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The Arizona Execution Cases -- Lethal Injection

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Arizona's three-drug protocol was upheld in Dickens v. Brewer, 631 F.3d 1139
(CA9 2011), but some changes had been made since.  In Towery v. Brewer, Towery, Moormann, et al. challenged the amended three-drug protocol.  The district court rejected the challenge. On the eve of oral argument, the state discovered its pancuronium bromide, the second drug in the three-drug protocol, had expired.  So Arizona decided to join the one-drug club (with Ohio and Washington), and use pentobarbital only.  Its protocol is drafted to allow the director to make the switch.

The most interesting part of the Ninth Circuit's decision, in my view, is the equal protection discussion beginning on page 19.  The court rejects the notion that strict scrutiny is required.  "A prisoner's right to be free of cruel and unusual punishment, in contrast [to the right to vote in Bush v. Gore], is not affected simply because that prisoner is treated less favorably than another, where one means of execution is no more likely to create a risk of cruel and unusual punishment than the other, and both are constitutionally available."

The court distinguishes the Ohio case.  "The contrast with the litigation surrounding Ohio's lethal injection protocol, invoked by Towery and Moormann in support of their fundamental rights Equal Protection argument, is instructive. In those cases, plaintiffs were able to show an actual pattern of treating prisoners differently in ways that did affect the risk of pain to which they would be subjected, and therefore the risk of being subjected to cruel and unusual punishment....The fundamental rights prong of Equal Protection analysis therefore cannot apply."

I don't think the Ohio plaintiffs actually did show a risk rising to an Eighth Amendment concern.  Simply going to the single-drug protocol eliminates most of the risk of pain that has been litigated over the last several years.

The court goes on to reject the so-called "class of one" argument, which requires that a person be arbitrarily treated differently from all the others with no rational basis for doing so, even in the absence of a suspect classification or a fundamental right.  The practical needs of carrying out an execution, including the varying availability of the various drugs, is a rational basis.

Before rejecting the plaintiffs' arguments, the court did warn Arizona, in strong terms, to stop making changes in its protocol so often and on such short notice.
Although we uphold the denial of the preliminary injunction based on the 2012 Protocol, as amended by the State during oral argument with respect to Towery and Moormann's executions, the State's frequent changes to its protocol during litigation are not sustainable. We find ourselves, once again, deciding not the merits of Arizona's written protocol, but the validity of litigation-related, often case-specific, amendments to the protocol designed to ensure constitutionality. We are mindful of the admonition requiring us to refrain from micro-managing each individual execution, but the admonition has a breaking point. The State appears to have invited the present litigation through its recent amendment of the protocol after the issuance of Towery and Moormann's death warrants. Unless permanent changes are made in the manner in which Arizona amends its protocols, Arizona's ongoing conduct may require us "to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death." In re Ohio Execution Protocol Litigation, ___ F.3d ___, No. 12-3035, 2012 WL 118322, at *1 (6th Cir. Jan. 13, 2012). We trust this will not be the case.

I think that's a warning shot.

4 Comments

"The State appears to have invited the present litigation through its recent amendment of the protocol after the issuance of Towery and Moormann's death warrants."

I don't see where this is any of the Ninth Circuit's business, particularly where the changes made the protocol safer. Perhaps, the Ninth should be more focused on getting its own cases right. How many times did it act as a super parole board before getting smacked down by SCOTUS?

The Ninth Circus Court of Schlemials thinks that it is both a court and legislature with its own agenda. I hope Arizona gives them the big middle finger.

The holding of the case is correct, the equal protection analysis is quite good, and Mr. Moormann has received his just deserts. I'll give them a thumbs up.

Definitely true on the EPC analysis, but the shots at Arizona with respect to the expired pancuronium bromide and the threat about not changing its protocol are ridiculous. In a sane judiciary, Arizona would be praised for quickly getting its protocol revised last year when it needed a new drug and now when it discovered the expiry of the pancuronium bromide.

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