Arkansas Death Penalty Stay Revoked

I recommend you read the Eighth Circuit’s full opinion here: http://media.ca8.uscourts.gov/opndir/17/04/171804P.pdf

This is the opinion in the Eighth Circuit case involving the use of drugs for execution protocols. It is instructive because unlike other circuits, the 8th Circuit hates it when judges try to legislate from the bench under the rubric of making complex scientific findings of lack of evidence.

For the people who won’t read the opinion, here’s the short story. Back in 2015 Arkansas changed its method of execution. From the opinion:

The State’s current lethal injection protocol calls for injection of 500 milligrams of midazolam (Versed), followed by 100 milligrams of vecuronium bromide, followed by 240 milliequivalents of potassium chloride. If the prisoner remains conscious after the injection of midazolam, however, the executioner will inject another 500 milligrams of midazolam before injecting vecuronium bromide.

Now, this may not sound like much Versed, until you read the dosing information on Versed which states “No more than 2.5 mg should be given over a period of at least 2 minutes.” So, the state is giving the prisoner 200 times the recommended amount of versed that induces anesthesia.  The inmates claim it might not work, but their evidence did not support this.

How did the Court reach the decision to overturn the stay?  By applying a novel concept: the Constitution as written and interpreted by the Supreme Court.

So, in 2015 when the prisoners method of execution changed they sued in state court making various federal constitutional claims and also making claims under state law. When the state removed the action to federal court, to get federal judges, to determine federal law, the inmates dismissed their petition.   They then later refiled in state court with only state constitutional claims. Those claims were dismissed and exhausted in February of 2017 and the state set an execution schedule.

Then, at the literal eleventh hour, the prisoners sought a stay from a federal district court judge. Judge Kristine G. Baker is an Obama appointee, and obviously steeped in the liberal tradition of being overly generous to people who break the law.  Why judges have a fondness for murderers is hard to fathom.  In a 100 page opinion she found “there is a significant possibility that plaintiffs will succeed in showing that the use of midazolam in the ADC’s current lethal injection protocol qualifies as an objectively intolerable risk that plaintiffs will suffer severe pain,” and granted the stay.  Keep the italicized language in mind.  It’s important.

The Eighth Circuit reversed this madness finding first that when you wait until the 11th hour, you don’t get a stay.  It said the court should have applied the case law presumption against unnecessary delay in bringing a constitutional claim.  Then the appeals court looked at the actual risks of Versed not working in this situation and said it did not meet the test from case law. That test required the prisoners must show that the method of execution is “sure or very likely to cause serious illness and needless suffering.” After reviewing evidence that was, at best equivocal on the subject, the Eighth Circuit said:

The district court’s factual findings would not support a conclusion that the prisoners have a likelihood of success in showing that the execution protocol is sure or very likely to cause severe pain. … There is no express finding of fact that the prisoners are likely to prove that a 500-milligram injection of midazolam will fail to anesthetize the prisoners during the execution or that use of the lethal-injection protocol is sure or very likely to cause severe pain. Instead, the district court found that “there appears at least a possibility that if the midazolam does not operate as defendants predict . . ., the inmate may regain some level of consciousness during the process before the second and third drugs are administered.” … The equivocal evidence recited by the district court falls short of demonstrating a significant possibility that the prisoners will show that the Arkansas protocol is “sure or very likely” to cause severe pain and needless suffering.

The long and short of the Eighth Circuit’s opinion is simply that the constitution only forbids cruel and unusual punishment, and case law says that means you have to show that it is sure or very likely to cause severe pain. Not, as a third grader would say “a big ouchie!” You have to show that it would produce severe pain. The inmates did not show that, and they lost.

While I am not a fan of the 8th Circuit generally, they got this one right. They applied the Constitution, and they reversed a flawed and dangerous opinion that put the rights of convicted felons and murderers above the rights of society to be free of them.

Good job judges of the Eighth Circuit.