Inmates' attorney 'disappointed' in court's ruling

The state has not executed an inmate since 2005 because of legal challenges and the difficulty of obtaining execution drugs.

A federal appeals court had held in Arthur's case that execution using a firing squad isn't a known and available alternative because it is not expressly permitted by Alabama law.

The opinion came in a dissent, along with Justice Stephen Breyer, from the high court's decision not to hear the case of Alabama's oldest inmate, Thomas Arthur, who's on death row for the 1982 murder of his girlfriend's husband.

Sotomayor said American society's acceptance of different methods of execution has changed over time, as science reveals the level of suffering involved.

Arthur proposed a firing squad. In 2015, they upheld Oklahoma's lethal injection process in a 5-4 ruling even as Breyer and fellow liberal justice Ruth Bader Ginsburg raised concerns about whether capital punishment violated the Eighth Amendment.

"What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet", she wrote.

The justices on Tuesday turned down an appeal from inmate Tommy Arthur. Having met the challenge set forth in Glossip, Arthur deserves the opportunity to have his claim fairly reviewed in court.

Nine inmates asked justices to review an Arkansas Supreme Court decision upholding a law that keeps secret the source of lethal injection drugs.

It is a matter of permitting a death row inmate to make the showing Glossip requires in order to prove that the Constitution demands something less cruel and less unusual than what the State has offered.

"Under this view", Sotomayor wrote, "even if a prisoner can prove that the state plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a state has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method". The protocol, which uses three drugs, was rejected as the sedative midazolam was deemed insufficiently humane.

Sotomayor wrote, "Execution absent an adequate sedative thus produces a nightmarish death: The condemned prisoner is conscious but entirely paralyzed, unable to move or scream his agony, as he suffers what may well be the chemical equivalent of being burned at the stake".

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