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One new grant, and a Sotomayor dissent

Last week the court released its calendar for the April sitting, the final two-week session in which the justices are scheduled to hear oral arguments during the 2016-2017 term. With a full calendar (and then some) for April, and three cases that were granted in January carried over to the fall, it was not altogether surprising that the justices granted only one new case when they returned from their winter recess today. That case, Class v. United States, raises an interesting question about a criminal defendant’s right to appeal after he has pleaded guilty. But perhaps the most noteworthy development on today’s order list was a lengthy and impassioned dissent, by Justice Sonia Sotomayor, from the court’s decision not to review a challenge to Alabama’s lethal-injection protocol.

In November of last year, the justices stayed the execution of Thomas Arthur, who was sentenced to death for his role in a murder-for-hire scheme in the early 1980s, to give the court time to consider Arthur’s petition for review of the merits of his challenge. Chief Justice John Roberts provided what is known as the “courtesy fifth” vote to block Arthur’s execution: Although he did not believe that Arthur’s case met the court’s “ordinary criteria for a stay,” he opted to “vote to grant the stay as a courtesy” to the other four justices who had voted to put the execution on hold.

After considering Arthur’s petition for review at five consecutive conferences, today the justices announced that they would not weigh in on the merits of Arthur’s challenge. This means that, although four justices may have voted to stay Arthur’s execution so that the court could take a closer look at his petition for review, Arthur apparently could not garner the four votes that he needed for the court to grant review in the case, which in turn suggests that he must have lost at least one vote along the way. (Only two justices – Sotomayor and Justice Stephen Breyer – publicly noted their dissent from the court’s disposition of the case, so there is no way to know whether two other justices may have changed their minds, or whether one justice voted to grant review but nonetheless declined to join Sotomayor’s strongly worded dissent.)

Sotomayor’s 18-page dissent was a scathing indictment of not only the decision below, but also the broader history of executions and the Supreme Court’s role in that history. She began by characterizing the court’s most recent decision on lethal injection, in 2015, as issuing a “macabre challenge”: An inmate, like Arthur, who argues that a state’s method of execution violates the Constitution’s bar against cruel and unusual punishment must show both “that the State’s chosen method risks severe pain” and that there is a “known and available alternative method for his own execution.”

Arthur, Sotomayor argued, has “met this challenge,” by collecting “significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative—death by firing squad.” But the U.S. Court of Appeals for the 11th Circuit ruled that Arthur failed to show a “known and available” alternative because Alabama does not specifically permit execution by firing squad. That holding, Sotomayor contended, effectively protects states from lawsuits challenging execution methods, “no matter how cruel or how unusual”: States simply have to “pass a statute declining to authorize any alternative method.” And that, Sotomayor concluded, “cannot be right.”

Turning to the history of executions, Sotomayor sees an even bigger flaw in the 11th Circuit’s ruling. She explains that, time and again, states have used a particular method of execution – going from hanging to electrocution to the gas chamber to lethal injection – only to abandon it and move on to a new one as “science reveals that” the method “causes unconstitutional levels of suffering.” The 11th Circuit’s decision shuts off this “ongoing national conversation” about methods of execution by allowing states to block any recourse to alternative methods. Especially when lethal injection was adopted in large part as “a more humane and palatable method of execution,” she observed, it is a “cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet.”

Finally, Sotomayor pointed out that, in its two decisions on lethal injection, the court “observed that it has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” “We should not be proud of this history,” Sotomayor admonished. “Nor,” she concluded, “should we rely on it to excuse our current inaction.”

Class v. United States is the case of Rodney Class, a retired veteran who has a permit to carry a concealed firearm in North Carolina, where he lives. But when Class traveled to Washington and parked his car – containing three guns – in a parking lot near the U.S. Capitol, he was arrested and charged with violating a federal law prohibiting weapons on the Capitol grounds. Class pleaded guilty and then tried to argue on appeal that the law was unconstitutional, for two reasons: It violated his Second Amendment right to “keep and bear arms” for self-defense and it failed to provide sufficient notice of where weapons are prohibited. The government countered that the plea agreement, even if it did not do so explicitly, waived Class’s right to appeal, and the U.S. Court of Appeals for the District of Columbia Circuit agreed. The case will almost certainly be argued in the fall, with a decision expected by summer 2018.

Recommended Citation: Amy Howe, One new grant, and a Sotomayor dissent, SCOTUSblog (Feb. 21, 2017, 5:37 PM),