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February 9, 2011

Ninth Circuit rejects challenge to Arizona's lethal injection protocol

The Ninth Circuit today provides some proof that death row defendants do not always win in that court.  In Dickens v. Brewer, No. No. 09-16539 (9th Cir. Feb. 9, 2011) (available here), a unanimous panel rejects an attack on Arizona's lethal injection protocol through an opinion that begins this way:

Like most states that impose the death penalty, Arizona uses a three-drug lethal injection protocol.  Under the protocol, executions are carried out through the sequential administration of three chemicals — sodium thiopental, pancuronium bromide and potassium chloride.  The problems that can arise from the use of such a protocol are well known: if the sodium thiopental is not administered correctly, the inmate will be improperly anesthetized during the execution and will experience tremendous pain and suffering from the administration of the pancuronium bromide and potassium chloride. Arizona’s protocol contains a number of safeguards intended to ensure proper anesthetization.  In this appeal, we are asked to decide whether, despite these safeguards, Arizona’s protocol creates an unconstitutional risk that an inmate will be improperly anesthetized and thus experience extreme pain and suffering while dying.

The appellants — Gregory Dickens, Donald Edward Beaty, Charles M. Hedlund, Michael Emerson Correll, Robert Wayne Murray, Theodore Washington, and Todd Smith (referred to collectively as “Dickens”) — are death row inmates in Arizona.  In 2007, Dickens brought an action under 42 U.S.C. § 1983, asserting that Arizona’s execution protocol violates the Eighth Amendment because of the risk of improper anesthetization.  The district court granted summary judgment in favor of Arizona, holding that the protocol contains sufficient safeguards to protect against improper anesthetization and thus is constitutional under the standard set forth by the three-Justice plurality in Baze v. Rees, 553 U.S. 35 (2008) — not giving rise to a “substantial risk of serious harm” and not “sure or very likely to cause” serious pain and suffering.

On appeal, the heart of Dickens’s argument is not that the safeguards in Arizona’s protocol are inadequate.  Dickens does argue that Arizona should be required to adopt some additional safeguards.  His central assertion, however, is that evidence gathered during discovery raises issues of fact as to whether Arizona will follow the protocol and ensure that the existing safeguards are properly implemented. Because the protocol’s safeguards are adequate under the Baze standard and because there is no material issue of fact regarding compliance with the protocol, we affirm.

Extra style points go to any and all commentors who can include the title of a work by Charles Dickens in their reaction to this (seemingly sound) ruling.

February 9, 2011 at 06:06 PM | Permalink


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The execution chamber may be a Bleak House, but the litigation shouldn't take as long as Jarndyce v. Jarndyce.

That was really too easy.

Posted by: Kent Scheidegger | Feb 9, 2011 6:30:20 PM

"Charity begins in New Mexico and justice begins in Arizona."

Does anyone know if these inmates are now out of appeals?

Posted by: MikeinCT | Feb 9, 2011 7:06:28 PM

Damn you Kent, I was going to use bleak house.

How about we call it a tale of two courtrooms, given how California is stuck with a judge who just doesn't get Baze.

Posted by: Soronel Haetir | Feb 9, 2011 9:35:15 PM


Considering the Ninth Circuit's record on cert your klucking may be a little premature.

Posted by: anon | Feb 10, 2011 8:10:08 AM

Despite the Ninth Circuit's high reversal rate when it comes to The Battle of Life, I don't have any Great Expectations about this one being reversed.

And it looks like Our Mutual Friend Kent agrees.

Posted by: Res ipsa | Feb 10, 2011 8:43:21 AM

Anon, I don't quite get how my response to Doug's request for a Dickens reference constitutes "klucking" (or even clucking).

Also, can you cite the last time a Ninth Circuit decision against a prisoner was reversed by the Supreme Court on certiorari? I can't remember one offhand.

Posted by: Kent Scheidegger | Feb 10, 2011 1:25:31 PM

anon --

"Considering the Ninth Circuit's record on cert your klucking may be a little premature."

How much would you like to bet on that?

Posted by: Bill Otis | Feb 10, 2011 2:24:40 PM

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