. "We have to do something today to make tomorrow what we want it to be."

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