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Eighth Circuit Greenlights Arkansas Execution Protocol

by Jacob Barrett

Despite finding a “paucity of reliable scientific evidence concerning the effect of large doses of midazolam on humans,” the U.S. Court of Appeals for the Eighth Circuit didn’t halt its use in Arkansas’s three-drug execution protocol. To the contrary, it found the lack evidence of means that midazolam is fine to use. The decision, reached on August 16, 2022, affirmed a district court’s finding that the protocol does not violate the Eighth Amendment’s prohibition against “cruel and unusual punishment,” denying Plaintiffs’ request for a new trial.

Nine Arkansas prisoners on the state’s death row sued then-Gov. Asa Hutchinson (R) and the director of the state Department of Corrections (DOC) in March 2017. That was a month before Hutchinson had scheduled eight executions over 11 days, racing to beat the expiration date on the state’s supply of midazolam, one of the three drugs in its execution protocol. Four executions were carried out before the drugs expired. [See: PLN, Feb. 2018, p.24.]

Plaintiffs marshalled evidence to support their argument that the drug has a “ceiling effect” – a maximally effective dosage, “after which increasing the dosage does not produce greater sedative effect,” the Court later recalled. That means the drug may not prevent a prisoner from feeling the pain associated with the protocol’s two lethal drugs. The federal court for the Eastern District of Arkansas granted a preliminary injunction. But the Eighth Circuit vacated that, and the case proceeded to trial. See: McGehee v. Hutchinson, 854 F.3d 488 (8th Cir 2017).

After a bench trial, the district court agreed with Plaintiffs on May 31, 2020, holding that DOC’s refusal to let their attorneys into the viewing chamber for other executions violated their First Amendment right to access the courts. But otherwise the ruling went in favor of the governor and DOC.

“Even if there is general medical consensus,” the district court said, “that midazolam has a ceiling effect, there is no such consensus on the dose of midazolam at which a ceiling effect is exhibited.” The district court also rejected alternative execution methods that Plaintiffs offered, such as a firing squad, saying they failed to “show that a feasible implemented alternative would significantly reduce a risk of severe pain.”

On appeal at the Eighth Circuit, Plaintiffs borrowed from a challenge to Ohio’s execution protocol, which though ultimately not successful nevertheless convinced the federal court for the Southern District of Ohio that “the dose of midazolam intended to be used will not render [the prisoner] sufficiently unconscious as to prevent him from suffering the severe pain caused by injection of the paralytic drug or potassium chloride.” See: Henness (In re Ohio Execution Protocol Litig.), 2019 U.S. Dist. LEXIS 8200 (S.D. Ohio).

The Eighth Circuit, though, brushed that ruling aside, along with the evidence Plaintiffs presented. Finding in it “no scientific consensus,” along with a “paucity” of scientific evidence on large doses of midazolam, the Court said that “the district court did not clearly err in finding that the prisoners failed to demonstrate that Arkansas’ execution protocol is sure or very likely to cause severe pain.”

Plaintiffs had also moved for a new trial to weigh new evidence about “the availability of pentobarbital” as an alternative. The district court denied the motion, calling it ‘‘ cumulative and unlikely to produce a different result.” The Eighth Circuit found no error in that, either. Because the prisoners “failed to establish that the State’s existing method was sure or very likely to cause needless suffering,” the Court held, “the State was not required to consider alternative methods.”

Thus the district court’s judgment was affirmed. In a concurring opinion, Judge Jane L. Kelly acceded to the majority, but she called out its demand “that prisoners present overwhelming ‘scientific evidence’ and show a ‘scientific consensus’ about the effect of drug dosages” – a drug “that will never ethically be tested on humans” – calling that “an insurmountable task.”

Plaintiffs were represented by attorneys Kenton W. Freeman and Joseph Warden with Fish & Richardson in Washington, DC and Wilmington, DE, respectively, as well as Assistant Federal Public Defender John C. Williams of the Eastern District of Arkansas. See: Johnson v. Hutchinson, 44 F.4th 1116 (8th Cir. 2022).

Kelly, an Obama appointee, was taking a not-so-subtle swipe at U.S. Supreme Court Justice Samuel Alito, who wrote in his concurrence with Baze v. Rees, 533 U.S. 35 (2008), that “an inmate challenging a method of execution should point to a well-established scientific consensus.” At least Kelly is unwilling to play doctor, unlike some of her colleagues on the bench.

Arkansas has not carried out an execution in the five years since its Midazolam supply expired. But new Gov. Sarah Sanders (R) may change that. Signing HB 1456 into law on April 16, 2023, she extended the death penalty to drug dealers whose clients die from using anything the dealer sells them. The same day the governor also signed SB 495, curtailing parole and funding construction of new prison space to hold all those who won’t be released.

Additional sources: Balls and Strikes, Jurist, KATV, KTHV