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No. 07-5439
http://www.oranous.com/florida/MarkSchwab/07-5439ts.pdf
No. 07-5439
IN THE
Supreme Court of the United States
RALPH BAZE, et al,
Petitioners,
RALPH BAZE, et al,
Petitioners,
v.
JOHN D. REES, et al.,
Respondents.
JOHN D. REES, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF KENTUCKY
BRIEF FOR PETITIONERS
________
DONALD B. VERRILLI, JR. DAVID M. BARRON*
MATTHEW S. HELLMAN JOHN ANTHONY PALOMBI
GINGER D. ANDERS ASSISTANT PUBLIC ADVOCATES
CARRIE F. APFEL KENTUCKY DEPARTMENT OF
JENNER & BLOCK LLP PUBLIC ADVOCACY
601 13th Street N.W. 100 Fair Oaks Lane, Ste. 301
Washington, DC 20005 Frankfort, KY 40601
(202) 639-6000 (502) 564-3948
November 5, 2007 *Counsel of Record
SUPREME COURT OF KENTUCKY
BRIEF FOR PETITIONERS
________
DONALD B. VERRILLI, JR. DAVID M. BARRON*
MATTHEW S. HELLMAN JOHN ANTHONY PALOMBI
GINGER D. ANDERS ASSISTANT PUBLIC ADVOCATES
CARRIE F. APFEL KENTUCKY DEPARTMENT OF
JENNER & BLOCK LLP PUBLIC ADVOCACY
601 13th Street N.W. 100 Fair Oaks Lane, Ste. 301
Washington, DC 20005 Frankfort, KY 40601
(202) 639-6000 (502) 564-3948
November 5, 2007 *Counsel of Record
I. Does the Eighth Amendment to the United
States Constitution prohibit means for
carrying out a method of execution that create
an unnecessary risk of pain and suffering as
opposed to only a substantial risk of the
wanton infliction of pain?
II. Do the means for carrying out an execution
cause an unnecessary risk of pain and
suffering in violation of the Eighth
Amendment upon a showing that readily
available alternatives that pose less risk of
pain and suffering could be used?
III. Does the continued use of sodium thiopental,
pancuronium bromide, and potassium
chloride, individually or together, violate the
cruel and unusual punishment clause of the
Eighth Amendment because lethal injections
can be carried out by using other chemicals
that pose less risk of pain and suffering?
QUESTIONS PRESENTED
ii
ii
LIST OF PARTIES
Pursuant to Supreme Court Rule 24.1(b), the
following list identifies all of the parties before the
Kentucky Supreme Court.
Pursuant to Supreme Court Rule 24.1(b), the
following list identifies all of the parties before the
Kentucky Supreme Court.
Ralph Baze and Thomas C. Bowling were the
appellants below. They are the Petitioners in this
action. John D. Rees, Glenn Haeberlin, and Ernie
Fletcher, were appellees below.
appellants below. They are the Petitioners in this
action. John D. Rees, Glenn Haeberlin, and Ernie
Fletcher, were appellees below.
Glenn Haeberlin has since been replaced by
Thomas Simpson as Warden of the Kentucky State
Penitentiary. Pursuant to Supreme Court Rule
35.3, Warden Simpson has been substituted as a
party.
Thomas Simpson as Warden of the Kentucky State
Penitentiary. Pursuant to Supreme Court Rule
35.3, Warden Simpson has been substituted as a
party.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................i
LIST OF PARTIES......................................................ii
TABLE OF AUTHORITIES.......................................vi
OPINIONS BELOW....................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL PROVISION INVOLVED ........1
STATEMENT OF THECASE....................................1
A. Evolution Of Methods Of Execution.................1
B. Lethal Injection .................................................4
1.
The Genesis Of The Three-Drug
Protocol ........................................................4
2.
Kentucky Adopts The Three-Drug
Protocol ........................................................7
C. Kentucky’s Lethal Injection Procedures.........10
1. The Three-Drug Formula...........................10
2.
Kentucky’s Drug Administration
System .......................................................12
3. The Experience Of Other States With
Execution Procedures Like Kentucky ......20
4. Less Dangerous Alternatives ..................... 24
D. Procedural History Of This Action.................25
SUMMARY OFARGUMENT...................................27
ARGUMENT ............................................................. 30
iv
I.
The Eighth Amendment Prohibits
Execution Procedures That Involve An
Unnecessary Risk Of Excruciating Pain. ......31
A.
The Eighth Amendment Prohibits
Punishments That Involve
“Unnecessary Cruelty.” .............................32
B.
States Must Administer Their
Execution Procedures In A Manner
That Does Not Involve Unnecessary
Pain............................................................ 34
C.
Numerous Lower Courts Have Held
That Unnecessary Risks Of Pain Are
Unconstitutional........................................36
D.
The Eighth Amendment Requires
States To Remedy Significant And
Unnecessary Risks Of Severe Pain. ......... 38
II.
Kentucky’s Procedures Subject Inmates
To An Unnecessary Risk Of Excruciating
Pain. ................................................................ 41
A. The Kentucky Courts Failed To Apply
The Proper Constitutional Test................41
1. The Kentucky Courts Applied The
Wrong Standard....................................41
2.
The Kentucky Courts Failed To
Analyze The Evidence As A Whole. .....43
B.
This Court Should Find That
Kentucky’s Procedures Expose
Inmates To An Unnecessary Risk Of
Excruciating Pain......................................43
v
The Eighth Amendment Prohibits
Execution Procedures That Involve An
Unnecessary Risk Of Excruciating Pain. ......31
A.
The Eighth Amendment Prohibits
Punishments That Involve
“Unnecessary Cruelty.” .............................32
B.
States Must Administer Their
Execution Procedures In A Manner
That Does Not Involve Unnecessary
Pain............................................................ 34
C.
Numerous Lower Courts Have Held
That Unnecessary Risks Of Pain Are
Unconstitutional........................................36
D.
The Eighth Amendment Requires
States To Remedy Significant And
Unnecessary Risks Of Severe Pain. ......... 38
II.
Kentucky’s Procedures Subject Inmates
To An Unnecessary Risk Of Excruciating
Pain. ................................................................ 41
A. The Kentucky Courts Failed To Apply
The Proper Constitutional Test................41
1. The Kentucky Courts Applied The
Wrong Standard....................................41
2.
The Kentucky Courts Failed To
Analyze The Evidence As A Whole. .....43
B.
This Court Should Find That
Kentucky’s Procedures Expose
Inmates To An Unnecessary Risk Of
Excruciating Pain......................................43
v
1. Kentucky Has
Chosen To Employ
Dangerous Drugs That Involve A
Risk Of Excruciating Pain....................44
2. Kentucky
Has Developed Drug
Administration Procedures That
Make Inadequate Anesthesia
Likely.....................................................45
3.
Kentucky’s Selection Of These
Risky Procedures Was IllConsidered.............................................
50
C.
The Risk Kentucky’s Procedures
Create Is Reasonably Preventable
Through The Adoption Of Available
Alternatives. ..............................................51
1.
Removing Pancuronium And
Potassium From The Execution
Protocol Would Greatly Reduce The
Risk Of Pain Without
Compromising Penological
Interests. ...............................................51
2.
An Alternative Way To Minimize
Risk Is For A Qualified Person To
Monitor Anesthetic Depth
Throughout The Execution...................57
D. Conclusion..................................................59
III.
In The Alternative, This Court Should
Remand To Allow The Lower Courts To
Undertake The Proper Constitutional
Analysis...........................................................59
CONCLUSION ..........................................................60
Chosen To Employ
Dangerous Drugs That Involve A
Risk Of Excruciating Pain....................44
2. Kentucky
Has Developed Drug
Administration Procedures That
Make Inadequate Anesthesia
Likely.....................................................45
3.
Kentucky’s Selection Of These
Risky Procedures Was IllConsidered.............................................
50
C.
The Risk Kentucky’s Procedures
Create Is Reasonably Preventable
Through The Adoption Of Available
Alternatives. ..............................................51
1.
Removing Pancuronium And
Potassium From The Execution
Protocol Would Greatly Reduce The
Risk Of Pain Without
Compromising Penological
Interests. ...............................................51
2.
An Alternative Way To Minimize
Risk Is For A Qualified Person To
Monitor Anesthetic Depth
Throughout The Execution...................57
D. Conclusion..................................................59
III.
In The Alternative, This Court Should
Remand To Allow The Lower Courts To
Undertake The Proper Constitutional
Analysis...........................................................59
CONCLUSION ..........................................................60
vi
TABLE OF AUTHORITIES
CASES
Beardslee v. Woodford, 395 F.3d 1064 (9th
Cir. 2005) ..............................................5, 46, 52
Bethea v. Crouse, 417 F.2d 504 (10th Cir.
1969)..........................................................34, 36
Brown v. Beck, No. 06 CT 3018, 2006 WL
3914717 (E.D.N.C. Apr. 7, 2006).........37-38, 55
Campbell v. Wood, 18 F.3d 662 (9th Cir.
1994)................................................................36
Cooey v. Taft, No. 2:04-CV-1156, 2007 WL
2607583 (S.D. Ohio Sept. 5, 2007) ................. 37
Cooper v. Rimmer, 379 F.3d 1029 (9th Cir.
2004)................................................................37
Estelle v. Gamble, 429 U.S. 97 (1976)................. 30
Evans v. Saar, 412 F. Supp. 2d 519 (D. Md.
2006)................................................................38
Furman v. Georgia, 408 U.S. 238 (1972)....... 33, 34
Gomez v. United States District Court, 503
U.S. 653 (1992) .................................................4
Gregg v. Georgia, 428 U.S. 153 (1976) ....................
................................................. 27, 31, 33, 36, 42
Harbison, v. Little, No. Civ. 3:06-1206, __ F.
Supp. 2d __, 2007 WL 2821230 (M.D.
Tenn. Sept. 19, 2007)..11,24, 25, 47,48, 55, 56
Johnson v. California, 543 U.S. 499 (2005).........60
In re Kemmler, 136 U.S. 436 (1890) ............... 2, 32
Gregg v. Georgia, 428 U.S. 153 (1976) ....................
................................................. 27, 31, 33, 36, 42
Harbison, v. Little, No. Civ. 3:06-1206, __ F.
Supp. 2d __, 2007 WL 2821230 (M.D.
Tenn. Sept. 19, 2007)..11,24, 25, 47,48, 55, 56
Johnson v. California, 543 U.S. 499 (2005).........60
In re Kemmler, 136 U.S. 436 (1890) ............... 2, 32
vii
LaGrand v. Stewart, 173 F.3d 1144 (9th Cir.
1999)................................................................38
Louisiana ex rel. Francis v. Resweber, 329
U.S. 459 (1947) ............................. 33, 35, 36, 40
Malicoat v. State, 137 P.3d 1234 (Okla.
Crim. App. 2006).............................................36
Malloy v. South Carolina, 237 U.S. 180
(1915)..............................................................2-3
Morales v. Hickman, 415 F. Supp. 2d 1037
Malicoat v. State, 137 P.3d 1234 (Okla.
Crim. App. 2006).............................................36
Malloy v. South Carolina, 237 U.S. 180
(1915)..............................................................2-3
Morales v. Hickman, 415 F. Supp. 2d 1037
(N.D. Cal. 2006), aff'd per curiam, 438
F.3d 926 (9th Cir.), cert. denied, 546 U.S.
1163 (2006).............................. 23, 40, 54, 55, 58
Morales v. Hickman, 438 F.3d 926 (9th Cir.
2006), cert. denied, 546 U.S. 1163 (2006) ...... 58
Morales v. Tilton, 465 F. Supp. 2d 972 (N.D.
Cal. 2006) .................... 22, 23, 37, 43, 46, 48, 55
Panetti v. Quarterman, 127 S. Ct. 2842
(2007)...............................................................60
Roper v. Simmons, 543 U.S. 551 (2005)..................
....................................................... 30, 31, 33, 39
State v. Gee Jon, 211 P. 676 (Nev. 1923)..............3
In re Storti, 60 N.E. 210 (Mass. 1901) ..................2
F.3d 926 (9th Cir.), cert. denied, 546 U.S.
1163 (2006).............................. 23, 40, 54, 55, 58
Morales v. Hickman, 438 F.3d 926 (9th Cir.
2006), cert. denied, 546 U.S. 1163 (2006) ...... 58
Morales v. Tilton, 465 F. Supp. 2d 972 (N.D.
Cal. 2006) .................... 22, 23, 37, 43, 46, 48, 55
Panetti v. Quarterman, 127 S. Ct. 2842
(2007)...............................................................60
Roper v. Simmons, 543 U.S. 551 (2005)..................
....................................................... 30, 31, 33, 39
State v. Gee Jon, 211 P. 676 (Nev. 1923)..............3
In re Storti, 60 N.E. 210 (Mass. 1901) ..................2
Taylor v. Crawford, No. 05-4173-CV-C, 2006
WL 1779035 (W.D. Mo. June 26, 2006),
rev’d, 487 F.3d 1072 (8th Cir. 2007), cert.
pending................................................ 23, 46, 49
WL 1779035 (W.D. Mo. June 26, 2006),
rev’d, 487 F.3d 1072 (8th Cir. 2007), cert.
pending................................................ 23, 46, 49
Trop v. Dulles, 356 U.S. 86 (1958)................. 31, 32
viii
Walker v. Johnson, 448 F. Supp. 2d 719
(E.D. Va. 2006)................................................54
Weems v. United States, 217 U.S. 349 (1910) ........
............................................................. 30, 32, 33
Wilkerson v. Utah, 99 U.S. 130 (1878)................ 32
Weems v. United States, 217 U.S. 349 (1910) ........
............................................................. 30, 32, 33
Wilkerson v. Utah, 99 U.S. 130 (1878)................ 32
CONSTITUTIONAL PROVISIONS AND
STATUTES
U.S. Const. amend. VIII ........................................1
28 U.S.C. § 1257(a) ................................................1
Ky. Rev. Stat. § 258.095(12) ................................ 12
Ky. Rev. Stat. § 311A.170....................................17
Ky. Rev. Stat. § 431.220(a)(1)................................7
1923 Tex. Gen. Lawsch. 51, § 1............................3
1923 Tex. Gen. Lawsch. 51, § 14..........................3
MISCELLANEOUS
Br. of Amici Curiae Drs. Concannon, Geiser,
and Pettifer in Support of Petitioner 1-4,
Hill v. McDonough, No. 05-8794 (S. Ct.
2006)............................................................6, 53
Robbie Byrd, Informal Talks Opened Door to
Lethal Injection, Oct. 4, 2007, The
Huntsville Item, available at
http://www.itemonline.
Huntsville Item, available at
http://www.itemonline.
com/archivesearch/local_story_277004148
.html ..................................................................6
.html ..................................................................6
ix
Deborah W. Denno, Getting to Death: Are
Executions Constitutional?, 82 Iowa L.
Rev. 319 (1997) .............................................2, 3
Executions Constitutional?, 82 Iowa L.
Rev. 319 (1997) .............................................2, 3
Deborah W. Denno, The Lethal Injection
Quandary: How Medicine Has
Dismantled The Death Penalty, 76
Fordham L. Rev. 49 (2007)...............3, 4, 5, 6, 7
Quandary: How Medicine Has
Dismantled The Death Penalty, 76
Fordham L. Rev. 49 (2007)...............3, 4, 5, 6, 7
Deborah W. Denno, When Legislatures
Delegate Death: The Troubling Paradox
Behind State Uses Of Electrocution And
Lethal Injection And What It Says About
Us, 63 Ohio St. L.J. 63 (2002) ...................... 2, 9
Delegate Death: The Troubling Paradox
Behind State Uses Of Electrocution And
Lethal Injection And What It Says About
Us, 63 Ohio St. L.J. 63 (2002) ...................... 2, 9
Joe Farmer, Rector, 40, Executed for
Officer’s Slaying, Arkansas Democrat-
Gazette, Jan. 25, 1992, at 1..............................9
Officer’s Slaying, Arkansas Democrat-
Gazette, Jan. 25, 1992, at 1..............................9
The Governor’s Comm’n on Administration
of Lethal Injection, II Record of
Proceedings: Comm’n Meeting Packets
(Feb. 12, 2007) ................................................21
of Lethal Injection, II Record of
Proceedings: Comm’n Meeting Packets
(Feb. 12, 2007) ................................................21
Legislative Research Committee, Issues
Confronting The 1998 General Assembly,
Informational Bulletin No. 198 (Sept.
1997), available at
www.lrc.ky.gov/lrcpubs/Ib198.pdf....................9
Confronting The 1998 General Assembly,
Informational Bulletin No. 198 (Sept.
1997), available at
www.lrc.ky.gov/lrcpubs/Ib198.pdf....................9
Proceedings of the Governor’s Comm’n on
Lethal Injection, at 97-98, 101 (Feb. 12,
2007)................................................................21
Lethal Injection, at 97-98, 101 (Feb. 12,
2007)................................................................21
Summary of the Findings of the Dep’t of
Corrections Task Force Regarding the
Dec. 13, 2006 Execution of Angel Diaz
(Dec. 20, 2006) ................................................21
Corrections Task Force Regarding the
Dec. 13, 2006 Execution of Angel Diaz
(Dec. 20, 2006) ................................................21
x
Trial Tr., Evans v. Saar, No. 06-149 (D. Md.
Oct. 11, 2006)..................................................47
Robert D. Truog et al., Recommendations for
end-of-life care in the intensive care unit:
The Ethics Committee of the Society of
Critical Care Medicine, 29 Crit. Care
Med. 2332 (2001) ............................................53
end-of-life care in the intensive care unit:
The Ethics Committee of the Society of
Critical Care Medicine, 29 Crit. Care
Med. 2332 (2001) ............................................53
United States Department of Justice,
Bureau of Justice Statistics, Table 2,
available at http://www.ojp.
usdoj.gov/bjs/pub/pdf/cp05.pdf(last visited
Nov. 4, 2007) ................................................. 3, 4
Bureau of Justice Statistics, Table 2,
available at http://www.ojp.
usdoj.gov/bjs/pub/pdf/cp05.pdf(last visited
Nov. 4, 2007) ................................................. 3, 4
United States Department of Justice,
Bureau of Justice Statistics, available at
http://www.ojp.
usdoj.gov/bjs/data/exest.csv (last visited
Nov. 4,2007).....................................................7
Bureau of Justice Statistics, available at
http://www.ojp.
usdoj.gov/bjs/data/exest.csv (last visited
Nov. 4,2007).....................................................7
Witnesses to a Botched Execution, St. Louis
Post-Dispatch, May 8, 1995, at 6B...................9
Post-Dispatch, May 8, 1995, at 6B...................9
OPINIONS BELOW PINIONS BELOW
The decision of the Kentucky Supreme Court,
reported at 217 S.W.3d 307 (Ky. 2006), is reprinted
at J.A. 798-809. The unpublished decision of the
Franklin Circuit Court is reprinted at J.A. 754-769.
The order of the Kentucky Supreme Court denying
rehearing is reprinted at Pet. App. 11.
JURISDICTION
The Kentucky Supreme Court issued its decision
on November 22, 2006, and denied the timely
petition for rehearing on April 19, 2007. The petition
for a writ of certiorari was filed on July 11, 2007.
This Court has jurisdiction pursuant to 28 U.S.C. §
1257(a).
The Kentucky Supreme Court issued its decision
on November 22, 2006, and denied the timely
petition for rehearing on April 19, 2007. The petition
for a writ of certiorari was filed on July 11, 2007.
This Court has jurisdiction pursuant to 28 U.S.C. §
1257(a).
CONSTITUTIONAL PROVISION INVOLVED
This case involves the Eighth Amendment to the
Constitution, which provides in relevant part:
“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII.
This case involves the Eighth Amendment to the
Constitution, which provides in relevant part:
“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII.
STATEMENT OF THE CASE
A. Evolution Of Methods Of Execution
The evolution of execution methods in this country
reflects a continuing quest to find a more humane
means of killing, as each new method turns out to be
less humane than intended. The problems are not
always perceived as promptly as they could be, but
their perception produces change aimed at
eliminating unnecessary dangers of severe pain.
A. Evolution Of Methods Of Execution
The evolution of execution methods in this country
reflects a continuing quest to find a more humane
means of killing, as each new method turns out to be
less humane than intended. The problems are not
always perceived as promptly as they could be, but
their perception produces change aimed at
eliminating unnecessary dangers of severe pain.
2
Hanging. In the 19th century, hanging was the
predominant method of execution in the United
States. Deborah W. Denno, Getting to Death: Are
Executions Constitutional?, 82 Iowa L. Rev. 319,
364-65 (1997) (noting that 48 States or territories
conducted executions by hanging in the 19th
century). At the beginning of the 20th century,
hanging was superseded by electrocution and gas,
because of a recognition that hanging subjected
inmates to the risk of an unnecessarily painful and
prolonged death In re Storti, 60 N.E. 210, 210
(Mass. 1901) (Holmes, C.J.) (explaining that the
rejection of hanging and adoption of electrocution
was “was devised for reaching the end proposed as
swiftly and painlessly as possible”). By 1913, 35
States had abandoned hanging. Today, no State
relies on hanging as a method of execution.1
Deborah W. Denno, When Legislatures Delegate
Death: The Troubling Paradox Behind State Uses Of
Electrocution And Lethal Injection And What It Says
About Us, 63 Ohio St. L.J. 63, 129 (2002).
predominant method of execution in the United
States. Deborah W. Denno, Getting to Death: Are
Executions Constitutional?, 82 Iowa L. Rev. 319,
364-65 (1997) (noting that 48 States or territories
conducted executions by hanging in the 19th
century). At the beginning of the 20th century,
hanging was superseded by electrocution and gas,
because of a recognition that hanging subjected
inmates to the risk of an unnecessarily painful and
prolonged death In re Storti, 60 N.E. 210, 210
(Mass. 1901) (Holmes, C.J.) (explaining that the
rejection of hanging and adoption of electrocution
was “was devised for reaching the end proposed as
swiftly and painlessly as possible”). By 1913, 35
States had abandoned hanging. Today, no State
relies on hanging as a method of execution.1
Deborah W. Denno, When Legislatures Delegate
Death: The Troubling Paradox Behind State Uses Of
Electrocution And Lethal Injection And What It Says
About Us, 63 Ohio St. L.J. 63, 129 (2002).
Electrocution. After its introduction in the late
19th century, electrocution was widely hailed as a
new, humane method of execution that took
advantage of scientific advances to ensure a quick
death. See, e.g., In re Kemmler, 136 U.S. 436, 444
(1890) (upholding New York’s electrocution statute
and noting it was the product of a commission
charged with identifying the “most humane and
practical method known to modern science of
carrying into effect the sentence of death”); Malloy v.
19th century, electrocution was widely hailed as a
new, humane method of execution that took
advantage of scientific advances to ensure a quick
death. See, e.g., In re Kemmler, 136 U.S. 436, 444
(1890) (upholding New York’s electrocution statute
and noting it was the product of a commission
charged with identifying the “most humane and
practical method known to modern science of
carrying into effect the sentence of death”); Malloy v.
1 Two States allow the condemned to choose hanging. Denno,
63 Ohio St. L.J. at 129.
63 Ohio St. L.J. at 129.
3
South Carolina, 237 U.S. 180, 185 (1915)
(“Influenced by the results in New York, eleven other
States have adopted the same mode for inflicting
death in capital cases; and, as is commonly known,
this result is the consequent of a well grounded belief
that electrocution is less painful and more humane
than hanging.”) (footnote omitted); 1923 Tex. Gen.
Laws ch. 51, §§ 1, 14 (changing from hanging to
electrocution and referring to the “fact” that hanging
“is antiquated and has been supplanted in many
states by the more modern and humane system of
electrocution.”). Over time, botched electrocutions
(people catching on fire, bleeding) led to increasing
concern as to whether electrocution was humane.
State v. Gee Jon, 211 P. 676, 682 (Nev. 1923) (noting
Nevada’s adoption of lethal gas over electrocution
due to concerns about the humaneness of
electrocution); Denno, 82 Iowa L. Rev. at App. 2A
(detailing 18 botched electrocutions since 1979).
Today, only Nebraska relies on electrocution.2
Deborah W. Denno, The Lethal Injection Quandary:
How Medicine Has Dismantled The Death Penalty,
76 Fordham L. Rev. 49, 93 (2007).
Lethal gas. Like electrocution, lethal gas was
initially thought to be a humane improvement. Gee
Jon, 211 P. at 682. Once again, botched executions
eventually caused States to abandon the method.
Denno, 82 Iowa L. Rev. at 367-68 (explaining that
initially thought to be a humane improvement. Gee
Jon, 211 P. at 682. Once again, botched executions
eventually caused States to abandon the method.
Denno, 82 Iowa L. Rev. at 367-68 (explaining that
2 Nine States allow inmates sentenced to death before a certain
date to choose electrocution. United States Department of
Justice, Bureau of Justice Statistics, Table 2, available at
http://www.ojp.usdoj.gov/bjs/pub/ pdf/cp05.pdf (last visited Nov.
4, 2007).
date to choose electrocution. United States Department of
Justice, Bureau of Justice Statistics, Table 2, available at
http://www.ojp.usdoj.gov/bjs/pub/ pdf/cp05.pdf (last visited Nov.
4, 2007).
B. Lethal Injection.
1. The Genesis Of The Three-Drug
Protocol.
. Lethal Injection.
1. The Genesis Of The Three-Drug
Protocol.
4
“Jesse Bishop, the first person to die from lethal gas
following Gregg in 1979, appeared to experience such
pain and agony that Nevada abolished lethal gas and
changed to lethal injection.”). Even when
administered as intended, lethal gas often yielded
disturbing results. Gomez v. United States District
Court, 503 U.S. 653, 655 (1992) (Stevens, J.,
dissenting) (“Execution by gas … produces prolonged
seizures … flailing, twitching of extremities, and
grimacing” and causes “asphyxiation by suffocation
or strangulation.”) (ellipsis in original). Today, no
State relies on lethal gas as a method of execution.3
Denno, 76 Fordham L. Rev. at 59-60 n.51.
The three-drug protocol currently used by
Kentucky and the other States that have adopted
lethal injection was first developed in Oklahoma in
1977, at the behest of a state legislator, who was
aided in his endeavor by Dr. Stanley Deutsch, an
anesthesiologist, and Dr. Jay Chapman, a medical
examiner with no anesthesia training. JA 104-05;
Denno, 76 Fordham L. Rev. at 66. The group decided
to use a barbiturate anesthetic in combination with a
neuromuscular blocker that would paralyze the
inmate. But they did not identify specific drugs for
Kentucky and the other States that have adopted
lethal injection was first developed in Oklahoma in
1977, at the behest of a state legislator, who was
aided in his endeavor by Dr. Stanley Deutsch, an
anesthesiologist, and Dr. Jay Chapman, a medical
examiner with no anesthesia training. JA 104-05;
Denno, 76 Fordham L. Rev. at 66. The group decided
to use a barbiturate anesthetic in combination with a
neuromuscular blocker that would paralyze the
inmate. But they did not identify specific drugs for
3 Four States provide for lethal gas as an alternative to lethal
injection, United States Department of Justice, Bureau of
Justice Statistics, Table 2, available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf (last visited Nov.
4, 2007).
injection, United States Department of Justice, Bureau of
Justice Statistics, Table 2, available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cp05.pdf (last visited Nov.
4, 2007).
5
use in the process. See Denno, 76 Fordham L. Rev.
at 67. The drugs chosen by the Oklahoma
Department of Corrections were sodium thiopental,
an ultra-short acting barbiturate anesthetic (also
known as “thiopental”); and a long-acting paralytic.4
JA 105. Although Oklahoma uses vecuronium
bromide as its paralytic agent, every other State,
including Kentucky, eventually chose pancuronium
bromide (hereafter, “pancuronium”) as the paralytic
agent. Denno, 76 Fordham L. Rev. at 78. A third
drug, potassium chloride (hereafter “potassium”) –
which stops the heart but also causes excruciating
pain – was later added, perhaps because the original
protocol incorrectly stated that potassium was a
paralytic agent.5 JA 105-14; 651-52. The group
devising Oklahoma’s protocol did not consult any
other physicians or veterinarians, conduct any
medical or scientific research, or consider how, and
by whom, the drugs would be administered in actual
executions. JA 418-23; cf. Beardslee v. Woodford,
395 F.3d 1064, 1073-74 (9th Cir. 2005) (describing
this history).
4 John Rees, Commissioner of the Kentucky Department of
Corrections was employed by the Oklahoma Department of
Corrections in the 1970’s and helped draft the State’s first
lethal injection protocol. JA 249, 259. During the trial in this
case, Rees testified that, other than that the chemicals are used
in other States, he still does not know why thiopental,
pancuronium, and potassium are used instead of different
chemicals or a single-chemical formula . Id. 257.
5 The protocol required the “continuous, intravenous
administration of a lethal quantity of sodium thiopental
combined with either tubo-curarine or succinylcholine chloride
or potassium chloride, which is an ultrashort-acting barbiturate
combination with a chemical paralytic agent.” JA 651-52.
Corrections was employed by the Oklahoma Department of
Corrections in the 1970’s and helped draft the State’s first
lethal injection protocol. JA 249, 259. During the trial in this
case, Rees testified that, other than that the chemicals are used
in other States, he still does not know why thiopental,
pancuronium, and potassium are used instead of different
chemicals or a single-chemical formula . Id. 257.
5 The protocol required the “continuous, intravenous
administration of a lethal quantity of sodium thiopental
combined with either tubo-curarine or succinylcholine chloride
or potassium chloride, which is an ultrashort-acting barbiturate
combination with a chemical paralytic agent.” JA 651-52.
6
In devising Oklahoma’s protocol, Chapman
assumed that doctors would inject the drugs. Denno,
76 Fordham L. Rev. at 68 & n.118. Shortly after
Oklahoma adopted lethal injection in 1977, he
expressed alarm over how the three-drug protocol
would be administered in practice. Id. at 72 (citing
Jim Killackey, Execution Drug Like Anesthesia,
Daily Oklahoman, May 12, 1977, at 1) (“Dr A. Jay
Chapman, state medical examiner, said [in May
1977] that if the death-dealing drug is not
administered properly, the convict may not die and
could be subjected to severe muscle pain.”).
assumed that doctors would inject the drugs. Denno,
76 Fordham L. Rev. at 68 & n.118. Shortly after
Oklahoma adopted lethal injection in 1977, he
expressed alarm over how the three-drug protocol
would be administered in practice. Id. at 72 (citing
Jim Killackey, Execution Drug Like Anesthesia,
Daily Oklahoman, May 12, 1977, at 1) (“Dr A. Jay
Chapman, state medical examiner, said [in May
1977] that if the death-dealing drug is not
administered properly, the convict may not die and
could be subjected to severe muscle pain.”).
The first lethal injection execution was performed
in Texas in 1982. Denno, 76 Fordham L. Rev. at 79.
Prior to that execution, Texas’s department of
corrections considered whether to adopt Oklahoma’s
three-drug protocol, and in the process, consulted Dr.
Gerry Etheredge, a veterinarian. Etheredge
suggested that the most reliably humane method of
lethal injection would be an overdose of
pentobarbital, the anesthetic most commonly used in
animal euthanasia. Robbie Byrd, Informal Talks
Opened Door to Lethal Injection, Oct. 4, 2007, The
Huntsville Item, available at
http://www.itemonline.com/archivesearch/local_story
_277004148.html. Veterinary euthanasia methods,
such as a lethal dose of pentobarbital, are the
product of extensive professional study by
veterinarians, undertaken with the goal of ensuring
that a painless death can be achieved by personnel
with varying levels of training and skill. See Br. of
Amici Curiae Drs. Concannon, Geiser, and Pettifer in
Support of Petitioner 1-4, Hill v. McDonough, No. 05
in Texas in 1982. Denno, 76 Fordham L. Rev. at 79.
Prior to that execution, Texas’s department of
corrections considered whether to adopt Oklahoma’s
three-drug protocol, and in the process, consulted Dr.
Gerry Etheredge, a veterinarian. Etheredge
suggested that the most reliably humane method of
lethal injection would be an overdose of
pentobarbital, the anesthetic most commonly used in
animal euthanasia. Robbie Byrd, Informal Talks
Opened Door to Lethal Injection, Oct. 4, 2007, The
Huntsville Item, available at
http://www.itemonline.com/archivesearch/local_story
_277004148.html. Veterinary euthanasia methods,
such as a lethal dose of pentobarbital, are the
product of extensive professional study by
veterinarians, undertaken with the goal of ensuring
that a painless death can be achieved by personnel
with varying levels of training and skill. See Br. of
Amici Curiae Drs. Concannon, Geiser, and Pettifer in
Support of Petitioner 1-4, Hill v. McDonough, No. 05
7
8794 (S. Ct. 2006). Texas nevertheless rejected
Etheredge’s suggestion, and adopted Oklahoma’s
three-drug protocol. JA 112.
Other States followed suit, each adopting the
three-drug protocol without conducting any research
or analysis.6 As the trial court found, there is “scant
evidence that ensuing State adoption of lethal
injection was supported by any additional medical or
scientific studies that the adopted form of lethal
injection was an acceptable alternative to other
methods. Rather, … the various States simply fell in
line relying solely on Oklahoma’s protocol.” Id. 755
three-drug protocol without conducting any research
or analysis.6 As the trial court found, there is “scant
evidence that ensuing State adoption of lethal
injection was supported by any additional medical or
scientific studies that the adopted form of lethal
injection was an acceptable alternative to other
methods. Rather, … the various States simply fell in
line relying solely on Oklahoma’s protocol.” Id. 755
56. Today, with one exception, every State that has
the death penalty employs lethal injection. Denno,
76 Fordham L. Rev. at 93.
2. Kentucky Adopts The Three-DrugProtocol.
In 1998, the Kentucky legislature adopted lethal
injection as a method of execution. See Ky. Rev.
Stat. § 431.220(a)(1) (“every death sentence shall be
executed by continuous intravenous injection of a
substance or combination of substances sufficient to
cause death”). The task of determining the specific
drugs to be used was left to the Department of
injection as a method of execution. See Ky. Rev.
Stat. § 431.220(a)(1) (“every death sentence shall be
executed by continuous intravenous injection of a
substance or combination of substances sufficient to
cause death”). The task of determining the specific
drugs to be used was left to the Department of
6 New Jersey’s lethal injection protocol calls for the use of only
two of the drugs in the standard three-drug formula, omitting
the paralytic agent. JA 110. New Jersey has not conducted any
executions by lethal injection. United States Department of
Justice, Bureau of Justice Statistics, available at
http://www.ojp.usdoj.gov/bjs/data/exest.csv (last visited Nov. 4,
2007). New Hampshire has adopted lethal injection by statute,
but has no formal protocol specifying the chemicals to be used.
Denno, 78 Fordham L. Rev. at 126.
two of the drugs in the standard three-drug formula, omitting
the paralytic agent. JA 110. New Jersey has not conducted any
executions by lethal injection. United States Department of
Justice, Bureau of Justice Statistics, available at
http://www.ojp.usdoj.gov/bjs/data/exest.csv (last visited Nov. 4,
2007). New Hampshire has adopted lethal injection by statute,
but has no formal protocol specifying the chemicals to be used.
Denno, 78 Fordham L. Rev. at 126.
8
Corrections (DOC). JA 760. DOC officials “were
provided with little to no guidance on drafting a
lethal injection protocol.” Id.
Instead of seeking medical input and expert
advice, DOC officials “were resolved to mirror
protocols in other states.” Id. Accordingly, like other
States, the Kentucky DOC adopted the three-drug
formula without “any independent scientific or
medical studies or consulting any medical
professionals concerning the drugs and dosages to be
injected into the condemned.” Id.
advice, DOC officials “were resolved to mirror
protocols in other states.” Id. Accordingly, like other
States, the Kentucky DOC adopted the three-drug
formula without “any independent scientific or
medical studies or consulting any medical
professionals concerning the drugs and dosages to be
injected into the condemned.” Id.
Former Warden Phil Parker testified that he
“didn’t have the knowledge to question [the
chemicals] but [had] no reason to because [other
States] were doing it … on a regular basis.” JA 226.
A Deputy Warden testified that “other States
share[d] with us how they had done things” and “we
took what they … verbally gave us, we certainly
made … a mental note of it … and brought it back.”
JA 157.
“didn’t have the knowledge to question [the
chemicals] but [had] no reason to because [other
States] were doing it … on a regular basis.” JA 226.
A Deputy Warden testified that “other States
share[d] with us how they had done things” and “we
took what they … verbally gave us, we certainly
made … a mental note of it … and brought it back.”
JA 157.
None of the DOC officials involved in drafting the
protocol understood why these three drugs were used
in other States, or the effect of each drug. JA 73,
142, 159-60. For example, Parker testified that he
had “no knowledge” that someone could be paralyzed
by pancuronium yet still feel pain. JA 214-15.
protocol understood why these three drugs were used
in other States, or the effect of each drug. JA 73,
142, 159-60. For example, Parker testified that he
had “no knowledge” that someone could be paralyzed
by pancuronium yet still feel pain. JA 214-15.
Although the DOC went along with the trend in
other States, it did so despite evidence that by 1998,
numerous botched executions had occurred using the
other States, it did so despite evidence that by 1998,
numerous botched executions had occurred using the
9
three-drug formula.7 In 1995, for instance,
Missouri’s execution of Emmitt Foster caused a
flurry of press coverage after Foster began
convulsing and gasping on the gurney. See
Witnesses to a Botched Execution, St. Louis Post-
Dispatch, May 8, 1995, at 6B. And in 1992,
Arkansas executioners were unable to find a vein in
Ricky Rector, causing them to make a two-inch
incision in Rector’s arm in an attempt to find a vein.
Rector was heard moaning throughout the fifty-
minute process. Joe Farmer, Rector, 40, Executed
for Officer’s Slaying, Arkansas Democrat-Gazette,
Jan. 25, 1992, at 1. In fact, the Kentucky legislature
itself had earlier identified these problems, noting
that “[s]ome doctors claim that prisoners could
strangle or suffer excruciating pain during the
chemical injections but may be prevented by the
paralytic agent from communicating their distress,”
and “[t]here have been claims of botched executions.”
Legislative Research Committee, Issues Confronting
The 1998 General Assembly, Informational Bulletin
No. 198, at 99 (Sept. 1997), available at
www.lrc.ky.gov/lrcpubs/Ib198.pdf (internal quotation
marks omitted).
In 1999, Kentucky performed its first and only
lethal injection execution, that of Eddie Lee Harper.
JA 167. Because pancuronium hides signs of
consciousness, there is no way to know whether
Harper’s execution was humane.
lethal injection execution, that of Eddie Lee Harper.
JA 167. Because pancuronium hides signs of
consciousness, there is no way to know whether
Harper’s execution was humane.
See, e.g., Denno, 63 Ohio St. L.J. at 139-141 (detailing 31
botched lethal injection executions); Denno, 76 Fordham L. Rev.
at 56-58 (discussing other botched lethal injection executions).
botched lethal injection executions); Denno, 76 Fordham L. Rev.
at 56-58 (discussing other botched lethal injection executions).
10
C.
Kentucky’s Lethal Injection Procedures.
Kentucky’s execution procedures combine the
dangerous three-drug formula copied from Oklahoma
and other States with haphazard drug
administration procedures carried out by unqualified
execution personnel.
1. The Three-Drug Formula.
The formula that Kentucky adopted from other
States consists of three drugs, the combination of
which Dr. Mark Heath, Petitioners’ expert
anesthesiologist, characterized as “bizarre” because
it employs a short acting barbiturate with a long
acting paralytic followed by “an extremely painful
way of stopping the heart.” JA 426-27. The effects of
the three drug formula were undisputed at trial.
The formula that Kentucky adopted from other
States consists of three drugs, the combination of
which Dr. Mark Heath, Petitioners’ expert
anesthesiologist, characterized as “bizarre” because
it employs a short acting barbiturate with a long
acting paralytic followed by “an extremely painful
way of stopping the heart.” JA 426-27. The effects of
the three drug formula were undisputed at trial.
Thiopental, the first drug injected, is a barbiturate
anesthetic that must be mixed into solution shortly
before it is used. Id. 430. Thiopental was frequently
used to induce anesthesia in the 1970s, when the
three-drug formula was first developed, because its
ultra-short acting nature rendered it easy to use in
conjunction with the longer-acting anesthetics that
would keep patients anesthetized throughout
surgery. Id. 429. Thiopental is rarely used today,
and is almost never employed as the sole agent of
anesthesia. Id. 429-31; 628.
anesthetic that must be mixed into solution shortly
before it is used. Id. 430. Thiopental was frequently
used to induce anesthesia in the 1970s, when the
three-drug formula was first developed, because its
ultra-short acting nature rendered it easy to use in
conjunction with the longer-acting anesthetics that
would keep patients anesthetized throughout
surgery. Id. 429. Thiopental is rarely used today,
and is almost never employed as the sole agent of
anesthesia. Id. 429-31; 628.
The second drug, pancuronium, masks visible
suffering by paralyzing the inmate’s voluntary
muscles. Id. 413-14. It has no analgesic or
anesthetic properties, and therefore does not reduce
consciousness or pain. Id. 436. A person given
pancuronium alone would be conscious but paralyzed
suffering by paralyzing the inmate’s voluntary
muscles. Id. 413-14. It has no analgesic or
anesthetic properties, and therefore does not reduce
consciousness or pain. Id. 436. A person given
pancuronium alone would be conscious but paralyzed
11
and unable to breathe, and would eventually
suffocate to death. Id. 437. The paralysis
pancuronium causes would also preclude a person
from communicating pain or distress. As Dr. Heath
explained, “[a]ny person or animal who’d been given
pancuronium, they are going to appear serene and
tranquil and peaceful and comfortable, regardless of
whether they are in fact awake and in agony.” Id.
441. Carol Weihrer, who has experienced conscious
paralysis (also called anesthesia awareness) during
surgery, testified that being awake while paralyzed
“was the worst thing in your life. You, you are
absolutely entombed in a corpse. You cannot move,
but you are a hundred percent alert. It’s terrible.”
Id. 397. Dr. Mark Dershwitz, the DOC’s expert
witness in this case, described the sensation as
“agonizing,” and “scary.” Id. 625-26.
The last drug injected, potassium, induces cardiac
arrest. Id. 427, 561. When administered to a
conscious person in concentrations sufficient to stop
the heart, potassium causes excruciating pain. Id.
443-44. Dr. Dershwitz opined that a conscious
person given potassium at the concentration level
Kentucky uses would be “screaming” in agony. Id.
600, 604.
paralysis (also called anesthesia awareness) during
surgery, testified that being awake while paralyzed
“was the worst thing in your life. You, you are
absolutely entombed in a corpse. You cannot move,
but you are a hundred percent alert. It’s terrible.”
Id. 397. Dr. Mark Dershwitz, the DOC’s expert
witness in this case, described the sensation as
“agonizing,” and “scary.” Id. 625-26.
The last drug injected, potassium, induces cardiac
arrest. Id. 427, 561. When administered to a
conscious person in concentrations sufficient to stop
the heart, potassium causes excruciating pain. Id.
443-44. Dr. Dershwitz opined that a conscious
person given potassium at the concentration level
Kentucky uses would be “screaming” in agony. Id.
600, 604.
It is undisputed that “the administration of
pancuronium bromide and potassium chloride, either
separately or in combination, would result in a
terrifying, excruciating death” if injected into a
conscious person, Harbison v. Little, No. Civ. 3:061206,
---F. Supp. 2d ---, 2007 WL 2821230, at *11
pancuronium bromide and potassium chloride, either
separately or in combination, would result in a
terrifying, excruciating death” if injected into a
conscious person, Harbison v. Little, No. Civ. 3:061206,
---F. Supp. 2d ---, 2007 WL 2821230, at *11
(M.D. Tenn. Sept. 19, 2007). Consequently, inducing
general anesthesia is “critical,” as Dr. Dershwitz put
12
it, to ensuring a humane execution. JA 558. General
anesthesia – the level of anesthesia sufficient to
prevent the sensation of severe pain, id. 407 – is
necessary because the pain of potassium is similar in
intensity to a “surgical stimulus,” id. 604, and could
be felt by someone who is only lightly anesthetized,
id. 406-07. If the intended dose of thiopental is not
injected successfully, or does not bring about general
anesthesia, the inmate will experience both the
terror and agony of conscious suffocation and the
excruciating pain caused by the potassium, but will
appear peaceful and unconscious to observers. Id.
437, 441-42, 445. This drug combination is so
sensitive to error and potentially inhumane that
Kentucky law, like that of many other States,
prohibits its use in animal euthanasia without
anesthetic monitoring by trained professionals. See
Ky. Rev. Stat. § 258.095(12); JA 458-59.
general anesthesia is “critical,” as Dr. Dershwitz put
12
it, to ensuring a humane execution. JA 558. General
anesthesia – the level of anesthesia sufficient to
prevent the sensation of severe pain, id. 407 – is
necessary because the pain of potassium is similar in
intensity to a “surgical stimulus,” id. 604, and could
be felt by someone who is only lightly anesthetized,
id. 406-07. If the intended dose of thiopental is not
injected successfully, or does not bring about general
anesthesia, the inmate will experience both the
terror and agony of conscious suffocation and the
excruciating pain caused by the potassium, but will
appear peaceful and unconscious to observers. Id.
437, 441-42, 445. This drug combination is so
sensitive to error and potentially inhumane that
Kentucky law, like that of many other States,
prohibits its use in animal euthanasia without
anesthetic monitoring by trained professionals. See
Ky. Rev. Stat. § 258.095(12); JA 458-59.
Despite these risks, Kentucky officials developed a
convoluted drug delivery system that creates a
significant likelihood of improper administration of
the anesthesia.
convoluted drug delivery system that creates a
significant likelihood of improper administration of
the anesthesia.
Drug Preparation. At the outset of the execution
procedure, the execution team must prepare the dose
of thiopental and load it into syringes, a complicated
process with numerous opportunity for errors. The
three-gram dose of thiopental must be constituted
from up to six separate kits of .5 grams of powder, JA
656, 844, 847, each of which must be individually
mixed with solution. Although Dr. Dershwitz
procedure, the execution team must prepare the dose
of thiopental and load it into syringes, a complicated
process with numerous opportunity for errors. The
three-gram dose of thiopental must be constituted
from up to six separate kits of .5 grams of powder, JA
656, 844, 847, each of which must be individually
mixed with solution. Although Dr. Dershwitz
2. Kentucky’s Drug Administration
System.
13
testified that the physical act of mixing thiopental is
simple, id. 623, the combination of several thiopental
kits and accompanying calculations are difficult
tasks for those who do not prepare drugs in their
day-to-day job, and can lead to an insufficient dose of
thiopental. Id. 472-73. Because three grams of
thiopental is a dose rarely used in the medical
context, the package insert does not contain
instructions for combining several separate kits and
drawing the solution up into one or more syringes.
Id. 656-76. The thiopental packaging states that the
only people who should mix or administer the sodium
thiopental are those “trained and experienced in the
administration of intravenous anesthetics.” Id. 528
System.
13
testified that the physical act of mixing thiopental is
simple, id. 623, the combination of several thiopental
kits and accompanying calculations are difficult
tasks for those who do not prepare drugs in their
day-to-day job, and can lead to an insufficient dose of
thiopental. Id. 472-73. Because three grams of
thiopental is a dose rarely used in the medical
context, the package insert does not contain
instructions for combining several separate kits and
drawing the solution up into one or more syringes.
Id. 656-76. The thiopental packaging states that the
only people who should mix or administer the sodium
thiopental are those “trained and experienced in the
administration of intravenous anesthetics.” Id. 528
29. The EMTs and phlebotomists responsible for
mixing the thiopental in Kentucky have not been
trained “in the administration of intravenous
anesthetics.” Id. 529. Nor does the execution
protocol specify the concentration of thiopental or
provide any mixing instructions, even though the
mixer must “know[] the concentration and volume”
in order to create the proper dose. Id. 472-73, 987.
IV Problems. As DOC officials realized, ensuring
reliable IV access is both difficult and crucial. Phil
Parker, the Warden who wrote Kentucky’s execution
protocol, testified that problems include “the I.V.
failing [after the injection started] for what we could
call, just in common language, a ‘blowout’ … by
pushing or injecting too vigorously or too hard.” Id.
217. A DOC nurse testified that different drugs have
different prescribed rates of injection, and that to
ensure that a chemical is not injected too vigorously,
she would consult a book on how fast to inject the
14
chemicals. Id. 355-56. Yet, the execution protocol
does not specify the rate at which the chemicals are
to be injected, or how to determine that rate. See
generally id. 912, 978-79.
different prescribed rates of injection, and that to
ensure that a chemical is not injected too vigorously,
she would consult a book on how fast to inject the
14
chemicals. Id. 355-56. Yet, the execution protocol
does not specify the rate at which the chemicals are
to be injected, or how to determine that rate. See
generally id. 912, 978-79.
IV infiltration – the condition that occurs when a
catheter is not inserted completely into a vein, or
goes through the vein – is a frequent occurrence even
in clinical settings, id. 463, particularly in prisoners,
who often have veins compromised by drug use. Id.
359, 772. If undetected, infiltration can result in the
delivery of insufficient thiopental to induce general
anesthesia, but sufficient pancuronium and
potassium to paralyze and cause pain.8 Id. 461-65.
An insufficient dose of thiopental can also result
from leaks in the IV tubing, a partially dislodged
catheter, and syringe errors. Id. 462-63.
catheter is not inserted completely into a vein, or
goes through the vein – is a frequent occurrence even
in clinical settings, id. 463, particularly in prisoners,
who often have veins compromised by drug use. Id.
359, 772. If undetected, infiltration can result in the
delivery of insufficient thiopental to induce general
anesthesia, but sufficient pancuronium and
potassium to paralyze and cause pain.8 Id. 461-65.
An insufficient dose of thiopental can also result
from leaks in the IV tubing, a partially dislodged
catheter, and syringe errors. Id. 462-63.
Kentucky’s protocol provides that the IV team –
an emergency medical technician (EMT) and a
phlebotomist – will place two separate catheters in
peripheral veins. The team is allowed up to an hour
to do so. Id. 285-86, 288, 976. Petitioners presented
unrebutted expert testimony that if it is not possible
to place a reliable IV in an individual within ten or
fifteen minutes, that person probably does not have
peripheral veins susceptible to a reliable IV
an emergency medical technician (EMT) and a
phlebotomist – will place two separate catheters in
peripheral veins. The team is allowed up to an hour
to do so. Id. 285-86, 288, 976. Petitioners presented
unrebutted expert testimony that if it is not possible
to place a reliable IV in an individual within ten or
fifteen minutes, that person probably does not have
peripheral veins susceptible to a reliable IV
8 For instance, if an infiltration, leak, or other IV problem result
in only 40% of each of the drugs reaching the inmate’s
circulation, the inmate would receive a dose of thiopental
insufficient to fully anesthetize the inmate, but sufficient
pancuronium and potassium to cause paralysis and
excruciating pain, respectively. This may be what occurred
during the December 2006 execution of Angel Diaz. See infra
pages 20 to 21.
in only 40% of each of the drugs reaching the inmate’s
circulation, the inmate would receive a dose of thiopental
insufficient to fully anesthetize the inmate, but sufficient
pancuronium and potassium to cause paralysis and
excruciating pain, respectively. This may be what occurred
during the December 2006 execution of Angel Diaz. See infra
pages 20 to 21.
15
placement.9 Id. 474-76. Kentucky officials
nevertheless decided, without consulting any doctors
or other medical personnel, to require IV personnel
to attempt to insert the IV lines for a full hour,
thereby increasing the potential for improperly
placed catheters and resulting failure in the delivery
of anesthetic. Id. 256, 476, 976.
Further compromising the reliability of the IV
insertion, the execution protocol instructs those
inserting the IVs to “look for the presence of blood in
the valve of the sited needle.” Id. 976. Dr. Mark
Heath, Petitioners’ expert anesthesiologist, testified
this procedure “really doesn’t make any sense at all.
There is no valve in the sited needle,” and checking
for a flash of blood is insufficient to determine
whether an IV has been successfully inserted. Id.
466-67.
insertion, the execution protocol instructs those
inserting the IVs to “look for the presence of blood in
the valve of the sited needle.” Id. 976. Dr. Mark
Heath, Petitioners’ expert anesthesiologist, testified
this procedure “really doesn’t make any sense at all.
There is no valve in the sited needle,” and checking
for a flash of blood is insufficient to determine
whether an IV has been successfully inserted. Id.
466-67.
Moreover, Kentucky has also decided to leave the
choice of which of the two IV lines should be used to
inject the drugs to the warden, who has no expertise
in IV insertion, even though the personnel who
placed the IV lines would have a better sense of
which catheter is more reliable. Id. 315. As the
warden put it, “I try to determine in my mind which,
which IV site I feel is the best” based on which IV
choice of which of the two IV lines should be used to
inject the drugs to the warden, who has no expertise
in IV insertion, even though the personnel who
placed the IV lines would have a better sense of
which catheter is more reliable. Id. 315. As the
warden put it, “I try to determine in my mind which,
which IV site I feel is the best” based on which IV
9 In such individuals, it may be necessary to place a central line
in a larger vein to obtain reliable IV access. Central line
placement is an invasive procedure that must be performed by
a doctor or a professional with special training. The DOC has
no procedure for placing a central line if necessary, JA 477, 976;
and it was undisputed at trial that EMTs and phlebotomists
are, except in rare cases, unable to place central lines. Id. 478.
in a larger vein to obtain reliable IV access. Central line
placement is an invasive procedure that must be performed by
a doctor or a professional with special training. The DOC has
no procedure for placing a central line if necessary, JA 477, 976;
and it was undisputed at trial that EMTs and phlebotomists
are, except in rare cases, unable to place central lines. Id. 478.
16
site produces a larger flash of blood when the needle
is inserted. Id.
Inadequate Facilities. The arrangement of
Kentucky’s execution facility makes problems of
administration more likely and hinders their
detection. The facility consists of a control room,
execution chamber, and witness rooms. Id. 203. The
inmate is strapped to a gurney in the center of the
execution chamber. Id. 266. The execution team
administers the drugs to the inmate remotely, from
the control room, necessitating the use of IV tubing
that snakes from the control room through a small
hole in the wall, across the execution chamber, and
to the inmate on the gurney. Id. 280. The execution
team is separated from the inmate by one-way glass,
id. 204-05, and is unable to see the side of the inmate
facing away from the control room window.
Kentucky’s execution facility makes problems of
administration more likely and hinders their
detection. The facility consists of a control room,
execution chamber, and witness rooms. Id. 203. The
inmate is strapped to a gurney in the center of the
execution chamber. Id. 266. The execution team
administers the drugs to the inmate remotely, from
the control room, necessitating the use of IV tubing
that snakes from the control room through a small
hole in the wall, across the execution chamber, and
to the inmate on the gurney. Id. 280. The execution
team is separated from the inmate by one-way glass,
id. 204-05, and is unable to see the side of the inmate
facing away from the control room window.
Although the EMT and the phlebotomist are
situated in the control room during the execution,
they play no role in injecting the drugs. That task is
performed by an executioner without medical
training, who could be a different person for each
execution. Id. 287.
situated in the control room during the execution,
they play no role in injecting the drugs. That task is
performed by an executioner without medical
training, who could be a different person for each
execution. Id. 287.
From the control room vantage point, the
execution team has only limited ability to monitor
the condemned inmate. Team members are unable
to monitor any catheter sites on the side of the
inmate facing away from the control room window.
The Warden and Deputy Warden are the only
personnel in the execution chamber, but are at least
ten feet from the gurney. Id. 276-77. The warden
conceded that he cannot see both catheter sites, and
execution team has only limited ability to monitor
the condemned inmate. Team members are unable
to monitor any catheter sites on the side of the
inmate facing away from the control room window.
The Warden and Deputy Warden are the only
personnel in the execution chamber, but are at least
ten feet from the gurney. Id. 276-77. The warden
conceded that he cannot see both catheter sites, and
17
in any event, visual observation of the catheter sites
is insufficient to determine whether a catheter is
improperly inserted. Id. 340. The warden also
stated that he will be too far away from the inmate
to discern subtle signs of consciousness, such as
tearing, id. 284, and Petitioners’ expert
anesthesiologist testified that observation from ten
feet away, even if performed by a medically trained
individual, is ineffective to determine consciousness.
Id. 442, 462-63.
Untrained Personnel. The only medically trained
personnel who have any role in the execution process
are an EMT and a phlebotomist who insert the IVs.
Although EMTs and phlebotomists are facially
qualified to insert IV catheters, they have no
experience with the numerous other tasks performed
in an execution, including preparing the drugs,
making the calculations necessary to prepare a
three-gram dose of thiopental, detecting signs of
inadequate anesthesia, or reacting to foreseeable
contingencies such as a compromised IV line. Id.
529-30. EMTs and phlebotomists have only minimal
medical expertise. Under Kentucky law, they are
permitted to function only under the direct
supervision of a doctor. Ky. Rev. Stat. § 311A.170
(EMT paramedic).10 The Warden never inquired into
these team members’ ability to carry out the
execution protocol and react to foreseeable problems.
He simply assumed that “[t]hey probably at least
have some medical experience in being able to”
prepare doses of intravenous anesthetic, and that
personnel who have any role in the execution process
are an EMT and a phlebotomist who insert the IVs.
Although EMTs and phlebotomists are facially
qualified to insert IV catheters, they have no
experience with the numerous other tasks performed
in an execution, including preparing the drugs,
making the calculations necessary to prepare a
three-gram dose of thiopental, detecting signs of
inadequate anesthesia, or reacting to foreseeable
contingencies such as a compromised IV line. Id.
529-30. EMTs and phlebotomists have only minimal
medical expertise. Under Kentucky law, they are
permitted to function only under the direct
supervision of a doctor. Ky. Rev. Stat. § 311A.170
(EMT paramedic).10 The Warden never inquired into
these team members’ ability to carry out the
execution protocol and react to foreseeable problems.
He simply assumed that “[t]hey probably at least
have some medical experience in being able to”
prepare doses of intravenous anesthetic, and that
10 Petitioners are aware of no licensing requirements in
Kentucky for phlebotomists.
Kentucky for phlebotomists.
18
“given the gravity of the situation that is occurring,
those people know what to do.” JA 312, 279.
The warden and deputy warden have ultimate
authority for the execution procedure. Id. 262. Yet
they have no understanding of the foreseeable
problems that can arise during the procedure or how
to react to them. For instance, the warden admitted
“I honestly don’t know what you’d look for” to tell the
difference between an inmate who is paralyzed but
conscious and an inmate who is anesthetized. Id.
authority for the execution procedure. Id. 262. Yet
they have no understanding of the foreseeable
problems that can arise during the procedure or how
to react to them. For instance, the warden admitted
“I honestly don’t know what you’d look for” to tell the
difference between an inmate who is paralyzed but
conscious and an inmate who is anesthetized. Id.
283. Likewise, when asked what knowledge he has
of anesthesia awareness or conscious paralysis,
Deputy Warden Pershing responded, “none.” Id. 336.
In addition, although the warden is responsible for
deciding what to do if the primary IV line becomes
compromised, he testified that he would simply
direct the execution team to move to the backup line,
without first inquiring whether the IV problem
prevented the full dose of thiopental from being
injected. Id. 279-80, 318. This would be the worst
possible way to react in this situation, as it creates
the danger that the inmate will be given an
insufficient amount of thiopental through the first,
compromised IV, but then will receive the full doses
of pancuronium and potassium through the backup
of anesthesia awareness or conscious paralysis,
Deputy Warden Pershing responded, “none.” Id. 336.
In addition, although the warden is responsible for
deciding what to do if the primary IV line becomes
compromised, he testified that he would simply
direct the execution team to move to the backup line,
without first inquiring whether the IV problem
prevented the full dose of thiopental from being
injected. Id. 279-80, 318. This would be the worst
possible way to react in this situation, as it creates
the danger that the inmate will be given an
insufficient amount of thiopental through the first,
compromised IV, but then will receive the full doses
of pancuronium and potassium through the backup
IV.11
11 Although the protocol provides that the team will administer
additional thiopental if the inmate does not “appear”
unconscious to the warden after 60 seconds, that instruction
will not prevent an error of this kind. If the inmate receives
enough thiopental through the compromised IV to be lightly
anesthetized, the inmate will “appear” unconscious. If the team
realizes that the IV is compromised after that point, Haeberlin
11 Although the protocol provides that the team will administer
additional thiopental if the inmate does not “appear”
unconscious to the warden after 60 seconds, that instruction
will not prevent an error of this kind. If the inmate receives
enough thiopental through the compromised IV to be lightly
anesthetized, the inmate will “appear” unconscious. If the team
realizes that the IV is compromised after that point, Haeberlin
19
No Monitoring. No one on the execution team
examines the IV site for problems after the IV is
inserted. Id. 977. Because the IV team leaves the
execution chamber before the chemicals are injected,
the Warden and a Deputy are the only officials in the
room with the inmate. Id. 977-78, 328-29, 276. But
even they are too far away from the inmate to
observe IV problems, and are unqualified to make
medical assessments in all events. See supra pages
16 to 17. And while the executioner is expected to
determine from the control room whether the drugs
are being injected into the vein by the feel of the
syringe, he has no experience or training in “sensing
how much resistance there is to the injection of the
fluid.” JA 462-63.
examines the IV site for problems after the IV is
inserted. Id. 977. Because the IV team leaves the
execution chamber before the chemicals are injected,
the Warden and a Deputy are the only officials in the
room with the inmate. Id. 977-78, 328-29, 276. But
even they are too far away from the inmate to
observe IV problems, and are unqualified to make
medical assessments in all events. See supra pages
16 to 17. And while the executioner is expected to
determine from the control room whether the drugs
are being injected into the vein by the feel of the
syringe, he has no experience or training in “sensing
how much resistance there is to the injection of the
fluid.” JA 462-63.
Moreover, Kentucky makes no meaningful effort
to monitor the inmate to ensure that he or she is
unconscious throughout the execution. This is a
particularly dangerous omission given the paralyzing
effect of pancuronium. The testimony was
undisputed that effective monitoring requires
trained personnel to monitor the inmate from the
same room, aided by machines, such as an EKG
machine, BIS Monitor, EEG machine, or a blood
pressure cuff. Id. 420-23, 602. The DOC does not
use trained personnel to monitor anesthetic depth, or
provide equipment designed to aid in that
assessment. Id. 764.
to monitor the inmate to ensure that he or she is
unconscious throughout the execution. This is a
particularly dangerous omission given the paralyzing
effect of pancuronium. The testimony was
undisputed that effective monitoring requires
trained personnel to monitor the inmate from the
same room, aided by machines, such as an EKG
machine, BIS Monitor, EEG machine, or a blood
pressure cuff. Id. 420-23, 602. The DOC does not
use trained personnel to monitor anesthetic depth, or
provide equipment designed to aid in that
assessment. Id. 764.
would instruct them to continue with the backup IV line, JA
279-80, 318 – without first administering any additional
thiopental to ensure the necessary general anesthesia.
279-80, 318 – without first administering any additional
thiopental to ensure the necessary general anesthesia.
20
No Execution Training. Execution team members
are not given special training to perform executions,
except for a monthly practice session that involves
setting practice IVs into other team members. Id.
190, 984. Execution personnel do not rehearse
responses to problems that could occur during
executions, or practice preparing the thiopental and
loading them into syringes. Nor are they given any
instruction on the effects of the drugs.
are not given special training to perform executions,
except for a monthly practice session that involves
setting practice IVs into other team members. Id.
190, 984. Execution personnel do not rehearse
responses to problems that could occur during
executions, or practice preparing the thiopental and
loading them into syringes. Nor are they given any
instruction on the effects of the drugs.
3. The Experience Of Other States With
Execution Procedures Like Kentucky.
Having performed only one execution since
Kentucky adopted lethal injection in 1998,
Kentucky’s execution personnel do not have an
extensive track record of implementing the three-
drug protocol. The experience of other States that
perform executions more frequently, such as
Missouri, Florida, Ohio, Tennessee, and California,
reveals that procedural deficiencies very similar to
those in Kentucky have led directly to botched
executions and insufficient induction of general
anesthesia. Their experience demonstrates that the
combination of the dangerous three-drug protocol
with complex administration procedures and poorly
trained personnel renders foreseeable errors and
botched executions inevitable over time.
Execution Procedures Like Kentucky.
Having performed only one execution since
Kentucky adopted lethal injection in 1998,
Kentucky’s execution personnel do not have an
extensive track record of implementing the three-
drug protocol. The experience of other States that
perform executions more frequently, such as
Missouri, Florida, Ohio, Tennessee, and California,
reveals that procedural deficiencies very similar to
those in Kentucky have led directly to botched
executions and insufficient induction of general
anesthesia. Their experience demonstrates that the
combination of the dangerous three-drug protocol
with complex administration procedures and poorly
trained personnel renders foreseeable errors and
botched executions inevitable over time.
The most recent example is Florida’s execution of
Angel Diaz. The execution personnel inserted both
the primary and backup IVs improperly, and both
catheters perforated Diaz’s veins. The infiltration
occurred even though the personnel saw the flash of
blood that the Kentucky protocol describes as the
Angel Diaz. The execution personnel inserted both
the primary and backup IVs improperly, and both
catheters perforated Diaz’s veins. The infiltration
occurred even though the personnel saw the flash of
blood that the Kentucky protocol describes as the
21
appropriate indicator of catheter reliability. See
Summary of the Findings of the Dep’t of Corrections
Task Force Regarding the Dec. 13, 2006 Execution of
Angel Diaz, at 5 (Dec. 20, 2006) (“Diaz Findings”).
The execution team, injecting the drugs from another
room as in Kentucky, attempted to inject the
thiopental into the first IV. When they experienced
difficulty injecting the dose, they switched to the
second IV and injected the pancuronium and
potassium, id. – precisely what Warden Haeberlin
testified he would do in this situation, JA 279-80,
318. As a result, Diaz apparently received an
inadequate dose of thiopental, and exhibited the
gasping behavior consistent with partial paralysis
from the pancuronium until he died 34 minutes
later. Proceedings of the Governor’s Comm’n on
Lethal Injection, at 97-98, 101 (Feb. 12, 2007).
Despite these difficulties, the execution team
continued to attempt to push additional doses of each
of the drugs into the two infiltrated IVs. See Diaz
Findings, at 5. An autopsy revealed 12-inch
chemical burns on each arm where the drugs were
injected into the tissue surrounding the vein. See
The Governor’s Comm’n on Administration of Lethal
Injection, II Record of Proceedings: Comm’n Meeting
Packets (Feb. 12, 2007) (Postmortem Exam of Angel
Diaz, at 1). As in Kentucky, at least one team
member was present in the chamber with Diaz, but
no team members noticed any signs of the
infiltration that occurred, and no team members
knew how to react when the first IV became
compromised. See Diaz Findings at 5.
22
inadequate dose of thiopental, and exhibited the
gasping behavior consistent with partial paralysis
from the pancuronium until he died 34 minutes
later. Proceedings of the Governor’s Comm’n on
Lethal Injection, at 97-98, 101 (Feb. 12, 2007).
Despite these difficulties, the execution team
continued to attempt to push additional doses of each
of the drugs into the two infiltrated IVs. See Diaz
Findings, at 5. An autopsy revealed 12-inch
chemical burns on each arm where the drugs were
injected into the tissue surrounding the vein. See
The Governor’s Comm’n on Administration of Lethal
Injection, II Record of Proceedings: Comm’n Meeting
Packets (Feb. 12, 2007) (Postmortem Exam of Angel
Diaz, at 1). As in Kentucky, at least one team
member was present in the chamber with Diaz, but
no team members noticed any signs of the
infiltration that occurred, and no team members
knew how to react when the first IV became
compromised. See Diaz Findings at 5.
22
Similarly, during the Ohio execution of Joseph
Clark, execution team members who, like Kentucky
team members, had paramedic-level training, were
unable to place reliable IVs. JA 785. After the
execution began, Clark sat up and said “It don’t
work.” Execution team members then closed the
curtains and spent 40 minutes attempting to re-place
the IVs, as Clark moaned from behind the curtains.
JA 782, 790. Ninety minutes after the execution
process began, the curtains opened to reveal Clark
dead. JA 787.
Clark, execution team members who, like Kentucky
team members, had paramedic-level training, were
unable to place reliable IVs. JA 785. After the
execution began, Clark sat up and said “It don’t
work.” Execution team members then closed the
curtains and spent 40 minutes attempting to re-place
the IVs, as Clark moaned from behind the curtains.
JA 782, 790. Ninety minutes after the execution
process began, the curtains opened to reveal Clark
dead. JA 787.
California has employed execution personnel who
are substantially more qualified than those used in
Kentucky – a combination of registered nurses and
EMTs, as well as a doctor observing the process and
recording vital signs – but nevertheless has
experienced six aberrant executions among the
eleven that it has performed by lethal injection.
Morales v. Tilton, 465 F. Supp. 2d 972, 975 (N.D.
Cal. 2006). As in Kentucky, team members did little
training for executions, and never practiced mixing
the thiopental. Id. at 979 & n.7. As a result, the
registered nurses – who, like EMTs and
phlebotomists, do not prepare IV anesthetics as part
of their daily responsibilities – became confused
while preparing the thiopental dose, and were unable
to follow the directions on the thiopental packaging.
Id. at 980. The nurses failed to set a backup IV line
in at least one execution. Despite awareness of the
problem, the execution personnel’s only response was
“sh-t does happen,” and the execution proceeded. Id.
at 979 & n.8. That execution took far longer than
usual and the inmate exhibited signs consistent with
are substantially more qualified than those used in
Kentucky – a combination of registered nurses and
EMTs, as well as a doctor observing the process and
recording vital signs – but nevertheless has
experienced six aberrant executions among the
eleven that it has performed by lethal injection.
Morales v. Tilton, 465 F. Supp. 2d 972, 975 (N.D.
Cal. 2006). As in Kentucky, team members did little
training for executions, and never practiced mixing
the thiopental. Id. at 979 & n.7. As a result, the
registered nurses – who, like EMTs and
phlebotomists, do not prepare IV anesthetics as part
of their daily responsibilities – became confused
while preparing the thiopental dose, and were unable
to follow the directions on the thiopental packaging.
Id. at 980. The nurses failed to set a backup IV line
in at least one execution. Despite awareness of the
problem, the execution personnel’s only response was
“sh-t does happen,” and the execution proceeded. Id.
at 979 & n.8. That execution took far longer than
usual and the inmate exhibited signs consistent with
23
insufficient anesthesia. Morales v. Hickman, 415 F.
Supp. 2d 1037, 1045 & n.13 (N.D. Cal. 2006), aff’d
per curiam, 438 F.3d 926 (9th Cir.), cert. denied, 546
U.S. 1163 (2006). Several other executed inmates
continued to breathe for far longer than they should
have if they had received the full dose of thiopental.
But the observing doctor and nurses, untrained in
anesthesia, did not recognize the significance of the
continued breathing. Morales, 465 F. Supp. 2d at
975.
Similar problems have plagued Missouri, where
prison officials delegated complete responsibility for
the execution procedures to a board-certified
surgeon. Missouri officials testified that they relied
on the medical expertise of the surgeon – expertise
they assumed he must have, just as Kentucky
officials have made assumptions about the EMT and
phlebotomist. Taylor v. Crawford, No. 05-4173-CVC,
2006 WL 1779035 at *7 (W.D. Mo. June 26, 2006),
rev’d, 487 F.3d 1072 (8th Cir. 2007), cert. pending.
The surgeon, who was unfamiliar with the
preparation of thiopental, prepared doses of the
anesthetic that were significantly lower than the
intended dose. Id. Because the inmates were given
pancuronium, there is no way to know, after the fact,
whether they received doses of anesthetic sufficient
to render them unconscious.
Finally, in Tennessee, the certified paramedic
technicians who are responsible for setting the
catheters and who are the only medically trained
personnel used in the execution were ignorant of the
many problems that can arise when injecting
intravenous anesthetics. A court found that this lack
technicians who are responsible for setting the
catheters and who are the only medically trained
personnel used in the execution were ignorant of the
many problems that can arise when injecting
intravenous anesthetics. A court found that this lack
24
of knowledge, together with the lack of additional
training led to the paramedics being “completely
unprepared” to perform “the actions they are
actually charged with performing.” Harbison, 2007
WL 2821230, at *3. And, like Warden Haeberlin,
Tennessee’s personnel were unaware that a flash of
blood in an IV is an unreliable indicator of a
successful insertion. Id. at *17. The court further
found that the execution team’s remote observation
of the inmate through closed-circuit television was
insufficient, particularly because infiltration can
elude visual observation. Id. at *19. These and
other failures in the procedures, the court concluded,
amounted to a “guarantee” that some executions
would be performed improperly. Id. at *18.
4. Less Dangerous Alternatives.
Petitioners presented substantial unrebutted
evidence at trial that alternative means of
accomplishing lethal injection “would carry a much
lower risk of causing pain or suffering, much lower
risk of an error in administration, much, much lower
risk of things going wrong.” JA 462. The DOC did
not dispute that these alternatives exist, or that they
would lessen the danger of pain. To the contrary, the
DOC’s expert agreed. Id. 627-28.
Petitioners presented substantial unrebutted
evidence at trial that alternative means of
accomplishing lethal injection “would carry a much
lower risk of causing pain or suffering, much lower
risk of an error in administration, much, much lower
risk of things going wrong.” JA 462. The DOC did
not dispute that these alternatives exist, or that they
would lessen the danger of pain. To the contrary, the
DOC’s expert agreed. Id. 627-28.
Because each of the drugs in the three-drug
formula is independently lethal, id. 492, 547,
pancuronium and potassium could be omitted, thus
eliminating the danger of conscious asphyxiation and
excruciating pain. Id. 445-46. The resulting
protocol, using thiopental (or another barbiturate) as
the sole lethal agent, would be far less sensitive to
formula is independently lethal, id. 492, 547,
pancuronium and potassium could be omitted, thus
eliminating the danger of conscious asphyxiation and
excruciating pain. Id. 445-46. The resulting
protocol, using thiopental (or another barbiturate) as
the sole lethal agent, would be far less sensitive to
25
error, and would allow any injection errors to be
detected and corrected without subjecting the inmate
to extreme suffering. Id. 462. The DOC’s expert, Dr.
Dershwitz, has even suggested elsewhere that
executing by means of an overdose of a barbiturate –
the same method used to euthanize animals – would
significantly lessen the risk of inhumane executions.
See Harbison, 2007 WL 2821230, at *3.12
Alternatively, the dangers arising from deficient
administration could be reduced by monitoring the
inmate’s anesthetic depth throughout the execution.
JA 422-23. Although pancuronium hides evidence of
consciousness, id. 418, personnel qualified to monitor
anesthetic depth, using appropriate equipment,
would be able to ensure that corrective measures are
taken if the inmate is not adequately anesthetized.
Id. 418-23, 438-40.
administration could be reduced by monitoring the
inmate’s anesthetic depth throughout the execution.
JA 422-23. Although pancuronium hides evidence of
consciousness, id. 418, personnel qualified to monitor
anesthetic depth, using appropriate equipment,
would be able to ensure that corrective measures are
taken if the inmate is not adequately anesthetized.
Id. 418-23, 438-40.
D.
Procedural History Of This Action.
Petitioners filed this action in the Franklin
Circuit Court on August 9, 2004 challenging the
chemicals and procedures Kentucky uses to carry out
lethal injection. Id. 10. Petitioners were granted
only limited discovery, and were not allowed to
depose members of Kentucky’s execution team. Tr.
195, 1248. At trial, Petitioners presented testimony
from 18 witnesses, including an expert
anesthesiologist, the Commissioner of the Kentucky
Department of Corrections, and a variety of other
Procedural History Of This Action.
Petitioners filed this action in the Franklin
Circuit Court on August 9, 2004 challenging the
chemicals and procedures Kentucky uses to carry out
lethal injection. Id. 10. Petitioners were granted
only limited discovery, and were not allowed to
depose members of Kentucky’s execution team. Tr.
195, 1248. At trial, Petitioners presented testimony
from 18 witnesses, including an expert
anesthesiologist, the Commissioner of the Kentucky
Department of Corrections, and a variety of other
12 Veterinarians use a long-acting barbiturate, pentobarbital, as
the predominant means of animal euthanasia because of its
simplicity and humaneness. JA 457-58.
the predominant means of animal euthanasia because of its
simplicity and humaneness. JA 457-58.
26
prison officials who had first-hand experience with
the execution process. The Commonwealth
presented testimony from two witnesses: the
Commissioner and an anesthesiologist.
On July 8, 2005, the trial court entered an order
upholding Kentucky’s lethal injection statute. JA
upholding Kentucky’s lethal injection statute. JA
754. As an initial matter, the trial court found that
Kentucky “did not conduct any scientific or medical
studies or consult any medical professionals
concerning the drugs and dosages to be injected into
the condemned.” Id. 760. It then addressed only two
claims of maladministration, finding that there was
a “minimal risk” that the drugs would be mixed
improperly, and that the executioners would have
only “minor difficulty” in locating a vein. Id. 761-62.
It made no findings concerning the training of
execution team members, the appropriateness of
Kentucky’s IV system (which requires the
executioner to be in a separate room from the
inmate), or the adequacy of Kentucky’s monitoring to
ensure that the condemned prisoner is adequately
anesthetized.
The trial court held that the Eighth Amendment
required Petitioners to demonstrate a “substantial
risk of wanton and unnecessary infliction of pain.”
Id. 759. The court found this standard unsatisfied,
concluding that Petitioners had “not demonstrated
by a preponderance of the evidence that Kentucky’s
method of execution by lethal injection inflicts
unnecessary physical pain,” and that the “Eighth
Amendment [does] not provide protection against all
pain, only cruel and unusual pain.” Id. 766.
Kentucky “did not conduct any scientific or medical
studies or consult any medical professionals
concerning the drugs and dosages to be injected into
the condemned.” Id. 760. It then addressed only two
claims of maladministration, finding that there was
a “minimal risk” that the drugs would be mixed
improperly, and that the executioners would have
only “minor difficulty” in locating a vein. Id. 761-62.
It made no findings concerning the training of
execution team members, the appropriateness of
Kentucky’s IV system (which requires the
executioner to be in a separate room from the
inmate), or the adequacy of Kentucky’s monitoring to
ensure that the condemned prisoner is adequately
anesthetized.
The trial court held that the Eighth Amendment
required Petitioners to demonstrate a “substantial
risk of wanton and unnecessary infliction of pain.”
Id. 759. The court found this standard unsatisfied,
concluding that Petitioners had “not demonstrated
by a preponderance of the evidence that Kentucky’s
method of execution by lethal injection inflicts
unnecessary physical pain,” and that the “Eighth
Amendment [does] not provide protection against all
pain, only cruel and unusual pain.” Id. 766.
27
Petitioners appealed to the Supreme Court of
Kentucky. In discussing the Eighth Amendment
standard, the court stated: “The method of execution
must not create a substantial risk of wanton or
unnecessary infliction of pain, torture or lingering
death,” and “the prohibition against cruel
punishment does not require a complete absence of
pain.” Id. 800, 805, 807. The court recognized that
“conflicting medical testimony prevents us from
stating categorically that a prisoner feels no pain,”
id. 807, but apparently found that a “substantial
risk” of pain was not present. The court therefore
concluded that “[t]the lethal injection method used in
Kentucky is not a violation of the Eighth
Amendment to the United States Constitution.” Id.
Kentucky. In discussing the Eighth Amendment
standard, the court stated: “The method of execution
must not create a substantial risk of wanton or
unnecessary infliction of pain, torture or lingering
death,” and “the prohibition against cruel
punishment does not require a complete absence of
pain.” Id. 800, 805, 807. The court recognized that
“conflicting medical testimony prevents us from
stating categorically that a prisoner feels no pain,”
id. 807, but apparently found that a “substantial
risk” of pain was not present. The court therefore
concluded that “[t]the lethal injection method used in
Kentucky is not a violation of the Eighth
Amendment to the United States Constitution.” Id.
SUMMARY OF ARGUMENT
The Eighth Amendment prohibits the
“unnecessary and wanton infliction of pain.” Gregg
The Eighth Amendment prohibits the
“unnecessary and wanton infliction of pain.” Gregg
v. Georgia, 428 U.S. 153, 173 (1976). In the capital
punishment context, the Eighth Amendment’s
prohibition on the “gratuitous infliction of suffering,”
id. at 183, requires States to avoid inflicting more
pain than is necessary to cause death.
This prohibition applies fully to the manner in
which a government carries out executions, not
merely to its choice of particular execution methods.
Even an execution method such as lethal injection
that is humane in theory can be carried out by
means of flawed or haphazard procedures that create
a foreseeable danger of inflicting severe pain in
actual practice. Performed repeatedly over time in
the absence of adequate safeguards, such a method
punishment context, the Eighth Amendment’s
prohibition on the “gratuitous infliction of suffering,”
id. at 183, requires States to avoid inflicting more
pain than is necessary to cause death.
This prohibition applies fully to the manner in
which a government carries out executions, not
merely to its choice of particular execution methods.
Even an execution method such as lethal injection
that is humane in theory can be carried out by
means of flawed or haphazard procedures that create
a foreseeable danger of inflicting severe pain in
actual practice. Performed repeatedly over time in
the absence of adequate safeguards, such a method
28
of execution will inevitably involve the infliction of
gratuitous pain in some executions. Inflicting
gratuitous pain on a subset of condemned prisoners
is no more tolerable than inflicting gratuitous pain
on all condemned prisoners. A State therefore
violates the Eighth Amendment when its execution
procedures create a significant and unnecessary risk
of inflicting severe pain that could be prevented by
the adoption of reasonable safeguards.
Kentucky’s three-drug lethal injection protocol
violates this bedrock Eighth Amendment
requirement. It is undisputed that a condemned
prisoner injected with pancuronium and potassium
will suffer torturous pain and agonizing death if the
prisoner has not been properly anesthetized – but
will be unable to alert anyone to this suffering, and
will appear serene and comfortable to the
executioners and other observers while enduring an
excruciating death. It is also undisputed that
Kentucky could easily eliminate the risk of such
suffering by forgoing the use of pancuronium and
potassium, and relying instead on a lethal dose of an
anesthetic such as thiopental or pentobarbital –
which will produce death in a matter of minutes.
The Commonwealth was unable to identify any
legitimate penological justification for persisting in
the use of the three-drug formula – or even for its
refusal to take the alternative step of monitoring the
anesthetic depth of executed prisoners.
violates this bedrock Eighth Amendment
requirement. It is undisputed that a condemned
prisoner injected with pancuronium and potassium
will suffer torturous pain and agonizing death if the
prisoner has not been properly anesthetized – but
will be unable to alert anyone to this suffering, and
will appear serene and comfortable to the
executioners and other observers while enduring an
excruciating death. It is also undisputed that
Kentucky could easily eliminate the risk of such
suffering by forgoing the use of pancuronium and
potassium, and relying instead on a lethal dose of an
anesthetic such as thiopental or pentobarbital –
which will produce death in a matter of minutes.
The Commonwealth was unable to identify any
legitimate penological justification for persisting in
the use of the three-drug formula – or even for its
refusal to take the alternative step of monitoring the
anesthetic depth of executed prisoners.
Kentucky’s ill-considered and haphazard lethal
injection procedures exacerbate the risk that some
condemned prisoners will suffer an excruciating
death. At each step, execution personnel are
injection procedures exacerbate the risk that some
condemned prisoners will suffer an excruciating
death. At each step, execution personnel are
29
required to perform complicated tasks for which they
have no expertise or training. The IV team must mix
thiopental from multiple kits, calculate the
appropriate dose, and load it into syringes. The
protocol requires the warden to use an unreliable
method to determine which IV site to use, and
neither he nor any other member of the execution
team is qualified or situated to discern signs of
consciousness which would signal that the inmate is
undergoing a torturous death. The executioner
injects the drugs from a remote location, determining
by feel alone, and without practice, whether the
injection is working. The physical layout of the
execution chamber makes monitoring the catheter
sites nearly impossible and renders injection errors
more likely. There is no effective observation of the
inmate, much less monitoring of anesthetic depth.
Nor does the team train for the many foreseeable
problems that have occurred in other States.
In the face of this evidence, the courts below erred
in upholding Kentucky’s lethal injection procedures.
In particular, both the Kentucky Supreme Court and
the trial court erred in holding that it was irrelevant
that the Commonwealth had alternative means
readily available which would eliminate the risk of
gratuitous and severe pain without compromising
any valid penological interests. In view of the
severity of the pain risked and the ease with which it
could be avoided, Petitioners should not have been
required to show a high likelihood that they would
suffer such pain in order to make out an Eighth
Amendment violation. In this regard, the Kentucky
courts further erred in focusing myopically on the
in upholding Kentucky’s lethal injection procedures.
In particular, both the Kentucky Supreme Court and
the trial court erred in holding that it was irrelevant
that the Commonwealth had alternative means
readily available which would eliminate the risk of
gratuitous and severe pain without compromising
any valid penological interests. In view of the
severity of the pain risked and the ease with which it
could be avoided, Petitioners should not have been
required to show a high likelihood that they would
suffer such pain in order to make out an Eighth
Amendment violation. In this regard, the Kentucky
courts further erred in focusing myopically on the
30
probability that Petitioners themselves would suffer
an agonizing death. The proper question is whether
repeated executions using the three-drug formula
and Kentucky’s inadequate procedures would
produce torturous deaths in at least some cases. The
answer to that question is plainly yes.
Therefore, this Court should reverse.
ARGUMENT
I. The Eighth Amendment Prohibits Execution
Procedures That Involve An Unnecessary Risk
of Excruciating Pain.
This Court has long recognized that the “evil[] of
most immediate concern to … the [Eighth]
Amendment,” Estelle v. Gamble, 429 U.S. 97, 103
(1976), is the infliction of “unnecessary” pain in the
course of carrying out a death sentence, Kemmler,
136 U.S. at 447. “By protecting even those convicted
of heinous crimes, the Eighth Amendment reaffirms
the duty of the government to respect the dignity of
all persons.” Roper v. Simmons, 543 U.S. 551, 560
(2005).
I. The Eighth Amendment Prohibits Execution
Procedures That Involve An Unnecessary Risk
of Excruciating Pain.
This Court has long recognized that the “evil[] of
most immediate concern to … the [Eighth]
Amendment,” Estelle v. Gamble, 429 U.S. 97, 103
(1976), is the infliction of “unnecessary” pain in the
course of carrying out a death sentence, Kemmler,
136 U.S. at 447. “By protecting even those convicted
of heinous crimes, the Eighth Amendment reaffirms
the duty of the government to respect the dignity of
all persons.” Roper v. Simmons, 543 U.S. 551, 560
(2005).
Although the methods of execution that most
concerned the Framers involved mutilation and
other barbarous practices, the Eighth Amendment
was never “intended to … prevent only an exact
repetition of history.” Weems v. United States, 217
concerned the Framers involved mutilation and
other barbarous practices, the Eighth Amendment
was never “intended to … prevent only an exact
repetition of history.” Weems v. United States, 217
U.S. 349, 373 (1910). Rather, “[t]he prohibition
against ‘cruel and unusual punishments, like other
expansive language in the Constitution, must be
interpreted according to its text, by considering
history, tradition and precedent, and with due regard
for its purpose and function in the constitutional
31
design. Simmons, 543 U.S. at 560. “To implement
this framework,” the Court has “established the
propriety and affirmed the necessity of referring to
‘evolving standards of decency that mark the
progress of a maturing society’” to determine when
punishments exceed constitutional limits. Id. at 56061
(quoting Trop v. Dulles, 356 U.S. 86, 100-01
(1958) (plurality opinion)).
against ‘cruel and unusual punishments, like other
expansive language in the Constitution, must be
interpreted according to its text, by considering
history, tradition and precedent, and with due regard
for its purpose and function in the constitutional
31
design. Simmons, 543 U.S. at 560. “To implement
this framework,” the Court has “established the
propriety and affirmed the necessity of referring to
‘evolving standards of decency that mark the
progress of a maturing society’” to determine when
punishments exceed constitutional limits. Id. at 56061
(quoting Trop v. Dulles, 356 U.S. 86, 100-01
(1958) (plurality opinion)).
Advancements in science have made it possible to
carry out a death sentence in a nearly painless
manner. And the States that impose death
sentences have, with near unanimity, adopted lethal
injection in order to make executions painless to the
condemned person. The Eighth Amendment’s
prohibition on the infliction of gratuitous pain would
be meaningless, however, if it did not extend to
methods of execution that, if performed properly, are
humane and constitutional, but that are bound to
inflict severe pain when insufficient care is taken to
assure that they are indeed performed properly.
carry out a death sentence in a nearly painless
manner. And the States that impose death
sentences have, with near unanimity, adopted lethal
injection in order to make executions painless to the
condemned person. The Eighth Amendment’s
prohibition on the infliction of gratuitous pain would
be meaningless, however, if it did not extend to
methods of execution that, if performed properly, are
humane and constitutional, but that are bound to
inflict severe pain when insufficient care is taken to
assure that they are indeed performed properly.
When a government chooses a method of execution
that is highly vulnerable to multiple errors, any one
of which will result in the infliction of agonizing
pain, it incurs an Eighth Amendment obligation to
provide adequate, practicable safeguards against
those errors. This is the inescapable implication of
the Amendment’s command that the punishments
adopted by American governments “must not involve
the unnecessary and wanton infliction of pain.”
Gregg, 428 U.S. at 173 (plurality opinion). By
choosing procedures that inevitably involve the
infliction of gratuitous pain in some executions, they
disregard the “principle of civilized treatment
that is highly vulnerable to multiple errors, any one
of which will result in the infliction of agonizing
pain, it incurs an Eighth Amendment obligation to
provide adequate, practicable safeguards against
those errors. This is the inescapable implication of
the Amendment’s command that the punishments
adopted by American governments “must not involve
the unnecessary and wanton infliction of pain.”
Gregg, 428 U.S. at 173 (plurality opinion). By
choosing procedures that inevitably involve the
infliction of gratuitous pain in some executions, they
disregard the “principle of civilized treatment
32
guaranteed by the Eighth Amendment.” Trop v.
Dulles, 356 U.S. 86, 99 (1958) (plurality opinion).
Therefore, a method of execution is administered
unconstitutionally if the procedures in question
impose a significant and unnecessary risk of severe
pain that could be prevented by the adoption of
reasonable safeguards or alternative procedures.
A. The Eighth Amendment ProhibitsPunishments That “UnnecessaryCruelty.”
Involve
Involve
The Eighth Amendment requires the States, in
carrying out death sentences, to avoid inflicting pain
beyond what is necessary to cause death. This Court
first considered the constitutionality of a method of
execution in the late 19th century, and since then, it
has consistently held that the Eighth Amendment
prohibits punishments that involve unnecessary
pain. In Wilkerson v. Utah, 99 U.S. 130, 135-36
(1878), the Court stated that “it is safe to affirm that
punishments of torture, such as those mentioned by
the commentator referred to, and all others in the
same line of unnecessary cruelty, are forbidden by
that amendment to the Constitution.” The Court
elaborated the prohibition in In re Kemmler,
explaining that “[p]unishments are cruel when they
involve torture or a lingering death …. [The
Amendment] implies … something inhuman and
barbarous, something more than the mere
extinguishment of life.” 136 U.S. at 447; see also
Weems, 217 U.S. at 409 (White, J., dissenting) (“that
word [cruel] manifestly was intended to forbid the
resort to barbarous and unnecessary methods of
carrying out death sentences, to avoid inflicting pain
beyond what is necessary to cause death. This Court
first considered the constitutionality of a method of
execution in the late 19th century, and since then, it
has consistently held that the Eighth Amendment
prohibits punishments that involve unnecessary
pain. In Wilkerson v. Utah, 99 U.S. 130, 135-36
(1878), the Court stated that “it is safe to affirm that
punishments of torture, such as those mentioned by
the commentator referred to, and all others in the
same line of unnecessary cruelty, are forbidden by
that amendment to the Constitution.” The Court
elaborated the prohibition in In re Kemmler,
explaining that “[p]unishments are cruel when they
involve torture or a lingering death …. [The
Amendment] implies … something inhuman and
barbarous, something more than the mere
extinguishment of life.” 136 U.S. at 447; see also
Weems, 217 U.S. at 409 (White, J., dissenting) (“that
word [cruel] manifestly was intended to forbid the
resort to barbarous and unnecessary methods of
33
bodily torture in executing even the penalty of
death”).
In more modern formulations, the Court has
continued to rely on the concept of “unnecessary”
pain, stating that “[t]he traditional humanity of
modern Anglo-American law forbids the infliction of
unnecessary pain in the execution of the death
sentence.” Louisiana ex rel. Francis v. Resweber,
329 U.S. 459, 463 (1947). In its most recent
restatement, the Court explained that “the
punishment must not involve the unnecessary and
wanton infliction of pain.” Gregg, 428 U.S. at 173
(plurality opinion) (citing Weems and Wilkerson).
continued to rely on the concept of “unnecessary”
pain, stating that “[t]he traditional humanity of
modern Anglo-American law forbids the infliction of
unnecessary pain in the execution of the death
sentence.” Louisiana ex rel. Francis v. Resweber,
329 U.S. 459, 463 (1947). In its most recent
restatement, the Court explained that “the
punishment must not involve the unnecessary and
wanton infliction of pain.” Gregg, 428 U.S. at 173
(plurality opinion) (citing Weems and Wilkerson).
Because the Eighth Amendment “is not fastened
to the obsolete but may acquire meaning as public
opinion becomes enlightened by a humane justice,”
Weems, 217 U.S. at 377, the prohibition on methods
of execution that “involve the unnecessary and
wanton infliction of pain” is not static in scope or
fixed to specific practices. Rather, whether a method
involves “unnecessary pain” must be determined in
light of “the evolving standards of decency that mark
the progress of a maturing society,” Simmons, 543
to the obsolete but may acquire meaning as public
opinion becomes enlightened by a humane justice,”
Weems, 217 U.S. at 377, the prohibition on methods
of execution that “involve the unnecessary and
wanton infliction of pain” is not static in scope or
fixed to specific practices. Rather, whether a method
involves “unnecessary pain” must be determined in
light of “the evolving standards of decency that mark
the progress of a maturing society,” Simmons, 543
U.S. at 561 (quotation marks omitted), as well as the
means available to “extinguish[] life humanely,”
Resweber, 329 U.S. at 464 (plurality opinion). The
Gregg Court explicitly noted the evolving nature of
what constitutes “unnecessary pain,” invoking
Justice Powell’s discussion in Furman v. Georgia of
execution methods. Gregg, 428 U.S. at 171 (citing
Furman v. Georgia, 408 U.S. 238, 429-430 (1972)
(Powell, J., dissenting, joined by Burger, C.J., and
Blackmun and Rehnquist, JJ.). In Furman, Justice
34
Powell, joined by three other Justices, reasoned that
methods of execution that were “tolerate[d]” at the
time of the founding would be enjoined as
unconstitutional today, because “no court would
approve any method of implementation of the death
sentence found to involve unnecessary cruelty in
light of presently available alternatives.” 408 U.S.
238, 430 (1972) (Powell, J., dissenting) (emphasis
added). Determining whether a method of execution
involves unnecessary cruelty, in turn, “would call for
a discriminating evaluation of [the] particular
means” of execution, id., in light of the amount of
pain inflicted, whether civilized society could
“tolerate” the imposition of such pain, and the ability
to prevent that pain by adopting “presently available
alternatives.”
means available to “extinguish[] life humanely,”
Resweber, 329 U.S. at 464 (plurality opinion). The
Gregg Court explicitly noted the evolving nature of
what constitutes “unnecessary pain,” invoking
Justice Powell’s discussion in Furman v. Georgia of
execution methods. Gregg, 428 U.S. at 171 (citing
Furman v. Georgia, 408 U.S. 238, 429-430 (1972)
(Powell, J., dissenting, joined by Burger, C.J., and
Blackmun and Rehnquist, JJ.). In Furman, Justice
34
Powell, joined by three other Justices, reasoned that
methods of execution that were “tolerate[d]” at the
time of the founding would be enjoined as
unconstitutional today, because “no court would
approve any method of implementation of the death
sentence found to involve unnecessary cruelty in
light of presently available alternatives.” 408 U.S.
238, 430 (1972) (Powell, J., dissenting) (emphasis
added). Determining whether a method of execution
involves unnecessary cruelty, in turn, “would call for
a discriminating evaluation of [the] particular
means” of execution, id., in light of the amount of
pain inflicted, whether civilized society could
“tolerate” the imposition of such pain, and the ability
to prevent that pain by adopting “presently available
alternatives.”
B. States Must Administer Their Execution
Procedures In A Manner That Does Not
Involve Unnecessary Pain.
A corollary to the prohibition of execution methods
that involve unnecessary pain is that governments
must carry out executions in a manner that avoids
the needless infliction of pain. The guarantee of an
execution free from unnecessary pain would be
illusory if the Constitution permitted a theoretically
humane method to be implemented in a manner that
inflicted excruciating pain in practice. Bethea v.
Crouse, 417 F.2d 504, 507-08 (10th Cir. 1969) (citing
Resweber as standing for the proposition that
“[c]ruel and unusual punishment may be inflicted by
… the inhumane execution of a permissible
penalty”).
Procedures In A Manner That Does Not
Involve Unnecessary Pain.
A corollary to the prohibition of execution methods
that involve unnecessary pain is that governments
must carry out executions in a manner that avoids
the needless infliction of pain. The guarantee of an
execution free from unnecessary pain would be
illusory if the Constitution permitted a theoretically
humane method to be implemented in a manner that
inflicted excruciating pain in practice. Bethea v.
Crouse, 417 F.2d 504, 507-08 (10th Cir. 1969) (citing
Resweber as standing for the proposition that
“[c]ruel and unusual punishment may be inflicted by
… the inhumane execution of a permissible
penalty”).
35
This obligation applies equally when a
government chooses a method of execution that is not
inherently inhumane if it is performed properly, but
that will involve severe pain if performed improperly.
When a method of execution is administered in a
flawed manner that creates a foreseeable danger of
inflicting severe pain, that method, performed
repeatedly over time, will inflict unnecessary pain on
a subset of executed inmates. The foreseeable
infliction of unnecessary pain on some condemned
inmates cannot be any more tolerable under the
Eighth Amendment than the infliction of
unnecessary pain on all condemned inmates.
Execution procedures that foreseeably inflict severe
but preventable pain conflict with the essential
values the Eighth Amendment seeks to preserve.
Therefore, the Eighth Amendment obligates the
government to carry out executions in a manner that
avoids creating an unnecessary risk of pain with
respect to individual inmates.
government chooses a method of execution that is not
inherently inhumane if it is performed properly, but
that will involve severe pain if performed improperly.
When a method of execution is administered in a
flawed manner that creates a foreseeable danger of
inflicting severe pain, that method, performed
repeatedly over time, will inflict unnecessary pain on
a subset of executed inmates. The foreseeable
infliction of unnecessary pain on some condemned
inmates cannot be any more tolerable under the
Eighth Amendment than the infliction of
unnecessary pain on all condemned inmates.
Execution procedures that foreseeably inflict severe
but preventable pain conflict with the essential
values the Eighth Amendment seeks to preserve.
Therefore, the Eighth Amendment obligates the
government to carry out executions in a manner that
avoids creating an unnecessary risk of pain with
respect to individual inmates.
A plurality of this Court acknowledged this
obligation in Resweber, stating that “we … assume
that the state officials carried out their [execution]
duties … in a careful and humane manner.” 329
obligation in Resweber, stating that “we … assume
that the state officials carried out their [execution]
duties … in a careful and humane manner.” 329
U.S. at 462 (emphasis added). To be sure, the Eighth
Amendment does not require States to prevent
accidents that occur even though prison officials
acted with appropriate care – in other words,
accidents “for which no man is to blame.” Id. But it
does require prison officials to act “in a careful and
humane manner” to minimize foreseeable risks of
severe pain. Id. Thus, as Justice Frankfurter
suggested in his decisive concurrence in Resweber,
36
while an “innocent misadventure,” id. at 470, did not
render Francis’s execution unconstitutional, “a
hypothetical situation, which assumes a series of
abortive attempts at electrocution … would … raise
different questions.” Id. at 471. A State’s unjustified
failure to minimize the danger of severe pain created
by its execution procedures will foreseeably result in
botched executions, thereby predictably inflicting
suffering on the affected inmates. Such failure
“involve[s] the unnecessary and wanton infliction of
pain.”13 Gregg, 428 U.S. at 173 (plurality opinion)
Amendment does not require States to prevent
accidents that occur even though prison officials
acted with appropriate care – in other words,
accidents “for which no man is to blame.” Id. But it
does require prison officials to act “in a careful and
humane manner” to minimize foreseeable risks of
severe pain. Id. Thus, as Justice Frankfurter
suggested in his decisive concurrence in Resweber,
36
while an “innocent misadventure,” id. at 470, did not
render Francis’s execution unconstitutional, “a
hypothetical situation, which assumes a series of
abortive attempts at electrocution … would … raise
different questions.” Id. at 471. A State’s unjustified
failure to minimize the danger of severe pain created
by its execution procedures will foreseeably result in
botched executions, thereby predictably inflicting
suffering on the affected inmates. Such failure
“involve[s] the unnecessary and wanton infliction of
pain.”13 Gregg, 428 U.S. at 173 (plurality opinion)
C. Numerous Lower Courts Have Held That
Unnecessary Risks Of Pain Are
Unconstitutional.
Although this Court’s precedents recognize that
how an execution is carried out is constitutionally
relevant, the Court has never had occasion to
articulate the precise standard that governs such an
analysis. The lower courts have grappled with these
issues in light of the widespread evidence of
maladministration of lethal injection. Many of these
courts have interpreted Gregg’s prohibition on
Unnecessary Risks Of Pain Are
Unconstitutional.
Although this Court’s precedents recognize that
how an execution is carried out is constitutionally
relevant, the Court has never had occasion to
articulate the precise standard that governs such an
analysis. The lower courts have grappled with these
issues in light of the widespread evidence of
maladministration of lethal injection. Many of these
courts have interpreted Gregg’s prohibition on
13 Several federal and state courts have recognized the
obligation to exercise proper care to ensure that executions are
performed humanely. See, e.g., Campbell v. Wood, 18 F.3d 662,
687 & n.17 (9th Cir. 1994) (execution procedure constitutional
because “risk [of pain] has been minimized as much as
possible”); Bethea v. Crouse, 417 F.2d 504, 507-08 (10th Cir.
1969) (Constitution does not permit inhumane implementation
of theoretically humane punishment); Malicoat v. State, 137
P.3d 1234, 1237 (Okla. Crim. App. 2006) (execution procedures
constitutional if State takes “appropriate precautions and
rel[ies] upon adequate training, skill, and care in doing the
job”).
obligation to exercise proper care to ensure that executions are
performed humanely. See, e.g., Campbell v. Wood, 18 F.3d 662,
687 & n.17 (9th Cir. 1994) (execution procedure constitutional
because “risk [of pain] has been minimized as much as
possible”); Bethea v. Crouse, 417 F.2d 504, 507-08 (10th Cir.
1969) (Constitution does not permit inhumane implementation
of theoretically humane punishment); Malicoat v. State, 137
P.3d 1234, 1237 (Okla. Crim. App. 2006) (execution procedures
constitutional if State takes “appropriate precautions and
rel[ies] upon adequate training, skill, and care in doing the
job”).
37
punishments that “involve the unnecessary and
wanton infliction of pain” to prohibit execution
procedures that involve an “unnecessary risk” of
pain.
For instance, in Morales v. Tilton, the district
court framed the constitutional question as whether
“California’s lethal-injection protocol – as actually
administered in practice – create[s] an undue and
unnecessary risk that an inmate will suffer pain so
extreme that it offends the Eighth Amendment.” 465
court framed the constitutional question as whether
“California’s lethal-injection protocol – as actually
administered in practice – create[s] an undue and
unnecessary risk that an inmate will suffer pain so
extreme that it offends the Eighth Amendment.” 465
F. Supp. 2d at 974 (emphasis added); see also Cooper
v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (a
plaintiff must show an “unnecessary risk of
unconstitutional pain or suffering”). Applying this
analysis, the district court found that California’s
procedures were unconstitutional because (1) the
amount of pain involved if the procedures were
implemented improperly would be “unconscionable”;
(2) the procedures suffered from severe deficiencies
that “resulted in an undue and unnecessary risk of
an Eighth Amendment violation”; and (3) these risks
would be preventable through the application of an
“appropriate degree of care and professionalism.”
Morales, 465 F. Supp. 2d at 977, 974, 981-83.
Other courts have similarly held that plaintiffs
can prevail by demonstrating that lethal injection
procedures subject them to an unnecessary risk of
severe pain. See, e.g., Cooey v. Taft, No. 2:04-CV1156,
2007 WL 2607583, at *4 (S.D. Ohio Sept. 5,
2007) (stating that the “flaws” in the execution
procedures that created an “unacceptable and
unnecessary … risk of violating the Eighth
Amendment[] … are readily fixable”); Brown v. Beck,
v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) (a
plaintiff must show an “unnecessary risk of
unconstitutional pain or suffering”). Applying this
analysis, the district court found that California’s
procedures were unconstitutional because (1) the
amount of pain involved if the procedures were
implemented improperly would be “unconscionable”;
(2) the procedures suffered from severe deficiencies
that “resulted in an undue and unnecessary risk of
an Eighth Amendment violation”; and (3) these risks
would be preventable through the application of an
“appropriate degree of care and professionalism.”
Morales, 465 F. Supp. 2d at 977, 974, 981-83.
Other courts have similarly held that plaintiffs
can prevail by demonstrating that lethal injection
procedures subject them to an unnecessary risk of
severe pain. See, e.g., Cooey v. Taft, No. 2:04-CV1156,
2007 WL 2607583, at *4 (S.D. Ohio Sept. 5,
2007) (stating that the “flaws” in the execution
procedures that created an “unacceptable and
unnecessary … risk of violating the Eighth
Amendment[] … are readily fixable”); Brown v. Beck,
38
No. 06 CT 3018, 2006 WL 3914717, at *8 (E.D.N.C.
Apr. 7, 2006); Evans v. Saar, 412 F. Supp. 2d 519,
524 (D. Md. 2006) (“A court must inquire whether an
inmate facing execution has shown that he is subject
to an unnecessary risk of unconstitutional pain or
suffering”) (internal quotation marks omitted); see
also LaGrand v. Stewart, 173 F.3d 1144, 1148-49
(9th Cir. 1999). These courts have determined that
the “unnecessary risk” standard provides a workable
framework for evaluating the evidence of improper
administration of execution procedures in light of the
long-standing prohibition on the infliction of
unnecessary pain.
D. The Eighth Amendment Requires States
To Remedy Significant And Unnecessary
Risks of Severe Pain.
The unnecessary risk analysis is a straightforward
one that evaluates the risk in the context in which it
arises. The analysis must include an assessment of
To Remedy Significant And Unnecessary
Risks of Severe Pain.
The unnecessary risk analysis is a straightforward
one that evaluates the risk in the context in which it
arises. The analysis must include an assessment of
(a) the severity of pain risked, (b) the likelihood of
that pain occurring, and (c) the extent to which
alternative means are feasible, either by modifying
existing execution procedures or adopting alternative
procedures. An execution procedure creates
unnecessary risk where, taken as a whole, it
presents a significant risk of causing severe pain
that could be avoided through the use of a reasonably
available alternative or safeguard.
The unnecessary risk standard is grounded in
common sense – States should not be allowed
needlessly to engage in practices that risk
substantial and gratuitous pain – but it also flows
that pain occurring, and (c) the extent to which
alternative means are feasible, either by modifying
existing execution procedures or adopting alternative
procedures. An execution procedure creates
unnecessary risk where, taken as a whole, it
presents a significant risk of causing severe pain
that could be avoided through the use of a reasonably
available alternative or safeguard.
The unnecessary risk standard is grounded in
common sense – States should not be allowed
needlessly to engage in practices that risk
substantial and gratuitous pain – but it also flows
39
from the Eighth Amendment principles articulated
in Roper v. Simmons and the other precedent
discussed above. Today, nearly every State that
carries out the death penalty requires an
anesthetized death. See supra page 7 (noting that
lethal injection is used in every State that has the
death penalty save one). Electrocutions, hangings
and gassings have all but disappeared in practice,
and have been formally abolished in many States.
See supra pages 2 to 4. Thus, there is today an
undeniable “national consensus” that executions
must be essentially painless. Simmons, 543 U.S. at
564. Not every State has lived up to this standard in
practice. But the widespread adoption of lethal
injection demonstrates that “contemporary
standards of decency” require an anesthetized death.
Id. at 562.
A lethal injection process that creates a significant
and avoidable risk that an inmate will suffer severe
pain is inconsistent with those contemporary
standards of decency. Or put in the converse,
contemporary standards of decency do not allow a
State to ignore a significant and unnecessary risk
that its chosen method of execution will cause severe
pain.
practice. But the widespread adoption of lethal
injection demonstrates that “contemporary
standards of decency” require an anesthetized death.
Id. at 562.
A lethal injection process that creates a significant
and avoidable risk that an inmate will suffer severe
pain is inconsistent with those contemporary
standards of decency. Or put in the converse,
contemporary standards of decency do not allow a
State to ignore a significant and unnecessary risk
that its chosen method of execution will cause severe
pain.
The unnecessary risk standard requires a proper
measure of care, but does not require a State to
eliminate every risk, no matter how small and
unpredictable. An insignificant and unforeseeable
risk, particularly where the harm is minor and/or
difficult to remedy, will not violate the Constitution.
Thus, a “latent” problem with Louisiana’s
electrocution equipment, discernable only after the
measure of care, but does not require a State to
eliminate every risk, no matter how small and
unpredictable. An insignificant and unforeseeable
risk, particularly where the harm is minor and/or
difficult to remedy, will not violate the Constitution.
Thus, a “latent” problem with Louisiana’s
electrocution equipment, discernable only after the
40
switch was flipped, was the type of “unforeseeable
accident” for which “no man is to blame,” and did not
violate the Eighth Amendment. Resweber, 329 U.S.
at 460, 462, 464. That type of freak, unforeseeable
occurrence does not represent an unnecessary risk
for Eighth Amendment purposes.
Likewise, it should be plain that the unnecessary
risk standard takes into account appropriate
penological considerations. Most importantly, a
legally cognizable risk is one that is reasonably
avoidable. If a risk can be avoided only by taking
extreme or unreasonable measures, then it will not
fall in the category of an unnecessary risk. However,
the greater the magnitude of pain, and the greater
the likelihood of that pain, the greater the
justification must be for not adopting safer
alternative means. Where there is a significant risk
of severe pain that could be avoided through
alternative means, the penological grounds for
failing to adopt an alternative must be compelling to
find that the risk is necessary. In addition, where
multiple acceptable alternatives exist to remedy a
needlessly risky procedure, it is appropriate to seek
input from the State as to which alternative can be
most easily implemented. See Morales, 415 F. Supp.
2d at 1047 (offering California several choices in
remedying its lethal injection protocol).
risk standard takes into account appropriate
penological considerations. Most importantly, a
legally cognizable risk is one that is reasonably
avoidable. If a risk can be avoided only by taking
extreme or unreasonable measures, then it will not
fall in the category of an unnecessary risk. However,
the greater the magnitude of pain, and the greater
the likelihood of that pain, the greater the
justification must be for not adopting safer
alternative means. Where there is a significant risk
of severe pain that could be avoided through
alternative means, the penological grounds for
failing to adopt an alternative must be compelling to
find that the risk is necessary. In addition, where
multiple acceptable alternatives exist to remedy a
needlessly risky procedure, it is appropriate to seek
input from the State as to which alternative can be
most easily implemented. See Morales, 415 F. Supp.
2d at 1047 (offering California several choices in
remedying its lethal injection protocol).
In sum, where a State has chosen to adopt
procedures that create a significant risk of severe
pain, the State is obligated to regulate its procedures
so as to abate that risk.
procedures that create a significant risk of severe
pain, the State is obligated to regulate its procedures
so as to abate that risk.
41
II. Kentucky’s Procedures Subject Inmates To An
Unnecessary Risk Of Excruciating Pain.
A. The Kentucky Courts Failed To Apply The
Proper Constitutional Test.
Although the unnecessary risk test derived from
Gregg and its predecessors is a straightforward and
commonsensical test, the Kentucky courts did not
apply it. Instead, they erred in two important ways.
First, they held that Eighth Amendment protects
against only “substantial” risks rather than
unnecessary ones. JA 759, 800. Second, they failed
to consider the copious record evidence
demonstrating the magnitude and nature of the risk
imposed by Kentucky’s lethal injection process, and
the severity of the pain arising from that risk. JA
760-65.
1. The Kentucky Courts Applied The
Wrong Standard.
The Kentucky Supreme Court’s decision in this
case cannot be squared with Eighth Amendment
precedents, discussed above. Applying the
“substantial risk” test, the courts below evaluated
only the quantum of risk without consideration of the
degree of pain at issue or the availability of
alternatives. Indeed, the trial court held that the
availability of less painful alternatives was
irrelevant because Petitioners had not shown a
substantial risk. In sharp contrast to the
acontextual approach of the courts below, the
unnecessary risk test looks at both the quantum of
risk and the quantum of pain involved, as well as the
availability of alternative methods to avoid the risk.
Wrong Standard.
The Kentucky Supreme Court’s decision in this
case cannot be squared with Eighth Amendment
precedents, discussed above. Applying the
“substantial risk” test, the courts below evaluated
only the quantum of risk without consideration of the
degree of pain at issue or the availability of
alternatives. Indeed, the trial court held that the
availability of less painful alternatives was
irrelevant because Petitioners had not shown a
substantial risk. In sharp contrast to the
acontextual approach of the courts below, the
unnecessary risk test looks at both the quantum of
risk and the quantum of pain involved, as well as the
availability of alternative methods to avoid the risk.
42
The higher the quantum of pain, and the more
feasible the alternatives, the lower the degree of risk
that can be tolerated as necessary (although that
risk must always be at least significant, as described
above). Thus, where the pain in question is severe
and there is a reasonably available alternative, even
a degree of risk that cannot be quantified as
“substantial” will be an unnecessary risk.14
Moreover, the courts below were able to
characterize the risk as insubstantial – and therefore
characterize the risk as insubstantial – and therefore
constitutionally acceptable – only by myopically
focusing on Petitioners’ individual executions
considered in isolation from the inevitable
focusing on Petitioners’ individual executions
considered in isolation from the inevitable
consequences of the repeated use of the protocol
being used to execute them. The Kentucky courts
failed to consider the degree to which even a risk
that appears relatively small with respect to any
individual execution would result in a number of
botched and inhumane executions as the procedures
are employed repeatedly over time to execute
hundreds or thousands of condemned prisoners.
Whether a risk of pain is constitutionally permissible
must be considered in light of the extent to which
unnecessary severe pain may be inflicted on inmates
in the aggregate, such that the procedures “involve
the unnecessary and wanton infliction of pain” over
time. Gregg, 428 U.S. at 173 (plurality opinion). In
failing to conduct this analysis, the courts below took
an unduly cramped view of whether the risks created
being used to execute them. The Kentucky courts
failed to consider the degree to which even a risk
that appears relatively small with respect to any
individual execution would result in a number of
botched and inhumane executions as the procedures
are employed repeatedly over time to execute
hundreds or thousands of condemned prisoners.
Whether a risk of pain is constitutionally permissible
must be considered in light of the extent to which
unnecessary severe pain may be inflicted on inmates
in the aggregate, such that the procedures “involve
the unnecessary and wanton infliction of pain” over
time. Gregg, 428 U.S. at 173 (plurality opinion). In
failing to conduct this analysis, the courts below took
an unduly cramped view of whether the risks created
14 Regardless, Petitioners’ evidence, discussed below,
demonstrated not just a significant but a substantial risk of
pain. See infra pages 43 to 50.
demonstrated not just a significant but a substantial risk of
pain. See infra pages 43 to 50.
43
by the Kentucky procedure are sufficient to be
constitutionally cognizable.
2. The Kentucky Courts Failed To
Analyze The Evidence As A Whole.
The Kentucky courts also fell short by failing to
consider all of the evidence of the numerous
deficiencies in Kentucky’s procedures. The question
whether a State’s execution procedures create an
unnecessary risk of pain requires consideration of
the cumulative risk created by all of the individual
deficiencies in the procedures. In other words, the
question is not, as the Kentucky courts framed it, the
degree of risk that an individual problem will occur –
such as improper preparation of the drugs or an
infiltrated IV – but the degree of risk of severe pain
caused by the cumulative effect of all of the
deficiencies, combined with the danger created by
the use of personnel who are unequipped to prevent
or correct these foreseeable problems. Morales, 465
Analyze The Evidence As A Whole.
The Kentucky courts also fell short by failing to
consider all of the evidence of the numerous
deficiencies in Kentucky’s procedures. The question
whether a State’s execution procedures create an
unnecessary risk of pain requires consideration of
the cumulative risk created by all of the individual
deficiencies in the procedures. In other words, the
question is not, as the Kentucky courts framed it, the
degree of risk that an individual problem will occur –
such as improper preparation of the drugs or an
infiltrated IV – but the degree of risk of severe pain
caused by the cumulative effect of all of the
deficiencies, combined with the danger created by
the use of personnel who are unequipped to prevent
or correct these foreseeable problems. Morales, 465
F. Supp. 2d at 979-81. The lower courts failed to
undertake this analysis, considering in isolation only
two of the foreseeable problems that could arise due
to deficiencies in Kentucky’s procedures, and
ignoring much of the evidence in the record
regarding the numerous other failures in Kentucky’s
procedures.
B. This Court Should Find That Kentucky’s
Procedures Expose Inmates To An
Unnecessary Risk Of Excruciating Pain.
The record evidence demonstrates that Kentucky’s
procedures create an unnecessary risk of
excruciating pain. Both pancuronium and
undertake this analysis, considering in isolation only
two of the foreseeable problems that could arise due
to deficiencies in Kentucky’s procedures, and
ignoring much of the evidence in the record
regarding the numerous other failures in Kentucky’s
procedures.
B. This Court Should Find That Kentucky’s
Procedures Expose Inmates To An
Unnecessary Risk Of Excruciating Pain.
The record evidence demonstrates that Kentucky’s
procedures create an unnecessary risk of
excruciating pain. Both pancuronium and
44
potassium cause extreme suffering if administered
without proper anesthesia; thus, Kentucky’s
procedure depends upon successful injection of
thiopental. Yet the Commonwealth has set up a
system with little margin for error, in which small
but predictable missteps in administration will
produce extreme suffering.
Rather than addressing the dangers created by
the three-drug formula or determining whether less
dangerous alternatives were available, Kentucky
blindly adopted this method of execution and
doggedly refuses to alter it despite mounting
evidence of its risks. At the same time, the
Commonwealth has created an administration
system that, rather than minimizing the risks posed
by the procedure, increases the danger of error
through its needless complexity. And it has failed to
use qualified personnel to carry it out.
the three-drug formula or determining whether less
dangerous alternatives were available, Kentucky
blindly adopted this method of execution and
doggedly refuses to alter it despite mounting
evidence of its risks. At the same time, the
Commonwealth has created an administration
system that, rather than minimizing the risks posed
by the procedure, increases the danger of error
through its needless complexity. And it has failed to
use qualified personnel to carry it out.
The dangers inherent in Kentucky’s procedure –
dangers that are both well-known and well-
documented – leave no doubt that, if not corrected,
its method of execution will cause excruciating pain
to some executed persons. These risks are both
significant and unnecessary. Accordingly,
Kentucky’s lethal injection protocol and the methods
adopted to administer it violate the Eighth
Amendment.
dangers that are both well-known and well-
documented – leave no doubt that, if not corrected,
its method of execution will cause excruciating pain
to some executed persons. These risks are both
significant and unnecessary. Accordingly,
Kentucky’s lethal injection protocol and the methods
adopted to administer it violate the Eighth
Amendment.
1. Kentucky Has Chosen To Employ
Dangerous Drugs That Involve A
Risk of Excruciating Pain.
Kentucky has chosen to employ two drugs that
together render the protocol extremely sensitive to
Dangerous Drugs That Involve A
Risk of Excruciating Pain.
Kentucky has chosen to employ two drugs that
together render the protocol extremely sensitive to
2. Kentucky Has Developed Drug
Administration Procedures That
Make Inadequate Anesthesia Likely.
. Kentucky Has Developed Drug
Administration Procedures That
Make Inadequate Anesthesia Likely.
45
error, with even minor errors leading to catastrophic
consequences. As discussed above, the injection of
potassium into an individual who is not deeply
anesthetized will cause excruciating pain. JA 44344,
600, 626. In addition, a conscious individual
given pancuronium would appear peaceful and
relaxed, even while experiencing the terror and
agony of conscious suffocation. Id. 417, 437, 624-26.
In combination, the two drugs give rise to the danger
that even if inmates are insufficiently anesthetized
and consequently experience the pain of potassium,
all evidence of that suffering will go completely
unnoticed and uncorrected. Id. 441.
Because pancuronium and potassium will inflict
horrendous suffering on a person who is not properly
anesthetized, Kentucky’s lethal injection protocol
depends on the successful administration of
thiopental. Kentucky has exacerbated the danger
inherent in its choice of drugs by relying on
haphazard, convoluted procedures and employing
unqualified personnel to implement them. Had the
lower courts examined the record evidence of
Kentucky’s procedures as a whole, it would have
been evident that the combination of needlessly
complex procedures and unprepared personnel is a
disaster waiting to happen.
horrendous suffering on a person who is not properly
anesthetized, Kentucky’s lethal injection protocol
depends on the successful administration of
thiopental. Kentucky has exacerbated the danger
inherent in its choice of drugs by relying on
haphazard, convoluted procedures and employing
unqualified personnel to implement them. Had the
lower courts examined the record evidence of
Kentucky’s procedures as a whole, it would have
been evident that the combination of needlessly
complex procedures and unprepared personnel is a
disaster waiting to happen.
Kentucky’s method of preparing and injecting the
drugs is complicated and prone to error at each step
of the procedure. First, the DOC allows individuals
drugs is complicated and prone to error at each step
of the procedure. First, the DOC allows individuals
46
to prepare the thiopental dose even though they have
no training or experience in doing so. Id. 528-29.
Untrained personnel are likely to struggle to
calculate and prepare the correct dose, resulting in
substantial uncertainty as to whether an adequate
dose was actually prepared. Id. 434, 532. This
problem is exacerbated by the protocol’s failure to set
forth the desired volume and concentration of
thiopental. Id. 472-73. Although the lower courts
did not address this danger, other States’ use of
inadequately qualified personnel to prepare the
thiopental has repeatedly resulted in incorrect, and
potentially inadequate, doses of thiopental. See, e.g.,
Morales, 465 F. Supp. 2d at 980 (registered nurses’
“admitted failure” to properly prepare thiopental
created doubts as to “whether inmates … have been
sufficiently anesthetized”); Taylor, 2006 WL
1779035, at *5, *7 (expressing concern that the
“physician who is solely responsible for correctly
mixing the drugs” admitted confusion and inability
to mix full dose of thiopental, in part because he had
no anesthesia training).
Second, the DOC’s procedures for IV insertion
create a likelihood of problems, such as infiltration
and improperly connected catheters. Although
EMTs and phlebotomists are qualified to insert IVs,
they are unequipped to do so for persons into whom
peripheral IVs cannot be easily inserted. JA 517. It
is often difficult to insert peripheral IVs in prisoners,
because many have compromised veins from drug
use. Id. 359, 772; see also Beardslee, 395 F.3d at
1074. These inmates foreseeably may require
central line catheters, which would prevent the risks
create a likelihood of problems, such as infiltration
and improperly connected catheters. Although
EMTs and phlebotomists are qualified to insert IVs,
they are unequipped to do so for persons into whom
peripheral IVs cannot be easily inserted. JA 517. It
is often difficult to insert peripheral IVs in prisoners,
because many have compromised veins from drug
use. Id. 359, 772; see also Beardslee, 395 F.3d at
1074. These inmates foreseeably may require
central line catheters, which would prevent the risks
47
of using compromised peripheral veins. See Trial Tr.
138-40, Evans v. Saar, 06-149 (D. Md. October 11,
2006) (testimony from Dr. Dershwitz that the
inability to undertake central line insertion creates a
significant risk of unreliable IV access). The DOC,
however, has no plan for inserting central lines, and
no execution personnel who would have the training
to do so. JA 285, 463 476-78. Instead, DOC officials
force execution personnel to attempt to place two IV
catheters – a primary and a backup – for up to an
hour. JA 975-76. Using a peripheral IV inserted
after more than ten or fifteen minutes of
unsuccessful attempts is dangerous because the IV is
almost certain to be unreliable. Id. 475-76. The
deficiencies in the DOC’s IV procedures – regarding
which the trial court made no findings – are
particularly inexcusable in light of the fact that IV
problems have led to prolonged inhumane lethal
injection executions in other States. See supra pages
20 to 24.
Third, the Commonwealth has chosen to have its
executioners administer the drugs from a separate
room from which it is impossible to observe closely
either the inmate or the catheter site. Id. 280.
Execution personnel are thus extremely unlikely to
detect any administration problems or signs of
consciousness. Even though two DOC officials are
present in the execution chamber itself, they do not
know how to discern IV problems or verify the
induction of general anesthesia. Id. 276, 340; see
also Harbison, 2007 WL 2821230, at *17-*18
(crediting expert testimony that visual monitoring of
catheter sites and inmates from a distance is
executioners administer the drugs from a separate
room from which it is impossible to observe closely
either the inmate or the catheter site. Id. 280.
Execution personnel are thus extremely unlikely to
detect any administration problems or signs of
consciousness. Even though two DOC officials are
present in the execution chamber itself, they do not
know how to discern IV problems or verify the
induction of general anesthesia. Id. 276, 340; see
also Harbison, 2007 WL 2821230, at *17-*18
(crediting expert testimony that visual monitoring of
catheter sites and inmates from a distance is
48
insufficient to detect IV problems, and only
personnel with “daily experience” monitoring can do
it effectively). Moreover, the drugs have to travel
through many feet of IV line to reach the condemned
inmate, and much of this line is not visible to the
executioner pushing the drugs. JA 286-87. The only
means of detecting IV problems would be to gauge
the amount of resistance in the tubing, but the lay
executioner does not have the training necessary to
do so. JA 462-63. The potential for undetected IV
problems is therefore significantly higher than if the
drugs were administered from the bedside.
Fourth, the DOC’s reliance on personnel with
little or no training or experience administering
intravenous drugs increases the likelihood of
administration errors. The only execution team
members who have even minimal medical training
(EMTs and phlebotomists) do not have the
qualifications or training to carry out most tasks
involved in the protocol. See supra pages 17 to 18;
Harbison, 2007 WL 2821230, at *14-*18. Inevitably,
serious errors arise when uninformed and untrained
personnel are relied upon to administer the
execution procedure. See, e.g., JA 508-09 (explaining
that often it is “errors in judgment” that are “the
major cause” of mistakes in administering drugs);
Morales, 465 F. Supp. 2d at 979. Moreover, EMTs
and phlebotomists do not have the training or
experience to react to foreseeable problems. JA 52930;
see also supra pages 17 to 18. Nor does the DOC
provide any training on reacting to contingencies.
JA 191, 318.
little or no training or experience administering
intravenous drugs increases the likelihood of
administration errors. The only execution team
members who have even minimal medical training
(EMTs and phlebotomists) do not have the
qualifications or training to carry out most tasks
involved in the protocol. See supra pages 17 to 18;
Harbison, 2007 WL 2821230, at *14-*18. Inevitably,
serious errors arise when uninformed and untrained
personnel are relied upon to administer the
execution procedure. See, e.g., JA 508-09 (explaining
that often it is “errors in judgment” that are “the
major cause” of mistakes in administering drugs);
Morales, 465 F. Supp. 2d at 979. Moreover, EMTs
and phlebotomists do not have the training or
experience to react to foreseeable problems. JA 52930;
see also supra pages 17 to 18. Nor does the DOC
provide any training on reacting to contingencies.
JA 191, 318.
49
Despite all this, the warden and deputy warden
who oversee executions testified that they would rely
on the EMT and phlebotomist to solve any problems
that arise. Id. 283, 337-38. Their dependence is
unavoidable because neither official has the
knowledge needed to detect problems. Id. 283
(warden “honestly [doesn’t] know what you’d look
for” to discern signs of distress). The DOC’s reliance
on its medical personnel would be appropriate and
useful if those personnel were adequately qualified.
But the DOC never verified that these personnel
were qualified or capable of discharging their
responsibilities in the execution procedure. Id. 279
(“given the gravity of the situation,” he “think[s]” the
medical personnel would “know what to do”); id. 312
(IV team “probably” can mix drugs). Having failed to
investigate the dangers of the procedure, DOC
officials have no basis for assuming that execution
personnel would “know what to do.” This unthinking
reliance on personnel who have minimal relevant
training is a needless failure that has resulted in
execution problems in other States. See Taylor, 2006
WL 1779035, at *7 (noting officials’ deference to
incompetent doctor).
who oversee executions testified that they would rely
on the EMT and phlebotomist to solve any problems
that arise. Id. 283, 337-38. Their dependence is
unavoidable because neither official has the
knowledge needed to detect problems. Id. 283
(warden “honestly [doesn’t] know what you’d look
for” to discern signs of distress). The DOC’s reliance
on its medical personnel would be appropriate and
useful if those personnel were adequately qualified.
But the DOC never verified that these personnel
were qualified or capable of discharging their
responsibilities in the execution procedure. Id. 279
(“given the gravity of the situation,” he “think[s]” the
medical personnel would “know what to do”); id. 312
(IV team “probably” can mix drugs). Having failed to
investigate the dangers of the procedure, DOC
officials have no basis for assuming that execution
personnel would “know what to do.” This unthinking
reliance on personnel who have minimal relevant
training is a needless failure that has resulted in
execution problems in other States. See Taylor, 2006
WL 1779035, at *7 (noting officials’ deference to
incompetent doctor).
In sum, the DOC’s procedures create a setting in
which botched executions are not only possible but
highly likely. As described supra, pages 20 to 24,
deficiencies that are similar to those present in
Kentucky have led to botched executions in those
States that perform executions more frequently than
does Kentucky.
which botched executions are not only possible but
highly likely. As described supra, pages 20 to 24,
deficiencies that are similar to those present in
Kentucky have led to botched executions in those
States that perform executions more frequently than
does Kentucky.
50
3. Kentucky’s Selection Of These Risky
Procedures Was Ill-Considered.
The deficiencies in Kentucky’s procedures are the
predictable result of the haphazard manner in which
the DOC adopted them. The officials who developed
and implemented the procedures and who currently
supervise the process “did not conduct any
independent scientific or medical studies or consult
any medical professionals concerning the drugs and
dosage amounts to be injected into the condemned.”
JA 760, 139-42; 225-27. Rather, they simply aped
the three-drug formula used in other States without
inquiring into the dangerousness of the procedures,
or even understanding the drugs or the need to
induce anesthesia. Id. 760.
Procedures Was Ill-Considered.
The deficiencies in Kentucky’s procedures are the
predictable result of the haphazard manner in which
the DOC adopted them. The officials who developed
and implemented the procedures and who currently
supervise the process “did not conduct any
independent scientific or medical studies or consult
any medical professionals concerning the drugs and
dosage amounts to be injected into the condemned.”
JA 760, 139-42; 225-27. Rather, they simply aped
the three-drug formula used in other States without
inquiring into the dangerousness of the procedures,
or even understanding the drugs or the need to
induce anesthesia. Id. 760.
Similarly, DOC officials made decisions that
require medical expertise – such as the dose of
thiopental and the manner in which the IV will be
inserted – without consulting any medically trained
personnel. Id. 255-56, 289, 760-61. It is
unsurprising that the results of the officials’
uninformed decisionmaking process include the
extremely dangerous neck catheterization
disapproved by the DOC’s own medical staff and
found unconstitutional by the trial court, id. 762,
767; the ill-advised requirement that personnel will
attempt to insert the IV line for an hour; and the
convoluted process for remote delivery of the drugs.
Id. 256, 286, 288-89, 359, 639, 976.
require medical expertise – such as the dose of
thiopental and the manner in which the IV will be
inserted – without consulting any medically trained
personnel. Id. 255-56, 289, 760-61. It is
unsurprising that the results of the officials’
uninformed decisionmaking process include the
extremely dangerous neck catheterization
disapproved by the DOC’s own medical staff and
found unconstitutional by the trial court, id. 762,
767; the ill-advised requirement that personnel will
attempt to insert the IV line for an hour; and the
convoluted process for remote delivery of the drugs.
Id. 256, 286, 288-89, 359, 639, 976.
51
C. The Risk Kentucky’s Procedures Create Is
Reasonably Preventable Through The
Adoption Of Available Alternatives.
The foreseeable risk that Kentucky’s execution
procedures will result in excruciating pain is an
unnecessary risk, and therefore unconstitutional.
The risk could be reasonably minimized by changing
either the three-drug formula itself or the process of
administering the drugs.
Reasonably Preventable Through The
Adoption Of Available Alternatives.
The foreseeable risk that Kentucky’s execution
procedures will result in excruciating pain is an
unnecessary risk, and therefore unconstitutional.
The risk could be reasonably minimized by changing
either the three-drug formula itself or the process of
administering the drugs.
1. Removing Pancuronium And
Potassium From The Execution
Protocol Would Greatly Reduce The
Risk Of Pain Without Compromising
Penological Interests.
By omitting pancuronium and potassium and
relying instead on a lethal dose of an anesthetic, the
DOC would virtually eliminate the risk of pain.
These facts were undisputed below, leading the trial
court to note that “evidence was presented that other
drugs were available” that would lessen the danger
of severe pain. Id. 766. Moroever, there is no
evidence that removing pancuronium and potassium
from the protocol would compromise any legitimate
penological interests.
Potassium From The Execution
Protocol Would Greatly Reduce The
Risk Of Pain Without Compromising
Penological Interests.
By omitting pancuronium and potassium and
relying instead on a lethal dose of an anesthetic, the
DOC would virtually eliminate the risk of pain.
These facts were undisputed below, leading the trial
court to note that “evidence was presented that other
drugs were available” that would lessen the danger
of severe pain. Id. 766. Moroever, there is no
evidence that removing pancuronium and potassium
from the protocol would compromise any legitimate
penological interests.
It is undisputed that pancuronium is not a
necessary component of the execution procedure.
The drug is not given in order to cause the inmate’s
death, id. 443-44, 585, and it does not further the
humaneness of the execution, id. 445. The
Commonwealth presented no legitimate rationale for
using pancuronium. As the trial court found, the
Commonwealth’s justification is aesthetic:
necessary component of the execution procedure.
The drug is not given in order to cause the inmate’s
death, id. 443-44, 585, and it does not further the
humaneness of the execution, id. 445. The
Commonwealth presented no legitimate rationale for
using pancuronium. As the trial court found, the
Commonwealth’s justification is aesthetic:
52
Pancuronium conceals “muscular movements in the
condemned, involuntary or otherwise, that may
result from the subsequent injection of [p]otassium.”
JA 763; see Beardslee, 395 F.3d at 1075-76 & n.13
(stating that the State’s failure to “provide a single
justification for the use of pancuronium,” and Dr.
Dershwitz’s assertion of an aesthetic rationale for
pancuronium, are, “to say the least, troubling”). Dr.
Dershwitz asserted that the involuntary muscle
movements sometimes caused by potassium “could
be perceived by lay witnesses as suffering or
discomfort.” JA 559-61. The trial court therefore
concluded that the “use of [p]ancuronium … in
Kentucky’s lethal injection protocol serves no
therapeutic purpose.” Id. 763.
The Commonwealth’s rationale for using
pancuronium – whether couched as concern for the
witnesses, or for the “dignity” of the inmate, id. 73940
– is not legitimate. Pancuronium’s inclusion in
the protocol virtually guarantees that prison
personnel will be unable to detect any problems that
are likely to occur, leaving the inmate to endure
conscious suffocation and pain unbeknownst to
observers. Id. 377, 441. Yet the DOC presented no
evidence of any concrete harm that would justify
imposing such a risk on condemned inmates. There
is no evidence and no reason to think that witnesses
would be injured by viewing any involuntary
movements associated with death. Witnesses to
electrocutions and gassings routinely observed
seizures and other bodily movements. See supra
pages 2 to 4. And one State, New Jersey, has
determined that pancuronium is unnecessary, and
pancuronium – whether couched as concern for the
witnesses, or for the “dignity” of the inmate, id. 73940
– is not legitimate. Pancuronium’s inclusion in
the protocol virtually guarantees that prison
personnel will be unable to detect any problems that
are likely to occur, leaving the inmate to endure
conscious suffocation and pain unbeknownst to
observers. Id. 377, 441. Yet the DOC presented no
evidence of any concrete harm that would justify
imposing such a risk on condemned inmates. There
is no evidence and no reason to think that witnesses
would be injured by viewing any involuntary
movements associated with death. Witnesses to
electrocutions and gassings routinely observed
seizures and other bodily movements. See supra
pages 2 to 4. And one State, New Jersey, has
determined that pancuronium is unnecessary, and
53
has opted to use only thiopental and potassium in its
protocol. JA 109-10. In any event, the concern that
witnesses may mistake unconscious movements for
evidence of pain could be eliminated by informing
them about the nature of the movements they might
see. Thus, the danger to the inmate created by
pancuronium could be avoided at little cost to the
DOC. 15
It was also undisputed that if potassium were
removed from the protocol, the three-gram dose of
thiopental would independently cause death. Id. 547.
Thus, potassium too is unnecessary.
removed from the protocol, the three-gram dose of
thiopental would independently cause death. Id. 547.
Thus, potassium too is unnecessary.
The Commonwealth presented no justification for
its use of potassium apart from Dr. Dershwitz’s
suggestion that the speed with which potassium
stops the heart is a positive attribute. Id. 627. But
speed for its own sake is not a penological interest.
The Commonwealth has not explained how its
penological interests would be compromised if a few
its use of potassium apart from Dr. Dershwitz’s
suggestion that the speed with which potassium
stops the heart is a positive attribute. Id. 627. But
speed for its own sake is not a penological interest.
The Commonwealth has not explained how its
penological interests would be compromised if a few
15 The medical and veterinary communities have determined
that it is never acceptable to administer a paralytic simply to
protect the sensibilities of observers. The increased risk to the
patient – even when trained veterinarians or physicians are
present – cannot be justified by concerns that pet owners or
family members may be upset by involuntary movements. JA
456-57; see Concannon Br., supra, Hill v. McDonough, No. 058794,
at 14-16 (S. Ct. 2006). See, e.g., Robert D. Truog et al.,
Recommendations for end-of-life care in the intensive care unit:
The Ethics Committee of the Society of Critical Care Medicine,
29 Crit. Care Med. 2332, 2345 (2001) (use of paralytic for
aesthetic purposes cannot “plausibly” be said to be for the
benefit of the patient; “the best way to relieve [family’s]
suffering [from seeing death movements] is by reassuring them
of the patient’s comfort through the use of adequate sedation
and analgesia”).
that it is never acceptable to administer a paralytic simply to
protect the sensibilities of observers. The increased risk to the
patient – even when trained veterinarians or physicians are
present – cannot be justified by concerns that pet owners or
family members may be upset by involuntary movements. JA
456-57; see Concannon Br., supra, Hill v. McDonough, No. 058794,
at 14-16 (S. Ct. 2006). See, e.g., Robert D. Truog et al.,
Recommendations for end-of-life care in the intensive care unit:
The Ethics Committee of the Society of Critical Care Medicine,
29 Crit. Care Med. 2332, 2345 (2001) (use of paralytic for
aesthetic purposes cannot “plausibly” be said to be for the
benefit of the patient; “the best way to relieve [family’s]
suffering [from seeing death movements] is by reassuring them
of the patient’s comfort through the use of adequate sedation
and analgesia”).
54
minutes were added to the duration of executions.16
Among the jurisdictions that employ the three-drug
formula, the average duration of executions varies
widely, from two or three minutes to over twenty
minutes. See, e.g., JA 496 (Kentucky execution of
Eddie Harper took approximately five minutes);
Walker v. Johnson, 448 F. Supp. 2d 719, 721 (E.D.
Va. 2006); Morales v. Hickman, 415 F. Supp. 2d at
1044-46 & n.16. Clearly, then, penological interests
do not require that otherwise painless executions be
completed in less than two minutes.
The “speed” justification for potassium appears
even more flimsy in view of the fact that Dr.
Dershwitz admitted, and Petitioners’ experts agreed,
that there are other cardiotoxic drugs that will stop
the heart, without causing pain, “within a few
minutes.” JA 628. The DOC’s failure to investigate,
and refusal to consider these alternative drugs is
inexplicable.
even more flimsy in view of the fact that Dr.
Dershwitz admitted, and Petitioners’ experts agreed,
that there are other cardiotoxic drugs that will stop
the heart, without causing pain, “within a few
minutes.” JA 628. The DOC’s failure to investigate,
and refusal to consider these alternative drugs is
inexplicable.
Although the Kentucky courts never addressed the
viability of a barbiturate-only protocol, several other
courts confronting lethal injection challenges have
concluded that such a protocol would virtually
eliminate the risk of pain. For instance, the district
court, in Morales v. Tilton suggested that the State
consider a barbiturate-only protocol, reasoning that
viability of a barbiturate-only protocol, several other
courts confronting lethal injection challenges have
concluded that such a protocol would virtually
eliminate the risk of pain. For instance, the district
court, in Morales v. Tilton suggested that the State
consider a barbiturate-only protocol, reasoning that
because the constitutional issues
presented by this case stem solely from
presented by this case stem solely from
16 A DOC physician and the Commonwealth’s chief toxicologist
testified that a three-gram dose of thiopental would cause death
within three minutes to fifteen minutes. Tr. 656:16-18; id.
553:21-24.
testified that a three-gram dose of thiopental would cause death
within three minutes to fifteen minutes. Tr. 656:16-18; id.
553:21-24.
55
the effects of pancuronium bromide and
potassium chloride on a person who has
not been properly anesthetized,
removal of these drugs from the lethal-
injection protocol, with the execution
accomplished solely by an anesthetic,
such as sodium pentobarbital, would
eliminate any constitutional concerns,
subject only to the implementation of
adequate, verifiable procedures to
ensure that the inmate actually receives
a fatal dose of the anesthetic.
465 F. Supp. 2d at 983; 415 F. Supp. 2d at 1047 &
n.16 (providing State with option of executing
plaintiff by means of “thiopental or another
barbiturate or combination of barbiturates”); see
also, e.g., Harbison, 2007 WL 2821230, at *22-*23
(stating that barbiturate-only protocol “would have
greatly mitigated the plaintiff’s risk of pain”); Brown,
2006 WL 3914717, at *2, *4 (discussing plaintiff’s
request that North Carolina use a barbiturate
protocol, and the Morales Court’s consideration of
barbiturate-only protocol).
These courts’ opinions were informed by the very
expert input that should have attended the
development of the first lethal injection protocols in
Kentucky and other States. See, e.g., Morales, 415
plaintiff by means of “thiopental or another
barbiturate or combination of barbiturates”); see
also, e.g., Harbison, 2007 WL 2821230, at *22-*23
(stating that barbiturate-only protocol “would have
greatly mitigated the plaintiff’s risk of pain”); Brown,
2006 WL 3914717, at *2, *4 (discussing plaintiff’s
request that North Carolina use a barbiturate
protocol, and the Morales Court’s consideration of
barbiturate-only protocol).
These courts’ opinions were informed by the very
expert input that should have attended the
development of the first lethal injection protocols in
Kentucky and other States. See, e.g., Morales, 415
F. Supp. 2d at 1047 & n.16 (relying on testimony of
both sides’ expert anesthesiologists regarding the
relative risks of the barbiturate-only and three-drug
protocols). Dr. Dershwitz, who defended Kentucky’s
three-drug protocol in this case and now advises
many jurisdictions regarding their execution
56
protocols, has recently begun recommending that
jurisdictions adopt a barbiturate-only protocol. In
Tennessee, for instance, the Harbison Court found
that “Dr. Dershwitz recommended that the
committee adopt a one-drug protocol which provided
for the administration of 5 grams of sodium
thiopental, ... and a waiting period of five minutes
before the physician came in and confirmed death.
Then, if the inmate were still alive, a second 5 gram
dose of sodium thiopental could be administered.”
Harbison, 2007 WL 2821230, at *3 (internal
quotation marks omitted).
both sides’ expert anesthesiologists regarding the
relative risks of the barbiturate-only and three-drug
protocols). Dr. Dershwitz, who defended Kentucky’s
three-drug protocol in this case and now advises
many jurisdictions regarding their execution
56
protocols, has recently begun recommending that
jurisdictions adopt a barbiturate-only protocol. In
Tennessee, for instance, the Harbison Court found
that “Dr. Dershwitz recommended that the
committee adopt a one-drug protocol which provided
for the administration of 5 grams of sodium
thiopental, ... and a waiting period of five minutes
before the physician came in and confirmed death.
Then, if the inmate were still alive, a second 5 gram
dose of sodium thiopental could be administered.”
Harbison, 2007 WL 2821230, at *3 (internal
quotation marks omitted).
Moreover, the record in Harbison indicates that no
substantial penological interests preclude the use of
the barbiturate-only protocol. According to the
Tennessee DOC, the advantages of a barbiturate-
only execution are that “[a]ll physicians have agreed
[there is] less chance of error”; it is simple; it is
“[p]eaceful to witnesses”; it is “[s]imilar to animal
euthanasia”; it “[e]liminates Pavulon & Potassium
Chloride.” Id. at *3-*4. The only pragmatic
disadvantage listed by the DOC was its belief that
the protocol might involve a “potential longer time to
pronounce death” in States that rely on EKG
readings to pronounce death. Id. at *4. The DOC’s
protocol revision committee was apparently not
deterred by this possibility as it recommended that
the State adopt the barbiturate-only protocol on the
strength of Dershwitz’s advice that inmates would
die within five minutes of the administration of an
overdose of thiopental. Id. at *22-*23 (State rejected
recommendation because of “political ramifications,”
substantial penological interests preclude the use of
the barbiturate-only protocol. According to the
Tennessee DOC, the advantages of a barbiturate-
only execution are that “[a]ll physicians have agreed
[there is] less chance of error”; it is simple; it is
“[p]eaceful to witnesses”; it is “[s]imilar to animal
euthanasia”; it “[e]liminates Pavulon & Potassium
Chloride.” Id. at *3-*4. The only pragmatic
disadvantage listed by the DOC was its belief that
the protocol might involve a “potential longer time to
pronounce death” in States that rely on EKG
readings to pronounce death. Id. at *4. The DOC’s
protocol revision committee was apparently not
deterred by this possibility as it recommended that
the State adopt the barbiturate-only protocol on the
strength of Dershwitz’s advice that inmates would
die within five minutes of the administration of an
overdose of thiopental. Id. at *22-*23 (State rejected
recommendation because of “political ramifications,”
57
though it was willing to adopt the barbiturate-only
protocol if ordered to do so).
In sum, it is evident that a barbiturate-only
protocol is a reasonably available alternative
procedure that would address the significant risks
created by Kentucky’s use of pancuronium and
potassium and its failure to ensure that the
thiopental will be successfully administered.
Kentucky has suggested no justification that would
counsel against adopting the barbiturate-only
protocol, and other States have all but admitted that
doing so would not compromise any legitimate
penological interests.
protocol is a reasonably available alternative
procedure that would address the significant risks
created by Kentucky’s use of pancuronium and
potassium and its failure to ensure that the
thiopental will be successfully administered.
Kentucky has suggested no justification that would
counsel against adopting the barbiturate-only
protocol, and other States have all but admitted that
doing so would not compromise any legitimate
penological interests.
2. An Alternative Way To Minimize
Risk Is For A Qualified Person To
Monitor Anesthetic Depth
Throughout The Execution.
If Kentucky insists on continuing to use
pancuronium and potassium, then an alternative
means of reducing unnecessary risk would be to
ensure that the inmate is sufficiently anesthetized
throughout the execution by monitoring anesthetic
depth.
Risk Is For A Qualified Person To
Monitor Anesthetic Depth
Throughout The Execution.
If Kentucky insists on continuing to use
pancuronium and potassium, then an alternative
means of reducing unnecessary risk would be to
ensure that the inmate is sufficiently anesthetized
throughout the execution by monitoring anesthetic
depth.
As Dr. Heath testified at trial, unconsciousness is
a matter of degree. JA 406-07. Thus, the monitoring
of “anesthetic depth” by qualified personnel is critical
to ensuring that an inmate is sufficiently
unconscious so as not to feel the agony and extreme
pain that would necessarily otherwise result from
the administration of pancuronium and potassium.
Id. 418-22. The need for monitoring is even more
critical when a paralytic such as pancuronium is
a matter of degree. JA 406-07. Thus, the monitoring
of “anesthetic depth” by qualified personnel is critical
to ensuring that an inmate is sufficiently
unconscious so as not to feel the agony and extreme
pain that would necessarily otherwise result from
the administration of pancuronium and potassium.
Id. 418-22. The need for monitoring is even more
critical when a paralytic such as pancuronium is
58
given, because an inmate would be unable to speak,
move or otherwise signal pain. Id. (discussing subtle
signs trained personnel would look for to assess
consciousness in a paralyzed person). Unrebutted
trial testimony established that monitoring by
personnel trained in detecting consciousness would
be necessary to remove this risk of the three-drug
protocol, at least in the absence of systemic changes
to the DOC’s execution personnel and drug
administration system. These personnel, using
whatever monitoring equipment they deem
necessary (such as a BIS monitor, blood pressure
cuff, EKG, and/or EEG, id. 420-22, 439-40), could
reasonably ensure that the execution procedures do
not result in excruciating pain. It was also
uncontested that Kentucky uses no equipment to
monitor for anesthetic depth, id. 764, and does not
have any personnel even attempt to verify
unconsciousness other than the ineffectual check by
the Warden described above.17
Other courts have recognized the importance of
monitoring anesthetic depth and offered States the
choice between adopting a one-drug protocol or using
three drugs in conjunction with monitoring.
Morales, 415 F. Supp. 2d at 1047 (requiring
California to either conduct executions using a
“single” barbiturate, or use a “qualified individual [to
verify that the inmate] is in fact unconscious”); see
also Morales v. Hickman, 438 F.3d 926, 931 (9th Cir.
2006), cert. denied, 546 U.S. 1163 (2006) (monitoring
monitoring anesthetic depth and offered States the
choice between adopting a one-drug protocol or using
three drugs in conjunction with monitoring.
Morales, 415 F. Supp. 2d at 1047 (requiring
California to either conduct executions using a
“single” barbiturate, or use a “qualified individual [to
verify that the inmate] is in fact unconscious”); see
also Morales v. Hickman, 438 F.3d 926, 931 (9th Cir.
2006), cert. denied, 546 U.S. 1163 (2006) (monitoring
17 The DOC’s existing execution personnel have no anesthesia
training and therefore would be unable to monitor anesthetic
depth effectively. JA 404, 529.
training and therefore would be unable to monitor anesthetic
depth effectively. JA 404, 529.
59
by anesthesia professional who could take “all
medically appropriate steps … to immediately place
or return Morales into an unconscious state” would
“alleviate substantial concerns”).
D. Conclusion.
The risks created by the use of pancuronium and
potassium are not justifiable in light of any
penological interests. Those interests, to the extent
they are legitimate, can be furthered through means
that do not subject inmates to a danger of
excruciating pain. Moreover, there are reasonably
available alternatives that do not involve the same
risk of unnecessary pain and could be adopted
without compromising penological interests. Thus,
Kentucky’s execution procedures involve an
unnecessary risk of excruciating pain and agony and
are therefore unconstitutional.
The risks created by the use of pancuronium and
potassium are not justifiable in light of any
penological interests. Those interests, to the extent
they are legitimate, can be furthered through means
that do not subject inmates to a danger of
excruciating pain. Moreover, there are reasonably
available alternatives that do not involve the same
risk of unnecessary pain and could be adopted
without compromising penological interests. Thus,
Kentucky’s execution procedures involve an
unnecessary risk of excruciating pain and agony and
are therefore unconstitutional.
III. In The Alternative, This Court Should
Remand To Allow The Lower Courts To
Undertake The Proper Constitutional
Analysis.
The record in this case establishes that Kentucky’s
procedures create a significant and unnecessary risk
of severe pain and agony, such that this Court should
reverse the Kentucky Supreme Court’s judgment. At
a minimum, Petitioners are entitled to a remand
with directions to the lower courts to evaluate the
evidence in a proper manner under the correct
Eighth Amendment standard. As discussed above,
the lower courts looked only at the quantum of risk,
and they committed two additional analytical errors
in applying the erroneous “substantial risk”
Remand To Allow The Lower Courts To
Undertake The Proper Constitutional
Analysis.
The record in this case establishes that Kentucky’s
procedures create a significant and unnecessary risk
of severe pain and agony, such that this Court should
reverse the Kentucky Supreme Court’s judgment. At
a minimum, Petitioners are entitled to a remand
with directions to the lower courts to evaluate the
evidence in a proper manner under the correct
Eighth Amendment standard. As discussed above,
the lower courts looked only at the quantum of risk,
and they committed two additional analytical errors
in applying the erroneous “substantial risk”
60
standard. They considered only a portion of the
evidence of administration deficiencies in the record,
and they assessed the degree of risk involved in
Kentucky’s procedures from the standpoint of each
individual execution rather than considering the
probability that repeated executions using those
procedures would produce at least some torturous
deaths. The Kentucky courts also failed to consider
whether the risk of pain was unnecessary in view of
Petitioners’ showing that reasonably available
alternative procedures would minimize the risks
created by the DOC’s deficient procedures.
Because the record was created and adjudicated in
light of an erroneous standard, the lower courts
should be required to reevaluate it under the correct
“unnecessary risk” standard and to assess the risk in
a proper fashion on consideration of all of the
relevant facts. See, e.g., Panetti v. Quarterman, 127
light of an erroneous standard, the lower courts
should be required to reevaluate it under the correct
“unnecessary risk” standard and to assess the risk in
a proper fashion on consideration of all of the
relevant facts. See, e.g., Panetti v. Quarterman, 127
S. Ct. 2842, 2863 (2007) (because “the record was
developed pursuant to a standard we have found to
be improper,” “[t]he underpinnings of petitioner’s
claims should be explained and evaluated in further
detail on remand.”); Johnson v. California, 543 U.S.
499, 515 (2005) (noting that a “remand the case to
allow the Court of Appeals for the Ninth Circuit, or
the District Court, to apply [the legal standard] in
the first instance” is routine where the lower courts
have applied an incorrect legal standard).
CONCLUSION
For the foregoing reasons, this Court should
reverse, or alternatively, should remand for further
proceedings.
developed pursuant to a standard we have found to
be improper,” “[t]he underpinnings of petitioner’s
claims should be explained and evaluated in further
detail on remand.”); Johnson v. California, 543 U.S.
499, 515 (2005) (noting that a “remand the case to
allow the Court of Appeals for the Ninth Circuit, or
the District Court, to apply [the legal standard] in
the first instance” is routine where the lower courts
have applied an incorrect legal standard).
CONCLUSION
For the foregoing reasons, this Court should
reverse, or alternatively, should remand for further
proceedings.
DONALD B. VERRILLI, JR.
MATTHEW S. HELLMAN
GINGER D. ANDERS
CARRIE F. APFEL
JENNER & BLOCK LLP
601 13th Street N.W.
Washington, DC 20005
(202) 639-6000
November 5, 2007
November 5, 2007
61
Respectfully submitted,
DAVID M. BARRON*
JOHN ANTHONY PALOMBI
Assistant Public
JOHN ANTHONY PALOMBI
Assistant Public
Advocates
Kentucky Department of
Public Advocacy
100 Fair Oaks Lane, Ste.
301
Frankfort, KY 40601
Kentucky Department of
Public Advocacy
100 Fair Oaks Lane, Ste.
301
Frankfort, KY 40601
(502) 564-3948
*Counsel of Record
*Counsel of Record
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