The Supreme Court on Monday rejected the appeal of a Missouri man who said his brain damage leaves him at risk of severe and painful seizures if he's put to death by lethal injection.
Ernest Johnson asked the lower courts to let him choose a firing squad or nitrogen gas as the means of execution, but his appeals were rejected by a federal appeals court, and the Supreme Court declined to take up the case.
The more liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — said the court should have reviewed his case. Writing for the three, Sotomayor said the U.S. 8th Circuit Court of Appeals, based in St. Louis, was too eager to dispose of the issue.
"We should not countenance the infliction of cruel and unusual punishment simply for the sake of expediency," she said.
Johnson was convicted of murdering three people in 1994 while robbing a convenience store.
His lawyers said extensive brain surgery following a tumor left him susceptible to severe seizures, which can be triggered by pentobarbital, the drug injected by the state of Missouri to carry out the death penalty. They at first asked that he be put to death by the use of nitrogen gas, but the courts blocked that request, saying the method was untested.
Johnson then proposed the state execute him by firing squad, a once-common method not used in Missouri since 1864. Justice Breyer said it "is today a highly unusual method of execution," adding that Johnson is asking that the federal courts "decide between an execution that is 'cruel' and one that is 'unusual,'" using the terms in the Constitution's Eighth Amendment.
The case, he said, "provides one more example of the special difficulties that the death penalty, as currently administered, creates for the just application of the law."
The state is now free to set a new date for Johnson's execution.