« "Judicial Sentencing Error and the Constitution" | Main | "Black Studies and the Fight Against Mass Incarceration" »

November 3, 2016

Death row defendants come up just short in big circuit panel rulings about lethal injection protocols

Though I am saddened that the lovable baseball club from Cleveland came up just short against a lovable baseball club from Chicago very early this morning, there are some death row defendants and lawyers who I suspect are much more troubled by a much more serious legal matter in which their arguments to federal circuit panels came up just short yesterday.   Specifically, two court panels, one in the Sixth Circuit and one in the Eleventh Circuit, yesterday handed down two split 2-1 rulings against death row defendants in Ohio and Alabama.  Here are links to the rulingsand the start of the majority opinions:

Phillips v. DeWine, No. 15-3238 (6th Cir. Nov. 2, 2016) (available here):

In this appeal, a group of inmates sentenced to death in Ohio challenge the constitutionality of the State’s newly enacted statutory scheme concerning the confidentiality of information related to lethal injection. The district court dismissed some of their claims for a lack of standing and the remainder for failure to state a claim. For the reasons stated below, we AFFIRM.

Arthur v. Alabama DOC, No. 16-15549 (11th Cir. Nov. 2, 2016) (available here):

It has been 34 years since Thomas Arthur brutally murdered Troy Wicker. During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to death for Wicker’s murder.  After his third death sentence in 1992, Arthur for the next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction appeals in both state and federal courts.

In addition, starting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution.  This is Arthur’s third such § 1983 case, and this current § 1983 case was filed in 2011.  For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief.  Those orders are the focus of the instant appeal.

After thorough review, we conclude substantial evidence supported the district court’s fact findings and, thus, Arthur has shown no clear error in them.  Further, Arthur has shown no error in the district court’s conclusions of law, inter alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital is a feasible, readily implemented, and available drug to the Alabama Department of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness assessment protocol does not violate the Eighth Amendment or the Equal Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.

November 3, 2016 at 09:03 AM | Permalink


Critically the courts have used the law to frustrate an important democratic principle:
"Delivery of true democracy can only be achieved with public participation, and best tools for increase in public participation in governance depend upon transparency and accountability." Both in the political sphere and in the judicial sphere (and I must say there appears to be an increasing convergence of the two in the US) there is a great reluctance to expose to public scrutiny, and even to Federal agency scrutiny, facts that if brought to light might cause some distaste and dissent for practices that have more in common with an "ends justifies the means" approach to governance. It is to the shame of the courts that they have colluded with this. The law should be interpreted and used to seek the decision which most promotes transparent justice. Once again the rigid preference for the word of the law, which itself has no context, means that justice is the loser.

Posted by: peter | Nov 3, 2016 9:59:57 AM

The dissent in Phillips, et al. v. DeWine, et al. explains how the plaintiffs having standing & how the law in question impinges on free speech.

I think that claim is stronger than the right to access claim (at least under current precedents). In that respect, I think the strongest claim in these cases concern defendants who raise due process concerns for full information to be able to examine the procedures that will be used to kill them. But, either as a matter of state law or good policy, peter's concerns do hold true.

The second opinion is over 100 pages long. So, didn't really go into the weeds there. The dissent is only 30 pages of the 140 available there. It focuses on a challenge involving the firing squad as an alternative. Sotomayor in her Glossip dissent suggested some rather that than lethal injection & a few experts agree (some raise nitrogen gas as an ideal option ... we are sure this time!).

Posted by: Joe | Nov 3, 2016 10:54:01 AM


Posted by: John | Nov 3, 2016 6:48:51 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB