On Tuesday, February 21, 2017, the Supreme Court granted cert in one case relevant to criminal defense practitioners. The Court also denied cert in lethal-injection cases from Alabama and Arkansas, over a dissent by Justice Sotomayor, joined by Justice Breyer.
(1) Cert grant:
Class v. United States (No. 16-424)
Issue: Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.
(2) Cert denial, over dissent:
Arthur v. Dunn, Commissioner, Alabama Department of Corrections, et al. (No. 16-602)
In Glossip v. Gross, 576 U.S. ___ (2015), the Court held that in order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Justice Sotomayor characterized Glossip as a “macabre challenge.”
Nevertheless, Justice Sotomayor concluded that the Petitioner, a prisoner on Alabama’s death row, met the challenge. Specifically, Petitioner amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he proposed an alternative – death by firing squad. The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Petitioner’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip. Because Glossip permits states to immunize their methods of execution – no matter how cruel or how unusual – from judicial review and thus permits state law to subvert the Federal Constitution, Justice Sotomayor would grant cert and reverse.