by Lonnie Burton

On April 24, 2017, the Eighth Circuit U.S. Court of Appeals issued a series of rulings paving the way for the state of Arkansas to continue killing its prisoners via lethal injection at an alarming rate before the drugs used in lethal injections become unavailable. In this case, the Court denied a prisoner's claim he was too fat to be executed absent severe pain or serious harm in violation of the Eighth Amendment's prohibition on cruel and unusual punishment.

In April 2015, Marcel Wayne Williams joined other Arkansas prisoners challenging the method of execution--lethal injection--Arkansas uses to execute prisoners sentenced to death. Six days after the U.S. Supreme Court denied certiorari to the prisoners, on February 27, 2017, Arkansas Governor Asa Hutchinson signed an order ;cheduling the executions of Williams and seven other prisoners for one week in April 2017. The hurried nature of the executions was due to the fact that one of the drugs the state planned to use in the lethal injection protocol was about to become unavailable.

Williams and the other prisoners then filed another lawsuit, again alleging the method of execution violated their rights under the Eighth Amendment. A federal district court granted stays of execution, but those stays were lifted and the case dismissed by a panel of the Eighth Circuit on April 20, 2017. See: McGehee v. Hutchinson, No. 17-1804 (8th Cir. Apr. 2017).

Williams then filed this separate action, claiming that as applied to his medical condition--which includes morbid obesity, diabetes, and attendant neuropathy, hypertension and sleep apnea -- the lethal injection drug protocol created an unjustifiable risk that he would suffer severe pain. After hearing evidence on Williams' request for a preliminary injunction, a federal judge denied Williams' motion, and he appealed.

A panel of the Eighth Circuit affirmed the denial, concluding that Williams "unreasonably delayed bringing his as-applied challenge" by not raising the claim in the McGehee case. The court also held that on the merits of the case, Williams also loses.

"To succeed on the merits, Williams must Show that the execution method is sure or very likely to cause serious illness or needless suffering," the appellate court wrote, citing precedent. Despite a doctor's testimony that the execution protocol would "more likely maimthan kill Williams," the court found that testimony "equivocal" in light of the state-produced testimony that the execution would succeed despite Williams' health conditions.

The Eighth Circuit finally showed disfavor on what it called "piecemeal" litigation and dilatory tactics used by the Arkansas prisoners. That, in and of itself, the court said, was sufficient reason to deny a stay.

See: Williams v. Kelley, No. 17-1848 (8th Cir. Apr. 24, 2017).

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