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March 7, 2010

A new federal statutory attack on Missouri's lethal injection protocol

Over at Capital Defense Weekly is this notable new post headlined "Under the radar lethal injection challenge appears to be heading to trial." Here is the substance:

In news of the next possible wave of challenges to lethal injection, Ringo v. Lombardi, Case No. 09-4095-CV-C-NKL, a federal district court judge in the Western District of Missouri on Tuesday  denied a motion to dismiss in a challenge to that state’s lethal injection statute.  The suit uses a new avenue to challenge lethal injection, “a declaratory judgment that Missouri’s lethal injection protocol violates the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 801, et seq. (“FDCA”), as well as the Controlled Substances Act, 21 U.S.C. §§ 301, et seq. (“CSA”).”   Mark this one as one to watch.

An astute reader who noted this blog post for me added this pitch-perfect comment: "Like the Baze-type litigation, [this statutory attack] could turn into a new avenue for challenging the mechanics of lethal injection.  It could also hasten states to adopt of a one-drug protocol."

March 7, 2010 at 11:36 AM | Permalink


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It's not enforceable by private parties. Ergo, the case should have been dismissed--else it's an advisory opinion.

Posted by: federalist | Mar 7, 2010 12:43:24 PM

Student: This new statutory challenge seems to be a twist on an old challenge under the APA that the Supreme Court has already rejected. See Chaney v. Heckler, 470 U.S. 821 (1985).

Posted by: YF | Mar 7, 2010 1:42:51 PM

It would be more intellectually honest for abolitionists to just make a straight-forward case against the DP than to try to stop the will of the people with gimmick litigation like this.

Posted by: Bill Otis | Mar 7, 2010 3:43:35 PM

I think the judge here merits some criticism. The DJ maneuver is an end-around the problem of a lack of private enforceability.

Posted by: federalist | Mar 7, 2010 3:55:14 PM

Would this keep the Missouri Supreme Court from setting execution dates for Nicklasson and Franklin?

Posted by: MikeinCT | Mar 7, 2010 8:30:44 PM

MikeinCT --

The denial of a motion to dismiss a civil case in federal district court does not prevent a state court, considering different litigants in a state criminal case, from setting an execution date for those litigants. Indeed it is not clear to me that an adverse ruling ON THE MERITS of the federal case would per se have such a preclusive effect, but a mere denial of the motion to dismiss certainly does not.

Posted by: Bill Otis | Mar 8, 2010 2:10:29 AM

federalist & yf:

The case seeks a declaratory judgment. The dj examines at some length the points you both raise and found the case not precluded under Chaney v. Heckler.

Posted by: withheld | Mar 8, 2010 9:31:44 AM

withheld, my point has less to do with Chaney and more to do with the issues regarding advisory opinions. The bottom line is that if a statute is not enforceable by a plaintiff, then there's really not much for the court to do. A DJ is simply an end-run around that problem.

Posted by: federalist | Mar 8, 2010 10:28:46 AM

I wonder on what basis your reader asserts that this kind of ruling will "hasten states to adopt of a one-drug protocol." Indeed, it would seem that the opposite effect is most likely. For instance, consider Ohio: the lethal injection policy is considered subject solely to the Director of DRC's edict. This means it can be changed at the stroke of an administrative pen. Even if a decent argument exists that this situation is a violation of the state's APA (which might arguably be the case), lethal injection plaintiffs gain nothing by suing on such claims. The only effect would be for the Director to retrench in the (old) three-drug policy, rather than being willing to make the change to a one-drug policy. In this instance, there is nothing to be gained by making a change from three-drug to one-drug MORE difficult, which would be the result of an APA challenge. I will concede, however, that this may be an Ohio-specific factual context, colored by the fact that stays of execution in Ohio currently are not going to materialize absent another foul-up in an execution.

Posted by: ALB | Mar 8, 2010 12:20:46 PM

To BillOtis,
I understand your point but the state supreme court put off setting execution dates last year because of another short-list killer's lethal injection challenge. I am wondering if they might make the same decision here to avoid having executions stayed by the circuit court.

Posted by: MikeinCT | Mar 8, 2010 1:47:56 PM

MikeinCT --

So far as I know (I am not licensed in Missouri), the state supreme court can choose to defer the execution dates because of the pending federal challenge, but nothing in the law requires it to do so.

It's unlikely that there would be a deferral here, because (1) to grant one would effectively allow convicts to delay execution indefinitley simple by FILING a motion, and (2) the federal motion, unlike Baze-related motions (which at least posed a credible question) is a pretty transparent gimmick.

Posted by: Bill Otis | Mar 8, 2010 2:59:24 PM

To Bill Otis,
Thanks for your help, hopefully the Missouri Supreme Court and the Circuit are as logical as you suggest.

Posted by: MikeinCT | Mar 9, 2010 6:32:25 PM

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