WASHINGTON (AP) – The Supreme Court on Monday refused to hear an appeal from a Missouri death row inmate seeking execution by firing squad.
Beyond the dissent of the three liberal judges, the court left in place a lower court ruling against inmate Ernest Johnson that could allow him to be executed by lethal injection. He’s on death row for killing three convenience store workers in Columbia, Missouri, in 1994.
Johnson has argued that Missouri’s deadly injectable drug, pentobarbital, could trigger seizures due to brain disease. Johnson still has part of a benign tumor in his brain.
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Monday’s court order has the effect of preventing Johnson from modifying his trial to include the possibility of execution by a firing squad, which is not allowed under Missouri law.
Based on previous Supreme Court rulings, a detainee who objects to the state’s chosen method of execution must suggest another means.
Johnson initially suggested he could be put to death using nitrogen gas, which is allowed in Missouri. But the Supreme Court ruled that states could refuse to use an enforcement method that has no track record, as is the case with nitrogen gas.
But when Johnson attempted to suggest a firing squad, a method long used in the United States, justices of the U.S. Circuit’s 8th Court of Appeals said he acted too late.
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Judge Sonia Sotomayor wrote for herself and for her colleagues Stephen Breyer and Elena Kagan that Johnson should be able to stand up for her case. “We should not accept the infliction of cruel and unusual punishment simply for the sake of expediency. That is what the Eighth Circuit ruling did. Because this Court chooses to stand idly by, I respectfully disagree. “Sotomayor wrote.
The state planned to execute Johnson in 2015, but the Supreme Court intervened on his behalf at that time.