Year of the Needle (year end review pt.2)

December 27, 2006

Year of the Needle (year end review pt.2)

[Below is the second part of the year end roundup. A third part on the year in caselaw will be posted this weekend. The entire year in review will go out with this weekend’s email edition. For now, however, find the draft copy on the year in lethal injection below. - k]

The Year of the Needle (draft)

Few people could have suspected that when the Eleventh Circuit denied a stay to Clarence Hill in January 2006 that a firestorm would soon engulf the manner in which executions are carried out. The United States Supreme Court stayed Hill’s execution date. The ultimate question before the Court in Hill was not lethal injection — a three-drug cocktail that anesthetizes, paralyzes the lungs and then causes a massive heart attack – but rather how a challenge to that method of execution is best brought in the federal courts. The resulting year in lethal injection have been tracked regularly here at our blog & Boalt Hall’s DP Project have been tracking the developments all year.

The Court’s ultimate decision in Hill was well summarized by the Habeas Assistance Project:

On June 12, 2006, the Supreme Court unanimously held that Clarence Hill was entitled to challenge the constitutionality of Florida’s lethal injection practice in a civil rights law suit under 42 U.S.C. section 1983, rather than through a habeas corpus proceeding. Hill v. McDonough. This was because Hill’s action, if successful, did not necessarily prevent the State from executing him by lethal injection. Instead, Florida would only be prevented from using a lethal injection procedure that causes a foreseeable risk of gratuitous and unnecessary pain. The Court rejected respondent’s argument that in order to challenge an aspect of an execution procedure in a civil rights law suit, the plaintiff must be required to identify an alternative, authorized method a execution.

The dramatic tension that marked the year in lethal injection perhaps was best offered up by very odd juxtaposition on the same Wednesday night in September. The same Clarence Hill whose botched opinion by the Eleventh Circuit that started off the year of the needle was eventually executed by Florida. His death came hours after the U.S. Supreme Court rejected his final appeal on a 5-4 vote. The same day the Texas Court of Criminal Appeals in Ex parte John Alba ordered in an unpublished memorandum opinion / order, the Texas Court of Criminal Appeals orders expanded briefing on lethal injection procedure in Texas.

Then there was the end of the year spate of lethal injection decisions & reprieves. The flurry of activity started in Kentucky with Franklin Circuit Judge Sam McNamara holding that the state’s administrative procedures act applied to the the lethal injection protocol. Vernon Evans would win an indefinite stay when the Maryland Court of Appeals concluded that the regulations governing lethal injection were no different than any other regulation and needed to comply with the state’s administrative law rules. Michael Morales likewise was indefinitely stayed, in his case owing to problems with how California administers its lethal injection protocol; a protocols whose viability wasn’t helped when it was learned that following a putatively botched execution guards responded curtly “shit does happen.” Finally there was Florida where, following the horrible botched execution of Angel Diaz, Governor Jeb Bush stayed that state’s death machine.

The Federal Courts of Appeals

Perhaps the least noted lethal injection story, however, was a stay in Missouri. Justice Alito’s first vote on the Supreme Court appears to have involved “Show Me” state lethal injection litigation. The litigation over the fate of Michael Taylor is ongoing. The district court enjoined Taylor execution save for a protocol it crafted as a remedy. The State appealed. While the appeal was pending Missouri revised its protocol for lethal injections. In the most recent move an Eight Circuit panel held in Michael Taylor v. Crawford that a remand was now needed to determine the constitutionality of the new protocol. Briefs available here. The practical impact of the Taylor litigation appears to be that, save for volunteers & Nebraska’s electric chair, the death chambers in the Eight Circuit – Arkansas, Missouri, & South Dakota – are shuttered for now. The details and breadth of the Taylor related stays have not been worked through, at least not in the public press.

The Eighth Circuit’s jurisprudence details may not have been worked out but the ground rules in the Sixth Circuit defy explanation. Panels of that Court, without much rationale, have let some executions occur & stayed others. As the judge sorting out the lethal injection mess in Ohio has noted:

Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it. In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate decisions that have arisen from this litigation.

The other Courts of Appeals are split in to two camps, not having substantively addressed the issue or yet to find the appropriate case to address the merits. Of the circuits that have circumvented the issue of lethal injection three have done so by holding that every claim, or virtually every claim, hae been brought too late – the Fourth, Fifth & Eleventh Circuits, the so-called heart of the death belt.

In addition to the courts of appeal U.S. District Court Judge Ellen Huvelle issued a preliminary injunction staying the three federal executions that had been scheduled for May (of James H. Roane Jr., Richard Tipton and Cory Johnson), apparently, out of concerns over lethal injection.

The States

As previously mentioned, the year end with a bang with courtroom shoot-outs in Maryland and California. With that stated, lethal injection litigation impacted more courts than just those two states & more than just the Sixth & Eighth Circuits.

In California, following the on again, off again execution of Michael Morales, California’s death chamber is again off. First stayed in February the California death chamber appeared to be cranking up when they found a doctor to address some concerns about but at the last moment before the execution of Morales two anesthesiologists retained by DoC refused to take part, saying that it was “medically unethical.” By the of the year the Judge Fogel the federal district court judge sorting out the lethal injection mess in California issued a “memorandum of intended decision ” concluding that California’s “implementation of lethal injection is broken, but it can be fixed.”

Gov. Jeb Bush in Florida suspended all executions in December following a horribly botched lethal injection where the the execution team simply blew it. As the New York Times noted:

Governor Bush’s decision came two days after an executioner failed to properly inject lethal chemical into an inmate. Officials said the needle administering the chemicals punctured the vein and then delivered the dose into the inmate’s soft tissue, rather than the vein itself. A second dose was required, and the inmate died 34 minutes after the initial injection.

As a National Coalition to Abolish the Death Penalty spokesman put it:, “Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether its electrocution or lethal injection.”

In Kentucky that state’s supreme court, while conceding that the chemicals used to execute death row inmates in Kentucky might cause needless pain, it heldthat using them did not violate the Constitution’s prohibition on cruel and unusual punishment.“ Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain,” Justice Donald C. Wintersheimer wrote for the unanimous court. “The prohibition is against cruel and unusual punishment and does not require a complete absence of pain.” Days thereafter, Franklin Circuit Judge Sam McNamara held, like the Maryland Court of Appeals would a few a days later, that lethal injection is like any other administrative regulation and subject to th administrative procedures act.

Maryland’s highest court made the Old Line State the third death chamber at least temporarily shuttered by an effective state court litigation strategy (Kentucky & New Jersey being the other two) under a state’s administrative procedures act challenging lethal injection regulations. The opinion in Vernon Evans v. State of Maryland holds that state law requires prison officials to submit their lethal injection procedures to public.

As noted above, Missouri’s death chamber is shut for now as it works out its lethal injection protocol. Curiously, the state’s Department of Corrections attempted to have a anesthesiologist participate in the execution process to ensure that its executions were within the parameters set down for it by the Taylor Court. That position drew a harsh rebuke from Am. Soc. of Anesthesiologists. The ASA’s response was quick and sharp: “The legal system has painted itself into this corner and it is not our obligation to get it out,” seemingly ending that option for corrections officials trying to figure out a way to carry out their obligations in a constitutonally permissible and humane manner.

In New Jersey the state’s lethal injection protocol, despite hearings on the subject, was never finalized & proposed regulations appeared to lapse after that state’s legislature voted to impose a moratorium on executions.

In North Carolina, the Fourth Circuit in Brown v. Beck refused to halt the scheduled execution of Willie Brown. Just days before the execution corrections officials changed the lethal injection protocol to include a Bispectral Index monitor or BIS. Fourth Circuit Judge M. Blane Michael dissented from the three-judge panel’s order, and in his dissenting opinion Judge Michael writes, “The clear weight of evidence, however, reveals that the State’s use of the BIS monitor will not adequately ensure that Brown will remain unconscious throughout his execution.”

In Ohio, Judge Gregory Frost, an Ohio federal district court judge has had the unenviable task of sorting through that state’s lethal injection litigation, including who should and should not get stays based on that litigation. The problem for Judge Frost is that the Sixth Circuit can’t figure out what standards are applicable. “Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is.“ “In other words, there is apparently no substantive law of the case [governs] here because there is no apparent consistency to the appellate decisions that have arisen from this litigation. “

In South Dakota Governor Rounds halted the execution of Elijah Page on lethal injection grounds. Governor Rounds purportedly halted the execution saying the 1984 state law detailing how to administer lethal drugs is obsolete. Rounds and the Attorney General said the law requires the state to use two drugs to kill a condemned person — but that prison officials planned to use a three-drug combination, potentially putting them in legal trouble. The execution is tentatively rescheduled for summer 2007.

Finally, the Texas Court of Criminal Appeals in Ex parte John Alba ordered expanded briefing on lethal injection procedure in Texas. For a brief moment it seemed that the nation’s largest death chamber might be slowed or even stopped. That hope was short lived as the Texas death chamber resumed in October with the killing of Greg Summers and, a few days later, both Donell Jackson and Willie Shannon.

And there you have it.

By the end of the year the death chambers in three states, Kentucky, Maryland, and New Jersey, were shuttered out of the failure of their departments of corrections to comply with their respective administrative procedural laws. Governors in Florida and South Dakota shuttered their death chambers for state specific concerns relating to lethal injection. Challenges to the constitutionality of lethal injection has stopped – save volunteers – for now executions by that method in California and the Eight Circuit. The mess in Ohio & the Sixth Circuit appears to mean that executions there will continue on a case – by – case basis.

“I find that confusing — that some inmates have been allowed a stay and others have not,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. “It just seems like an arbitrary way of doing it.”

And in 2007? Look for key lethal injection challenges potentially in Oklahoma with the Corey Hamilton execution date (the first since the horrible Florida botch), Ohio with various dates in late January & February (what is the standard in the Sixth Circuit), various Tennessee executions dates scheduled for the coming months (whether the Sixth Circuit’s on again, off again stays are an Ohio only event), and the federal execution of Bruce Webster (in light of the Spring 2006 stays are federal executions on permanent hold).
Next up the year that was, non-lethal injection developments.

[Links for source materials & corrections of typos to follow]

[Below is the second part of the year end roundup. A third part on the year in caselaw will be posted this weekend. The entire year in review will go out with this weekend’s email edition. For now, however, find the draft copy on the year in lethal injection below. - k]

The Year of the Needle (draft)

Few people could have suspected that when the Eleventh Circuit denied a stay to Clarence Hill in January 2006 that a firestorm would soon engulf the manner in which executions are carried out. The United States Supreme Court stayed Hill’s execution date. The ultimate question before the Court in Hill was not lethal injection — a three-drug cocktail that anesthetizes, paralyzes the lungs and then causes a massive heart attack – but rather how a challenge to that method of execution is best brought in the federal courts. The resulting year in lethal injection have been tracked regularly here at our blog & Boalt Hall’s DP Project have been tracking the developments all year.

The Court’s ultimate decision in Hill was well summarized by the Habeas Assistance Project:

On June 12, 2006, the Supreme Court unanimously held that Clarence Hill was entitled to challenge the constitutionality of Florida’s lethal injection practice in a civil rights law suit under 42 U.S.C. section 1983, rather than through a habeas corpus proceeding. Hill v. McDonough. This was because Hill’s action, if successful, did not necessarily prevent the State from executing him by lethal injection. Instead, Florida would only be prevented from using a lethal injection procedure that causes a foreseeable risk of gratuitous and unnecessary pain. The Court rejected respondent’s argument that in order to challenge an aspect of an execution procedure in a civil rights law suit, the plaintiff must be required to identify an alternative, authorized method a execution.

The dramatic tension that marked the year in lethal injection perhaps was best offered up by very odd juxtaposition on the same Wednesday night in September. The same Clarence Hill whose botched opinion by the Eleventh Circuit that started off the year of the needle was eventually executed by Florida. His death came hours after the U.S. Supreme Court rejected his final appeal on a 5-4 vote. The same day the Texas Court of Criminal Appeals in Ex parte John Alba ordered in an unpublished memorandum opinion / order, the Texas Court of Criminal Appeals orders expanded briefing on lethal injection procedure in Texas.

Then there was the end of the year spate of lethal injection decisions & reprieves. The flurry of activity started in Kentucky with Franklin Circuit Judge Sam McNamara holding that the state’s administrative procedures act applied to the the lethal injection protocol. Vernon Evans would win an indefinite stay when the Maryland Court of Appeals concluded that the regulations governing lethal injection were no different than any other regulation and needed to comply with the state’s administrative law rules. Michael Morales likewise was indefinitely stayed, in his case owing to problems with how California administers its lethal injection protocol; a protocols whose viability wasn’t helped when it was learned that following a putatively botched execution guards responded curtly “shit does happen.” Finally there was Florida where, following the horrible botched execution of Angel Diaz, Governor Jeb Bush stayed that state’s death machine.

The Federal Courts of Appeals

Perhaps the least noted lethal injection story, however, was a stay in Missouri. Justice Alito’s first vote on the Supreme Court appears to have involved “Show Me” state lethal injection litigation. The litigation over the fate of Michael Taylor is ongoing. The district court enjoined Taylor execution save for a protocol it crafted as a remedy. The State appealed. While the appeal was pending Missouri revised its protocol for lethal injections. In the most recent move an Eight Circuit panel held in Michael Taylor v. Crawford that a remand was now needed to determine the constitutionality of the new protocol. Briefs available here. The practical impact of the Taylor litigation appears to be that, save for volunteers & Nebraska’s electric chair, the death chambers in the Eight Circuit – Arkansas, Missouri, & South Dakota – are shuttered for now. The details and breadth of the Taylor related stays have not been worked through, at least not in the public press.

The Eighth Circuit’s jurisprudence details may not have been worked out but the ground rules in the Sixth Circuit defy explanation. Panels of that Court, without much rationale, have let some executions occur & stayed others. As the judge sorting out the lethal injection mess in Ohio has noted:

Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it. In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate decisions that have arisen from this litigation.

The other Courts of Appeals are split in to two camps, not having substantively addressed the issue or yet to find the appropriate case to address the merits. Of the circuits that have circumvented the issue of lethal injection three have done so by holding that every claim, or virtually every claim, hae been brought too late – the Fourth, Fifth & Eleventh Circuits, the so-called heart of the death belt.

In addition to the courts of appeal U.S. District Court Judge Ellen Huvelle issued a preliminary injunction staying the three federal executions that had been scheduled for May (of James H. Roane Jr., Richard Tipton and Cory Johnson), apparently, out of concerns over lethal injection.

The States

As previously mentioned, the year end with a bang with courtroom shoot-outs in Maryland and California. With that stated, lethal injection litigation impacted more courts than just those two states & more than just the Sixth & Eighth Circuits.

In California, following the on again, off again execution of Michael Morales, California’s death chamber is again off. First stayed in February the California death chamber appeared to be cranking up when they found a doctor to address some concerns about but at the last moment before the execution of Morales two anesthesiologists retained by DoC refused to take part, saying that it was “medically unethical.” By the of the year the Judge Fogel the federal district court judge sorting out the lethal injection mess in California issued a “memorandum of intended decision ” concluding that California’s “implementation of lethal injection is broken, but it can be fixed.”

Gov. Jeb Bush in Florida suspended all executions in December following a horribly botched lethal injection where the the execution team simply blew it. As the New York Times noted:

Governor Bush’s decision came two days after an executioner failed to properly inject lethal chemical into an inmate. Officials said the needle administering the chemicals punctured the vein and then delivered the dose into the inmate’s soft tissue, rather than the vein itself. A second dose was required, and the inmate died 34 minutes after the initial injection.

As a National Coalition to Abolish the Death Penalty spokesman put it:, “Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether its electrocution or lethal injection.”

In Kentucky that state’s supreme court, while conceding that the chemicals used to execute death row inmates in Kentucky might cause needless pain, it heldthat using them did not violate the Constitution’s prohibition on cruel and unusual punishment.“ Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain,” Justice Donald C. Wintersheimer wrote for the unanimous court. “The prohibition is against cruel and unusual punishment and does not require a complete absence of pain.” Days thereafter, Franklin Circuit Judge Sam McNamara held, like the Maryland Court of Appeals would a few a days later, that lethal injection is like any other administrative regulation and subject to th administrative procedures act.

Maryland’s highest court made the Old Line State the third death chamber at least temporarily shuttered by an effective state court litigation strategy (Kentucky & New Jersey being the other two) under a state’s administrative procedures act challenging lethal injection regulations. The opinion in Vernon Evans v. State of Maryland holds that state law requires prison officials to submit their lethal injection procedures to public.

As noted above, Missouri’s death chamber is shut for now as it works out its lethal injection protocol. Curiously, the state’s Department of Corrections attempted to have a anesthesiologist participate in the execution process to ensure that its executions were within the parameters set down for it by the Taylor Court. That position drew a harsh rebuke from Am. Soc. of Anesthesiologists. The ASA’s response was quick and sharp: “The legal system has painted itself into this corner and it is not our obligation to get it out,” seemingly ending that option for corrections officials trying to figure out a way to carry out their obligations in a constitutonally permissible and humane manner.

In New Jersey the state’s lethal injection protocol, despite hearings on the subject, was never finalized & proposed regulations appeared to lapse after that state’s legislature voted to impose a moratorium on executions.

In North Carolina, the Fourth Circuit in Brown v. Beck refused to halt the scheduled execution of Willie Brown. Just days before the execution corrections officials changed the lethal injection protocol to include a Bispectral Index monitor or BIS. Fourth Circuit Judge M. Blane Michael dissented from the three-judge panel’s order, and in his dissenting opinion Judge Michael writes, “The clear weight of evidence, however, reveals that the State’s use of the BIS monitor will not adequately ensure that Brown will remain unconscious throughout his execution.”

In Ohio, Judge Gregory Frost, an Ohio federal district court judge has had the unenviable task of sorting through that state’s lethal injection litigation, including who should and should not get stays based on that litigation. The problem for Judge Frost is that the Sixth Circuit can’t figure out what standards are applicable. “Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is.“ “In other words, there is apparently no substantive law of the case [governs] here because there is no apparent consistency to the appellate decisions that have arisen from this litigation. “

In South Dakota Governor Rounds halted the execution of Elijah Page on lethal injection grounds. Governor Rounds purportedly halted the execution saying the 1984 state law detailing how to administer lethal drugs is obsolete. Rounds and the Attorney General said the law requires the state to use two drugs to kill a condemned person — but that prison officials planned to use a three-drug combination, potentially putting them in legal trouble. The execution is tentatively rescheduled for summer 2007.

Finally, the Texas Court of Criminal Appeals in Ex parte John Alba ordered expanded briefing on lethal injection procedure in Texas. For a brief moment it seemed that the nation’s largest death chamber might be slowed or even stopped. That hope was short lived as the Texas death chamber resumed in October with the killing of Greg Summers and, a few days later, both Donell Jackson and Willie Shannon.

And there you have it.

By the end of the year the death chambers in three states, Kentucky, Maryland, and New Jersey, were shuttered out of the failure of their departments of corrections to comply with their respective administrative procedural laws. Governors in Florida and South Dakota shuttered their death chambers for state specific concerns relating to lethal injection. Challenges to the constitutionality of lethal injection has stopped – save volunteers – for now executions by that method in California and the Eight Circuit. The mess in Ohio & the Sixth Circuit appears to mean that executions there will continue on a case – by – case basis.

“I find that confusing — that some inmates have been allowed a stay and others have not,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. “It just seems like an arbitrary way of doing it.”

And in 2007? Look for key lethal injection challenges potentially in Oklahoma with the Corey Hamilton execution date (the first since the horrible Florida botch), Ohio with various dates in late January & February (what is the standard in the Sixth Circuit), various Tennessee executions dates scheduled for the coming months (whether the Sixth Circuit’s on again, off again stays are an Ohio only event), and the federal execution of Bruce Webster (in light of the Spring 2006 stays are federal executions on permanent hold).
Next up the year that was, non-lethal injection developments.

[Links for source materials & corrections of typos to follow]