Asking for a Different Kind of Death

With less than a month until his execution date, 74-year-old Thomas Arthur is struggling to convince the courts that there are better ways to kill him. The state of Alabama, where Arthur has been on death row for more than three decades, is planning to execute him Nov. 3 using a lethal injection procedure he argues would inadequately sedate him and induce a heart attack. To challenge its use, which has gone awry in the past, Arthur and other death row inmates have been asked by courts to propose practical alternative execution methods—a requirement that medical experts on Tuesday argued poses an impossible burden.

The strange request for inmates to prove that there are better ways to execute them stems from a Supreme Court ruling last year in Glossip v. Gross. The case examined whether or not midazolam, a muscle relaxant and sedative that has been tied to botched executions in four states, sedates people to the point that they are unable to feel the intensely painful administration of the next two execution drugs. The court’s ruling, which found the use of midazolam was not cruel and unusual, effectively requires inmates and their lawyers to prove there are other options—a task that often means calling on the testimony of medical experts.

“Demonstrating feasible alternatives without physician testimony is very difficult and puts the prisoner at a disadvantage in pressing their challenge, at least in so far as the state is dead set on medical methods of execution,” said Glenn Cohen, a professor at Harvard Law School who focuses on the intersection of ethics, medicine, and the law.

Cohen, who signed onto the brief filed in support of Arthur on Tuesday, told TakePart that requiring inmates to involve physicians in suggesting alternative execution methods “would cause them to violate the [ethical rules of the] American Medical Association and other codes.”

Arthur’s initial appeal suggested the use of pentobarbital, which is typically used to euthanize animals, or a firing squad. Both options, his lawyers argued, carry less risk of an extended and painful death. The U.S. District Court for the Middle District of Alabama denied those options because Alabama law doesn’t authorize the use of firing squads in executions and said Arthur had failed to provide “specific, detailed, and concrete alternatives”—a request that would likely require the testimony of a medical expert.

Along with suggesting pentobarbital and the firing squad, Arthur’s appeal argues that the use of midazolam would cause him to have a heart attack because of a heart condition and would violate his Eighth Amendment rights by causing significant pain and suffering. But the district court dismissed his case without ever addressing those claims.

“Tommy Arthur could go to his execution without merits of his case ever being evaluated,” Megan McCracken, a staff attorney with the Death Penalty Clinic at the University of California, Berkeley, told TakePart.

According to McCracken, lower courts are routinely failing to address the question of whether midazolam’s use is cruel or unusual, instead focusing entirely on shutting down alternative execution methods.

“Courts are kicking lethal injection petitioners out of court, saying you haven’t proved that this alternative is available and feasible, to avoid analyzing the existing procedure,” said McCracken. “[Arthur’s] case is a perfect illustration of this.”

The Supreme Court’s ruling on Glossip paved the way for these kinds of court battles. Arthur’s case has been appealed to the 11th Circuit Court of Appeals. If it sidesteps the issue of midazolam’s constitutionality and concentrates on execution methods, the issue could land before the Supreme Court yet again, compelling lower courts to reckon with the Eighth Amendment.