Sotomayor Calls Out Brett Kavanaugh in Death Penalty Case
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Sotomayor Dissents in Death Penalty Case, Calls Out Kavanaugh and Conservative Justices for Turning ‘This Court’s Words’ into an ‘Empty Gesture’

The Supreme Court of the United States on Monday declined to hear an appeal from an imminently dead death row inmate who said the state’s planned use of lethal injection drugs would become an exercise in torture due to a specific medical condition. Justice Sonia Sotomayor dissented.

The case, stylized as Johnson v. Precythe, concerns Ernest Johnson, who is currently awaiting his death in Missouri after being convicted of three murders during a convenience store robbery in 1994.

In 2018, after years of litigation and appeals, Johnson convinced the U.S. Court of Appeals for the Eighth Circuit that his epilepsy–the result of a surgical procedure that removed part of a cancerous brain tumor–would “plausibly” be triggered by the Show Me State’s preferred killing method. When Johnson’s epilepsy is triggered, he will experience “severe and painful seizures,” according to Justice Stephen Breyer, who joined Sotomayor’s dissent in a concurrence. Justice Elena Kagan also joined Sotomayor’s dissent.

Sotomayor delves into the details:

Although doctors removed roughly one-fifth of Johnson’s brain tissue, they could not eliminate the tumor. The surgery scarred Johnson’s brain tissue, leaving a lasting brain defect. The tumor cells, scar tissue, and brain defect have together caused Johnson to suffer from epilepsy, which produces violent, uncontrollable, and painful seizures.

Johnson alleges that, because of his unique medical condition, injecting him with the drug pentobarbital, as Missouri’s lethal injection protocol requires, will create a “substantial” risk that he will suffer an extraordinarily painful seizure. Pentobarbital is part of a class of medications known to trigger seizures, even in those without seizure disorders. Pentobarbital also has “an anti-[analgesic] effect,” which means that “it exaggerates pain.” As a result, Johnson claims that executing him using pentobarbital is “sure or very likely to” trigger an exceptionally painful seizure and cause him “serious and needless pain.”

Several more years of litigation and appeals ensued. In between the successful pleading of Johnson’s position regarding Missouri’s desire to use the seizure-inducing drug and his latest attempt to secure a torture-free way to die, the Supreme Court decided Bucklew v. Precythe, which had two key holdings relevant to Johnson’s case. First, the nation’s high court ruled that a state cannot use an alternative killing method that lacks a “track record of successful use.” Second, the court held that suggested alternatives cannot be ignored simply because a state does not currently authorize such a method.

In other words, the five-four conservative majority in Bucklew held that ready-to-die plaintiffs are entitled to deaths that are free from cruel and unusual punishment even if a state doesn’t, at the time of litigation, use such a method–but those methods must be time-tested. In Johnson’s case, however, this precedent cut both ways.

The Eighth Circuit ultimately rejected his Bucklew-based request on the basis that Johnson originally requested to be killed using nitrogen gas, which, in large enough quantities, will end a human being’s life relatively peacefully. The problem for Johnson is that the petitioner in BucklewRussell Bucklew, also already requested to be killed using nitrogen gas. And that was the exact method Justice Neil Gorsuch rejected for its lack of a “track record.”

“Faced with these changes in the law, Johnson sought to amend his complaint to plead the firing squad as an alternative method of execution,” Sotomayor explains. “Although not authorized in Missouri, the firing squad has a long history of successful use.”

The appellate court declined to allow him to amend his complaint, however, and the dissent claims that denial “was an abuse of discretion.”

“In its view, Johnson should have pleaded the firing squad earlier, even before Bucklew,” Sotomayor notes. “Given that view, and in the interest of resolving Johnson’s claim ‘fairly and expeditiously,’ the Eighth Circuit closed the case.”

The dissent notes the upshot of Johnson’s apparent failure to anticipate the future decision of the Supreme Court:

Leave to amend a complaint must be granted “when justice so requires.” Justice requires it here. The Eighth Circuit’s decision punishes Johnson for failing to anticipate significant changes in the law brought about by Bucklew. Worse, it ensures that Johnson’s claim will never be heard on the merits. 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. To dispose of the case more quickly, the Eighth Circuit has sacrificed the Eighth Amendment’s chief concern for preventing cruel and unusual punishment.

Sotomayor also tenders a subtle though obvious critique of Justice Brett Kavanaugh’s Bucklew concurrence–since he refused to vote in favor of hearing Johnson’s appeal.

“[A]n inmate who contends that a particular method of execution is very likely to cause him severe pain should ordinarily be able to plead some alternative method of execution that would significantly reduce the risk of severe pain,” Kavanaugh wrote in the precedential case that came up short for the petitioner here.

“Johnson seeks only to take Bucklew up on that promise,” Sotomayor argues. “Denying him leave to amend his complaint under these circumstances renders this Court’s words an empty gesture.”

[image via Allison Shelley/Getty Images]

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