The Supreme Court on Monday rejected a Missouri prisoner’s plea to be executed by firing squad instead of lethal injection because of a medical condition he said would cause him to experience seizures.
The court split down ideological lines 6-3, with the three Democratic appointees saying they would have heard the case of Ernest Johnson, the death row inmate who filed the appeal. Johnson needed at least four justices to have agreed to obtain a review of his case.
“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,” wrote Justice Sonia Sotomayor in dissent. She was joined by Justice Stephen G. Breyer and Justice Elena Kagan.
Johnson argued in court papers that, owing to a brain tumor operation, he would suffer severe seizures if he is executed by lethal injection, which uses the drug pentobarbital. He said the seizures would lead to a violation of his Eighth Amendment right to be free from “cruel and unusual punishments.”
Instead, Johnson said he would prefer to go before a firing squad. He has been on death row for more than two decades after killing three people at a convenience store in 1994.
Justice Sotomayor previously argued in favor of the firing squad over lethal injection.
In 2017, the Supreme Court denied a request by an Alabama death row prisoner who wanted the state to fatally shoot him rather than use lethal injection drugs.
Justice Sotomayor wrote a blistering dissent accusing her colleagues of endorsing an execution method that could be cruel and inhumane.
“In addition to being near instant, death by shooting may also be comparatively painless. And historically, the firing squad has yielded significantly fewer botched executions,” she wrote.
Johnson made his request after the high court rejected another Missouri prisoner’s request in 2019 to be executed by nitrogen gas. That prisoner also said he had a medical condition that would make death by lethal injection painful.
In the 2019 case, the court split 5-4, holding that death by nitrogen gas did not have a “track record of successful use.” The court said a prisoner could make a plea for another form of execution if he or she can show another state uses a “well-established” method.
Johnson attempted to plead that the firing squad was “well-established” but the courts would not hear his claim.
Missouri has not put anyone to death by firing squad since 1864. Johnson’s case was rejected by lower courts, and on Monday the Supreme Court declined to grant review.
South Carolina this month added the firing squad as an option for execution, joining several other states as well as inmates calling for its return. They say it is a more humane form of execution than lethal injection, and it also is seen as a solution to the shortage of lethal injection drugs that have left states with a death row backlog.
The South Carolina law requires death row inmates to choose between a firing squad or electric chair if lethal injection drugs are unavailable.
Meanwhile, a death row inmate in Nevada is asking to be executed by firing squad. He said it would be faster and less painful than the three-drug cocktail used in lethal injections. An inmate in Georgia also sought to die by firing squad, but an appeals court last month denied his request.
From 1608 to 2010, 143 executions were carried out by gunshot, most of them in the 19th century. The last was in Utah in 2010.
• Jeff Mordock contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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