Alabama’s Lethal Injection Protocol Survives Another Challenge

drugs

Today, the United States Supreme Court denied an Alabama death-row inmate’s request to review the constitutionality of Alabama’s three-drug execution protocol. Tommy Arthur argued that Alabama’s lethal injection cocktail violates the Eighth Amendment’s ban on “cruel and unusual punishment” because the method risks severe and unnecessary pain and suffering. The Court’s refusal to review the protocol almost certainly means that Tommy Arthur, who has been on death row for more than 30 years, will likely be executed soon. It also likely means that defendants who hope to challenge Alabama’s method of execution face a massive uphill battle in future fights.

Since lethal injection became the preferred method of execution in the 1980s, almost all states have used a three-drug cocktail to carry out the execution. The first drug administered would be a large amount of a sedative that’s supposed to knock the inmate unconscious and suppress all sensation. The second drug would be a paralytic, which would stop all muscular-skeletal movements, including the diaphragm. The final drug would cause the heart to stop.

Until recently, the first drug used in the three-drug protocol was either sodium thiopental. The manufacturer discontinued production of that drug, so states turned to pentobarbital. That drug also became unavailable in 2013. The states then turned to midazolam, the drug at the heart of recent Eighth Amendment litigation.

According to experts, midazolam doesn’t have the anesthetic effect of thiopental or pentobarbital. This is important because the second and third drugs administered in the the lethal injection process are extremely painful. Reports describe the pain from these drugs as a searing, burning pain spreading from the injection site throughout the body. Again, they literally stop your breathing and your heart. So, without a strong sedative, an inmate is likely facing an excruciating (and often prolonged) execution.

Executions using midazolam have been awful. Defendants executed with the drug in Oklahoma, Arizona, and Alabama died slowly and, apparently, very painfully when midazolam has been the first drug administered. (Justice Sotomayor’s dissent below details these executions.)

In challenging a method of execution as unconstitutional under the Eighth Amendment, a defendant must show a readily available constitutional alternative. Here, Arthur argued that there was a constitutional alternative to lethal injection in Alabama: the firing squad. The lower federal courts rejected this claim because Alabama law doesn’t specifically provide for death-by-firing-squad. Because Arthur couldn’t prove a constitutional alternative, the court wouldn’t review his claim that the cocktail using midazolam was unconstitutional under the Eighth Amendment.

Justice Sotomayor wrote a scathing dissent from the the Court’s refusal to consider this case. The dissent pointed out that Alabama recently amended its laws to allow for the execution of a defendant by “any constitutional method of execution.” See 15-18-82.1(c). Justice Sotomayor argued that Arthur met his burden of showing a constitutional alternative, even if that alternative wasn’t on the books in Alabama.

The dissent here was largely a critique on the lethal-injection protocol itself and the Court’s refusal to consider how screwed up our Eighth Amendment jurisprudence has become when a defendant can show that a method of execution causes unnecessary (and unconstitutional) pain and suffering, but can still be executed with that method because a State doesn’t have another method of execution on the books.

Read Sotomayor’s dissent here.

Advertisements
Alabama’s Lethal Injection Protocol Survives Another Challenge

Alabama Criminal Law Round-Up December 12th

crime scene do not cross

Here are a few of the criminal law stories that occurred around the state of Alabama this past week:

  • A “gun-wielding” version of the viral phenomenon, the Mannequin Challenge, recently led to the arrest of two North Alabama residents. The video, which has been shared over 86,000 times since being uploaded to Facebook in early November, shows several people in front of a neighborhood house and street posing with guns. After receiving a search warrant nearly a month after the video was posted, Madison County Police seized two handguns, an assault rifle and a shotgun along with several bags of marijuana and other drug paraphernalia. As of last Tuesday, two men, aged 49 and 23, were being held in the Madison County Jail in connection with the incident. Another male, 24, was taken into custody on a first degree charge of marijuana possession, but soon posted bail.
  • The Alabama Law Enforcement Agency announced the arrest of a 45-year-old Birmingham Schools employee on Friday. Charles Edward Walker Jr. faces drug trafficking charges after police seized 1,700 grams of heroin with fentanyl ($500,000 street value) and 90 grams of crack cocaine ($9,000 street value). Officers also confiscated a vehicle, a handgun and $55,000 in cash. The suspect posted bail and was released early Friday, but police report that the investigation is still ongoing.
  • Most businesses use social media for marketing and sales initiatives during the holiday season. The Pants Store in Crestline take a slightly different approach, specifically using Facebook and other platforms to “shame” shoplifters caught on camera. The most recent instance occurred during the store’s annual Holiday Open House on December 8th. A woman entered the store during the sale, and then proceeded to pick out a few items, try them on in the dressing room and walk out wearing a pair of $150 shoes, a pair of $160 pants and a purse full of other items. After discovering the theft, the owners posted an image from one of Pants Store’s 16 security cameras and asked for help in identifying the woman. As of Friday, they had a possible ID and are working with Mountain Brook police.
Alabama Criminal Law Round-Up December 12th

Alabama Criminal Law Round-Up November 1st

Here are a few of the criminal law stories that occurred around the state of Alabama this past week:

Alabama Criminal Law Round-Up November 1st

Alabama Criminal Law Round-Up October 24th

Here are a few of the criminal law stories that occurred around the state of Alabama this past week:

  • Authorities in Shelby and Jefferson counties conducted simultaneous raids on 12 Birmingham pawn shops last week. The raids on these shops (owned by Steve Scott of Pelham) seized over $600,000 cash and items such as stolen Fitbits, Nest Learning Thermostats and more. After the stolen items were sold to Scott’s stores, they were put up for sale on eBay and Craigslist. Scott and 15 of his employees were arrested; police are still looking for a 17th suspect.
  • Following the homicide of Mobile resident Delauna Anderson, 25, last Tuesday night, Mobile Police Chief James Barber spoke to the Wednesday morning meeting of the City Council about the surge of homicides in the city this past month. Barber informed the crowd that Anderson’s death is Mobile’s 33rd homicide in 2016. Ten homicides have been reported between October 2nd and 18th.
  • An Anniston man experienced a failed escape attempt after robbing Betty’s Barbecue last Friday night. After entering the back entrance of the restaurant during their closing procedures, Malachi Hicks took the night’s proceeds at gunpoint and attempted to flee the establishment. He was shot by an employee’s father, who had arrived to pick up their child. Hicks is in stable condition at a Birmingham hospital; no charges have been filed yet.
Alabama Criminal Law Round-Up October 24th

Alabama Criminal Law Round-Up October 17th

Here are a few of the criminal law stories that occurred around the state of Alabama this past week:

  • The employees and patrons of Upside Down Plaza in downtown Birmingham were thrown into an unexpected direction last Wednesday when an underage woman shot the bartender for refusing her service. The couple fled the scene and later crashed into a bridge near Sloss Furnace. They were arrested and taken into custody. The man shot underwent surgery and is expected to make a full recovery.
  • An 18-year-old, North Alabama teen is currently facing charges of first-degree criminal mischief and second-degree arson; he could receive up to 30 years in prison if convicted. Allegedly, the suspect set fire to the house belonging to his neighbor as well as burning 95 bales of hale in two separate incidents. Limestone County Police have set bail at $7500.
  • Cherokee County’s warrant round-up on Tuesday yielded ten arrests with one suspect getting away during a vehicle and foot pursuit. Of those arrested, the charges included drug trafficking, rape, non-payment of child support and hindering prosecution.
Alabama Criminal Law Round-Up October 17th

Alabama Criminal Law Round-Up October 7th

Alabama Criminal Law Round-Up October 7th

Alabama Criminal Law Round-Up: September 30th

Here are a few of the criminal law stories that occurred around the state of Alabama this past week:

Alabama Criminal Law Round-Up: September 30th