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March 22, 2012

Split Eleventh Circuit panel keeps Alabama lethal injection challenge alive (for now)

As reported in this AP article, the Eleventh Circuit "has revived an Alabama death row inmate's challenge of his state's new three-drug lethal injection protocol."  The per curiam opinion from the Eleventh Circuit panel (available here) ends this way:

To survive a motion to dismiss, Arthur has to plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 554, 570 (2007). Here, Arthur has alleged enough facts to constitute a plausible Equal Protection claim because he alleges that Alabama has substantially deviated from its execution protocol in a manner that significantly reduces inmate safeguards.  He alleges that Alabama’s lethal injection protocol requires pinching the inmate as the last consciousness check after the initial injection of pentobarbital and prior to injecting the final two lethal drugs.  The consciousness check is performed to reduce or eliminate the risk of excruciating pain that would follow the injection of the second and third drugs in the lethal injection protocol. Arthur alleges that based on eyewitness testimony, the State of Alabama failed to perform the pinch test during the 2011 execution of Eddie Powell, even though Powell’s eyes remained open, his head turned from side to side, and he clenched his jaws.

Arthur alleges that Alabama’s reduction in safeguards burdens his right to be free from cruel and unusual punishment. “[S]ubjecting individuals to a risk of future harm — not simply actually inflicting pain — can qualify as cruel and unusual punishment.” Baze v. Rees, 553 U.S. 35, 49 (2008). Significant deviations from a protocol that protects inmates from cruel and unusual punishment can violate the Eighth Amendment. Indeed, the Sixth Circuit recently affirmed an order to stay an execution because four core deviations from Ohio’s lethal injection protocol, including foregoing mandated vein assessments, burdened the Equal Protection rights of inmates in Ohio. See In re Ohio Execution Protocol Litigation, No. 12–3035 (6th Cir. Jan. 13, 2012), affirming, Cooey v. Kasich, 801 F. Supp. 2d 623, 643-644 (S.D. Ohio 2011) (“We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.”).

Here, Arthur alleges that Alabama failed to perform a required consciousness check in a recent execution, a significant deviation from its execution protocol. In light of Arthur’s other allegations regarding the veil of secrecy that surrounds Alabama’s execution protocol, it is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution.

Accordingly, accepting Arthur’s allegations as we must at the motion to dismiss stage, we conclude that the district court erred in dismissing Arthur’s Equal Protection claim at this stage of the proceedings and remand for further factual development.

A very lengthy dissent by Judge Hull and Alabama's likely eagerness to go forward with an execution scheduled for next week leads me to believe that this matter may be considered in some way by the full Eleventh Circuit or perhaps even the Supreme Court before long.  In other words, this is a story to keep watching.

March 22, 2012 at 08:46 AM | Permalink


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I see Judge Barkett is in the majority. No surprises there. Here's the new litigation strategy: flyspeck an execution, pick an insignificant deviation and hope you get federal judges like Barkett or Frost.

Federal courts need to be entirely out of the execution business, and after yesterday, out of habeas as well.

Posted by: federalist | Mar 22, 2012 9:27:55 AM

federalist --

I disagree with you about the new strategy. Claiming your lawyer was a drunk/dope/crook is the new startegy.

Oh, wait, that's the old strategy.

Never mind.

Posted by: Bill Otis | Mar 22, 2012 9:59:21 AM


At least here the condemned actually did plead an item, that if true, would actually pose a risk that Baze recognizes. As far as I can tell that was not the case at all in Ohio.

Posted by: ee | Mar 22, 2012 11:40:53 AM

Sigh, the message from 'e' was mine, accidentally typed in the name field without noticing.

Posted by: Soronel Haetir | Mar 22, 2012 11:42:58 AM


agreed considering the judges.Hasn't Wilson always sided with the prisoner on 1983 claims? The full 11th Circuit should vacate the panel's opinion.

Posted by: DaveP | Mar 22, 2012 2:52:48 PM

Just what part of “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States" do these liberal Judges NOT understand. This doesn't survive a SCOTUS review. Many states use a one drug process and the SCOTUS has already ruled on its application. Only a problem at the state level would be reviewable and that has already been foreclosed. Sorry anti-DP libs. Just more time for lawyers to bill.

Posted by: DeanO | Mar 22, 2012 7:42:45 PM

"No surprises here."

Lawyers try to make every possible argument to win it for a client, including weaker ones. Lawyers hope to get judges who are sympathetic, if possible "judge shopping" to do so. Per the original "Federalist," federal judges practice judicial review respecting habeas, alleged wrongful denial of life etc. Some selectively find all of this normal activity a reason to berate judges.

Curious what other parts of the Constitution federal judges shouldn't concern themselves with. Did Hamilton or Madison list them somewhere?

The problem alleged here is not simply the "use" of a one drug process and the SC in Baze did not across the board legitimatize every type of lethal injection. A "substantial risk of harm" could violate the 8A. The ruling here also raised an equal protection claim.

Posted by: Joe | Mar 23, 2012 10:35:51 PM

"Per the original 'Federalist,' federal judges practice judicial review respecting habeas, alleged wrongful denial of life etc."

Joe, do you mean to say that the original Federalist says that habeas corpus was available as a postconviction remedy, to delay or prevent execution of a criminal judgment or overturn a conviction after a person has been convicted in a court of general jurisdiction (which is what the writ is most commonly used for today).

I would be very interested in knowing where the Federalist says that, or for that matter a citation to a single case in England or America prior to 1789 saying that.

Posted by: Kent Scheidegger | Nov 22, 2013 1:09:42 PM

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