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U.S. Supreme Court case upholding Oklahoma's execution protocol could impact Missouri's cases

(via Wikimedia Commons/California Department of Corrections)

Updated 9 a.m. Tuesday with news of Supreme Court's action - The U.S. Supreme Court will not hear a challenge by Missouri death row inmates to the state’s execution protocol.

The high court on Monday denied a request from the inmate's attorneys to consider the case. The Eighth Circuit Court of Appeals had ruled that in order to win their claims that Missouri's lethal injection cocktail amounted to cruel and unusual punishment, inmates had to show that a viable alternative was available.

The Supreme Court’s denial was not surprising following Monday’s decision in a similar case out of Oklahoma.

Our original story:

The Supreme Court of the United States has ruled that four death row inmates in Oklahoma have failed to prove that the state’s execution protocol violates the Eighth Amendment ban on cruel and unusual punishment. The decision makes it unlikely that the court will review a similar challenge filed by death row inmates in Missouri.

In a 5-4 opinion written by Justice SamuelAlito, the high court held that four inmates on Oklahoma’s death row did not show that the three-drug cocktail used by the state would cause severe pain, and they also could not show that there was a better alternative to that the state’s execution protocol.

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” Id., at 47. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. Ibid. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

Justice Sonia Sotomayor, writing for the dissent, said the court was seeking to punish death row inmates for circumstances out of their control – namely, states inability to obtain certain drugs previously used in executions.

“Nor, certainly, should these rapidly changing circumstances give us any greater confidence that the execution methods ultimately selected will be sufficiently humane to satisfy the Eighth Amendment. Quite the contrary. The execution protocols States hurriedly devise as they scramble to locate new and untested drugs, see supra, at 3, are all the more likely to be cruel and unusual—presumably, these drugs would have been the States’ first choice were they in fact more effective. … Courts’ review of execution methods should be more, not less, searching when States are engaged in what is in effect human experimentation.”

In March, the EighthCircuit Court of Appeals used reasoning similar to the majority Supreme Court opinion in rejecting a challenge by inmates on Missouri’s death row to this state’s protocol. Their attorneys have asked for a review by the full Supreme Court. 

“There’s kind of a logical disconnect between the idea that in order to say that something is cruel and unusual, you have to prove that something else isn’t,” said Elizabeth Unger Carlyle, an attorney for the inmates.

Carlyle said the legal team was still reviewing the Supreme Court decision in the Oklahoma case for ways to save their clients.

"But, of course, it’s disappointing that we’re still in a position where we’re not squarely confronting the issue of what’s happening to people when they’re executed in Missouri," she said.

Missouri’s case

Litigation over executions in Missouri started in 2012, when an inability to access certain drugs forced the state to use a single drug – propofol – in its executions.  

Judge Nanette Laughrey ruled that the inmates had successfully shown there was a risk the protocol would violate the Eighth Amendment, and that inmates did not have to show an alternative method was available. After the state changed its protocol in 2013, a second judge, Beth Phillips ruled that while the plaintiffs had shown the new drug, pentobarbital, would also create a substantial risk of severe pain, their attorneys had failed to prove that there were no other alternatives.

When the prisoners failed to include an alternate method in their court briefs, Phillips dismissed the case entirely. In March, the entire Eighth Circuit agreed with the decision. Attorneys for the inmates appealed to the U.S. Supreme Court.

Carlyle said the high court may make a decision whether to hear Missouri’s case tomorrow. She said expects justices to either refuse to review the case, or to send it back to the Court of Appeals. The lead plaintiff in the case, David Zink, is set to be executed July 14.

Execution secrecy

The requirement that inmates who challenge execution protocols on Eighth Amendment grounds must propose another method of execution is not only illogical, said Carlyle, it is also made much harder by Missouri’s secrecy around executions.

“It’s very difficult for us to allege well, okay, as long as you brought this drug, or as long as you use this method that we know is feasible and available, there won’t be any Eighth Amendment problems,” she said.

The Oklahoma ruling, and any subsequent action by the Supreme Court on the Missouri case, will not affect three state court cases that seek to force the Missouri Department of Corrections to reveal the name of the pharmacy that provides lethal injection drugs. Those cases – including one filed by a former St. Louis Public Radio employee – are still pending in front of Cole County circuit judge Jon Beetum.

But a decision by the high court not to hear the Eighth amendment challenge would stop an effort by Larry Flynt, the publisher of Hustler magazine, to have several documents unsealed.

Follow Rachel Lippmann on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.