The U.S. Supreme Court on Monday refused to let a Missouri death row inmate with significant health problems pursue his effort to face execution by firing squad instead of lethal injection for his conviction in a 1994 triple homicide.
The justices, with the three liberals on the nine-member conservative-majority court dissenting, turned away the appeal brought by Ernest Johnson, who has epilepsy prompted by a brain tumor and further damage to his brain caused by a surgical procedure.
Johnson, sentenced to death for three murders he committed during a gas station robbery, said that execution by lethal injection would cause significant pain in violation of the U.S. Constitution’s Eighth Amendment, which bars cruel and unusual punishment. He sought death by firing squad instead on the grounds it would be less painful.
“Missouri 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,” liberal Justice Sonia Sotomayor wrote.
Missouri has not authorized firing squads as a form of execution but Johnson’s lawyers pointed to other states that have used it.
Johnson had sought in 2016 to be executed via lethal gas but he changed approach after the Supreme Court ruled in a similar 2019 case against another Missouri inmate, Russell Bucklew.
The Supreme Court in Bucklew’s case said Missouri was not required to use lethal gas, even though it was authorized under state law, in part because there was no evidence it was less painful than lethal injection.
Bucklew was executed via lethal injection later that year.
The St. Louis-based 8th U.S. Circuit Court of Appeals last year ruled that Johnson’s case was governed by the Supreme Court ruling in Bucklew’s case and refused to allow Johnson to pursue firing squad as an alternative method of execution.
Sotomayor, joined by fellow liberal Justices Stephen Breyer and Elena Kagan, said that Johnson should have been allowed to pursue his claim, noting that in the Bucklew ruling the court said that an alternative method of execution does not have to be authorized in the state where it is sought.
The death penalty, which is authorized in 27 states and under federal law, remains a controversial issue in the United States even as public support for it has declined since the 1990s, according to opinion polls.
The number of U.S. executions and the number of people sentenced to death have both declined in recent years. Many other rich nations have stopped using the death penalty.
Missouri is one of a handful of states that carry out the bulk of executions.