Eleventh Circuit Rejects Condemned Prisoner’s Challenge to Lethal Injection Drug

Loaded on June 30, 2017 by Christopher Zoukis published in Prison Legal News July, 2017, page 60

Filed under: Medication, Death Penalty. Location: Alabama.

by Christopher Zoukis

On November 2, 2016, the Eleventh Circuit upheld a district court’s denial of death row prisoner Thomas D. Arthur’s challenge to the use of the drug midazolam in the lethal injection protocol used by the State of Alabama.

Arthur challenged midazolam as the first in a series of three drugs administered during executions. Midazolam took the place of pentobarbital as the initial drug, used to induce unconsciousness, when pentobarbital became unavailable due to restrictions imposed by the manufacturer. Arthur alleged the use of midazolam would violate the Eighth Amendment’s prohibition on cruel and unusual punishment because it created “a substantial risk of serious harm ... there is a high likelihood that midazolam will fail to render [him] insensate from the excruciatingly painful and agonizing effects of the second and third drugs.”

Applying recently-decided U.S. Supreme Court law, the Eleventh Circuit denied both Arthur’s facial challenge to the drug and his “as applied” challenge. In Glossip v. Gross, 135 S.Ct. 2726 (2015) [PLN, Feb. 2016, p.30], the Supreme Court held that in order to successfully challenge a method of execution, a prisoner must plead and prove: 1) that the proposed method presents a risk that is ‘“sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers,’” and 2) that there is “an alternative [method of execution] that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”

Despite presenting evidence, including expert testimony, that midazolam would cause a painful heart attack prior to losing consciousness, the Court of Appeals found the drug was not certain to cause needless suffering. The Court noted that midazolam had been “repeatedly and successfully used without problems” in other executions – though it has been linked to botched executions, too. [See: PLN, Sept. 2016, p.52; Jan. 2016, p.50]. Given the utter impossibility of knowing whether prisoners executed using midazolam suffered (since they all died), it seems the bar to establishing the cruelty of a particular execution method is virtually insurmountable.

The Eleventh Circuit also found there was no available alternative method of execution in Alabama that would reduce the risk of severe pain. Arthur’s expert testified that a controlled injection of compound pentobarbital would reduce the risk of heart attack and pain, but the appellate court determined that such a compound was unavailable to the Alabama Department of Corrections. Further, it rejected Arthur’s suggestion that a firing squad be used, as firing squads are not an approved means of execution in Alabama.

Dissenting from the majority opinion, Judge Charles R. Wilson noted that the decision “nullifie[d] countless prisoners’ right to a humane execution,” and argued that Arthur should have been allowed to select the firing squad. Judge Wilson’s logic begs the question: does the U.S. Constitution’s prohibition on cruel and unusual punishment mean that condemned prisoners are entitled to a “humane” execution? And how, exactly, does the state humanely kill someone? See: Arthur v. Commissioner, Alabama Dep’t of Corrections, 840 F.3d 1268 (11th Cir. 2016), cert. denied.

The Supreme Court declined to grant a stay of execution, although Justice Sonia Sotomayor wrote: “Alabama plans to execute Thomas Arthur ... using a three-drug lethal-injection protocol that uses midazolam as a sedative. I continue to doubt whether midazolam is capable of rendering prisoners insensate to the excruciating pain of lethal injection and thus whether midazolam may be constitutionally used in lethal injection protocols.”

Thomas was put to death on May 26, 2017. He was 75 years old.