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Challenge to Three-drug Execution Protocol Revived by Eleventh Circuit

by David M. Reutter

On September 1, 2017, the Eleventh Circuit Court of Appeals revived civil rights claims brought by four Alabama death row prisoners. Their lawsuits challenged the state’s current three-drug execution protocol, arguing that the use of midazolam as the first drug would subject them to “intolerable pain” when the next two drugs, pancuronium bromide and potassium chloride, are injected.

Before the appellate court was a consolidated appeal from the four prisoners, who alleged violations of the Eighth Amendment. Their complaints were drafted by John A. Palombi, Assistant Federal Defender for the Middle District of Alabama. The district court had ruled in favor of the Alabama Department of Corrections (ADOC) and various prison officials, concluding the prisoners had failed to present probative evidence creating “a genuine dispute of material fact as to [the existence of a feasible and implementable] alternative method of execution.”

The Eleventh Circuit disagreed, finding issues of material fact existed. It also found the district court had improperly weighed the creditability of the evidence and testimony.

When Alabama introduced lethal injection as its means of execution, it adopted the three-drug protocol used by “virtually every other state that executes its death row inmates by lethal injection.” That protocol entailed the use of sodium thiopental, pancuronium bromide and potassium chloride.

As repeatedly reported in PLN, states have had difficulty obtaining execution drugs due to manufacturer objections to their drugs being used in lethal injections. Most European countries prohibit the export of such drugs to the United States; when the last manufacturer of sodium thiopental closed shop in the U.S. and moved its operations overseas, states were left with a void and turned to other options. [See, e.g.: PLN, Feb. 2018, p.24; Nov. 2017, p.50; June 2017, p.14].

On April 26, 2011, the ADOC substituted pentobarbital, “a short-acting barbiturate” sedative, for sodium thiopental. Then, on September 10, 2014, prison officials substituted midazolam for pentobarbital. In their lawsuits, the prisoners cited botched executions in Ohio, Oklahoma and Arizona with the use of midazolam as the first drug.

To prevail on an Eighth Amendment challenge to an execution protocol, it must be shown that the challenged method presents “a ‘substantial risk of serious harm,’” and the prisoner must “identify an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”

The Eleventh Circuit found the district court had passed over the first prong and jumped to the second one. Thus, it could not determine the risk of harm, if any, that midazolam poses to prisoners during executions. On remand, “the District Court must first determine what risk the current three-drug protocol – with midazolam as the first drug – presents before considering the adequacy of Appellant’s proposed alternatives.”

Further, how the district court considered the second prong was found to be erroneous. It had based its findings of fact on the trial held in Arthur v. Thomas, U.S.D.C. (M.D. Ala.), Case No. 2:1-cv-00438. That was error because the record did not indicate, nor did the district court find or imply, that the prisoners had “consented to be bound by Arthur’s resolution, had any legal relationship with Arthur, were represented by him in any capacity, or had any control over his claim.” Arthur challenged Alabama’s initial change from sodium thiopental to pentobarbital in its execution protocol.

In this case, the prisoners argued for a one-drug protocol of pentobarbital or the use of sodium thiopental. The district court resolved those issues by relying “on its Arthur findings as if it were involving the doctrines of issue preclusion or judicial notice and, at summary judgment, weighed those findings against the evidence presented in the case before it,” the Court of Appeals stated.

The prisoners also argued for a one-drug protocol using midazolam. Once again, the district court assessed the creditability of witnesses and weighed the testimony “against contrary evidence the record presented, including testimony by the ADOC’s expert, Dr. Daniel Buffington.” Buffington had testified that 500mg of midazolam was sufficient to cause death on its own.

The Eleventh Circuit also noted that the district court overlooked the ADOC’s offer to consent to a judgment that “suspends the current lethal-injection protocol” and to utilize midazolam as the sole drug for executions. As midazolam was available and the parties agreed its use could be constitutional, the district court’s findings were “at odds” with the evidence, which required its summary judgment order to be vacated and the case remanded. See: Grayson v. Warden, 869 F.3d 1204 (11th Cir. 2017).

Perhaps in an effort to circumvent issues related to the state’s use of differing types of execution drugs, on March 20, 2018, Alabama legislators approved the use of nitrogen gas – an untested method – to put prisoners to death.

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Related legal case

Grayson v. Warden