Arthur v. Dunn
137 S. Ct. 725
| SCOTUS | 2017Background
- Thomas Arthur, sentenced to death in Alabama, challenged Alabama’s three‑drug lethal‑injection protocol (which uses midazolam as the first drug) as posing a substantial risk of severe pain under the Eighth Amendment.
- After shortages of barbiturates, states began using midazolam; experts dispute whether midazolam can reliably render prisoners insensate to the paralytic and potassium chloride that follow.
- Arthur advanced both a facial challenge (that the protocol is generally inadequate) and an as‑applied challenge (that his health makes the protocol especially risky); he also proposed death by firing squad as a "known and available" less‑painful alternative.
- The district court refused to consider Arthur’s facial evidence because it concluded the firing squad was not statutorily authorized and thus not an available alternative; it also rejected Arthur’s as‑applied evidence and entered judgment for the State.
- The Eleventh Circuit affirmed, holding Arthur failed to satisfy Glossip’s first prong re: midazolam and independently concluding the firing squad was not available under Alabama law (and alternatively invoking laches). The Supreme Court denied certiorari; Justice Sotomayor dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alabama’s midazolam‑based protocol entails a substantial risk of severe pain (Glossip first prong) | Arthur: expert evidence shows midazolam’s pharmacology (ceiling effect; no analgesia) may leave prisoners conscious and subject to extreme pain from the later drugs | State: district and circuit courts relied on prior Glossip finding and other findings that midazolam is likely to prevent pain | Eleventh Circuit: Arthur failed to satisfy the first Glossip prong; Supreme Court denied cert; Sotomayor dissented that courts ignored Arthur’s facial evidence |
| Whether a "known and available" alternative is required and whether Arthur’s firing‑squad alternative qualifies | Arthur: firing squad is feasible, readily implemented, and less likely to cause severe pain; offered expert and historical evidence | State: firing squad is not authorized by Alabama statute/Dept. of Corrections and thus not an available alternative | Eleventh Circuit: firing squad not available under state law; Sotomayor: state statute authorizes any constitutional method if others are invalid, so federal courts should review |
| Whether state statutes can foreclose judicial review of alternatives by prohibiting particular methods | Arthur: allowing states to bar alternatives by statute would let states insulate unconstitutional methods from Eighth Amendment review | State: reliance on state statutory scheme and DOC authority to set protocols | Sotomayor dissent: courts cannot permit state law to override federal constitutional protections; certiorari should have been granted |
| Whether laches barred Arthur’s firing‑squad claim | State/Court: Arthur should have amended earlier (after Baze) and delay bars relief | Arthur: he acted promptly after Glossip and Baze was not read as imposing a pleading requirement | Eleventh Circuit: invoked laches as alternative ground; Sotomayor criticized that ruling |
Key Cases Cited
- Baze v. Rees, 553 U.S. 35 (plurality) (establishing feasibility/readily‑implemented/less‑risk framework for alternatives under the Eighth Amendment)
- Glossip v. Gross, 576 U.S. (Supreme Court decision adopting the "known and available" alternative requirement)
- Trop v. Dulles, 356 U.S. 86 (Eighth Amendment interpreted by evolving standards of decency)
- Kennedy v. Louisiana, 554 U.S. 407 (reference to evolving standards and Eighth Amendment interpretation)
- Marbury v. Madison, 1 Cranch 137 (principle that this Court is final arbiter of the Constitution)
- Martin v. Hunter's Lessee, 1 Wheat 304 (necessity of uniformity in constitutional interpretation)
- Payne v. Tennessee, 501 U.S. 808 (state criminal laws subject to U.S. Constitution)