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SCOTUS denied a petition for a writ of certiorari - Ernest Johnson

(Missouri) --- On May 24th, 2021, the United States Supreme Court denied a petition for a writ of certiorari from Ernest Johnson, a man sentenced to death in Missouri. Johnson had one-fifth of his brain tissue removed in 2015 in an attempt to remove a brain tumor. He is seeking an alternative method to lethal injection of pentobarbital which risks causing him severe and painful seizures. This decision was met with dissent by three Supreme Court Justices- Breyer, Sotomayor, and Kagan.

In 2016 Johnson asked for an alternative method of execution, nitrogen gas. In April 2019, the US Supreme Court, in another Missouri case, Bucklew v. Precythe, 587___U.S. (2019), ruled that nitrogen gas lacked “a track record of successful use.” Id., at ___(slip op., at 22). The decision in Bucklew announced that to establish this “track record,” those facing executions may look at methods in other States, and Missouri itself suggested the firing squad as an alternative during oral arguments. Given that view, Johnson sought to include firing squad as an alternative method. The Eighth Circuit Court denied Johnson’s claim and closed the case, which Sotomayer called an “abuse of discretion.” Sotomayer writes, “to dispose of the case more quickly; the Eight Circuit has sacrificed the Eighth Amendment’s chief concern for preventing cruel and unusual punishment,” 593 U.S. ___ (2021).

This decision in the Eighth Circuit Court concluded that Johnson should have pleaded the firing squad prior to the Bucklew ruling, which announced that alternative methods of execution need not be authorized by state law … “rests on a flawed assumption that Johnson should have anticipated Bucklew,” writes Sotomayor. Johnson has not had the opportunity to pursue the very method of execution that Missouri suggested during oral arguments in Bucklew.

This is now the second time the State of Missouri has opposed an alternative method of execution. This push for expediency by the Missouri Attorney General is evidence of their willingness to inflict cruel and unusual punishment. “There are higher values than ensuring that executions run on time.” Id., at _____ (SOTOMAYOR,J., dissenting) (slip op., at 5).

The U.S. Supreme Courts' decision not to review Johnson's motion for an alternative method is not surprising given their hostility against people fighting executions. Johnson's legal team followed all of the correct procedures for ensuring due process and preserving Johnson's Eighth Amendment rights to be free from cruel and unusual punishment.

The Eighth Circuit Court and the Supreme Court of the United States have decided that "expediency" is more important than allowing Johnson an opportunity to have his claims heard. Bryers dissent rightfully points to the "special difficulties" in the application of the death penalty. “Missouri's push to execute a man with an intellectual disability and allow for him to be subject to torture is not justice; it is cruel and unusual,” said Elyse Max, State Director of Missourians for Alternatives to the Death Penalty.

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