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Legally Indefensible: Requiring Death Row Prisoners to Prove Available ©F Graranpchesicc oS tSoccak tena | AdobeStock vents prison officials from pleading that they were ‘sub - Legally Indefensible: jectively blameless for purposes of the Eighth Amendment .’” 4 This legal standard is a difficult, “heavy Requiring Death Row Prisoners to burden.” 5 In the eight years since the Supreme Court Prove Available Execution Alternatives decided Baze , no court has held that an existing proce - dure violates the cruel and unusual punishment clause, despite several high-profile, gruesomely bungled execu - tions, experimentation with new drug formulas, and questions about the quality and sources of the drugs departments of corrections are using. However, what tips the condemned prisoners’ burden from heavy to he Supreme Court has twice considered and extraordinary is the requirement announced in the rejected Eighth Amendment challenges to state Court’s 2015 decision in Glossip v. Gross that the con - Tlethal injection procedures, concluding in both demned prisoners themselves must present and prove a cases that the condemned prisoners failed to show that “readily available” and “feasible” execution procedure the execution process in their states posed sufficient to replace the challenged procedure. 6 risks of pain and suffering to be adjudged cruel and The requirement that petitioners proffer and prove unusual punishment. 1 More broadly, the Court’s deci - an alternative method of execution may prove to be sions in an array of lethal injection challenges have unworkable, both legally and practically. If, however, declined to seriously entertain claims that execution condemned prisoners are ever to meet this standard, procedures are constitutionally infirm, while insisting they must have access to relevant information regard - that method-of-execution challenges not delay execu - ing their department of corrections’ current execution tions. 2 Most recently, the Court reasserted the very high protocol, other procedures considered but rejected, and legal bar condemned prisoners must meet to satisfy the the department’s capacity to perform other procedures. Eighth Amendment, and added to this burden a This type of information, which is unquestionably rel - requirement that the plaintiff “identify a known and evant to the plaintiff’s legal burden, is largely unavail - available alternative method of execution that entails a able because of the secrecy that currently surrounds lesser risk of pain” than the challenged procedure. 3 execution procedures. In its 2008 Baze v. Rees plurality opinion, the Court Over the past five years, as states encountered obsta - established the legal standard for an Eighth cles to purchasing the drugs they use in executions, they Amendment challenge to an execution procedure. A responded by passing secrecy statutes that broaden the petitioner must prove a “‘substantial risk of serious categories of information related to execution proce - harm,’ an ‘objectively intolerable risk of harm’ that pre - dures that must be kept confidential and enhance the BY MEGAN MCCRACKEN 46 WWW.NACDL.ORG THE CHAMPION degree of secrecy surrounding such method of execution arose again in prisoners under general anesthesia and information.7 With these laws in place, Hill v. McDonough, where the render them insensate to all subsequent departments of corrections are able to Supreme Court held that the petition- stimuli.12 Rather, the plaintiffs argued obscure important details about execu- er’s challenge to Florida’s lethal injec- that the process was constitutionally tions, particularly information about tion procedure was cognizable under infirm because of a significant and their purchases of execution drugs and Section 1983. The United States filed unnecessary risk of maladministration what, specifically, those drugs are. an amicus brief in Hill, arguing that of the procedure, which would lead to prisoners who challenge execution pro- pain and suffering in violation of the The Evolution of the cedures under Section 1983 must Eighth Amendment. Baze was a case Alternative Requirement “identif[y] an alternative, authorized about risk of maladministration and Prior to Glossip, the Supreme Court method of execution.” The government whether the state employed adequate never held that a method-of-execution argued that if a petitioner does not procedures to safeguard against errors claim requires proving the existence of plead an alternative method, the legal and mistakes in carrying out the execu- an alternative. In Nelson v. Campbell, challenge “is more like a claim chal- tion procedure. the Court held that David Nelson, a lenging the imposition of any method As in Nelson, in which the con- death-sentenced prisoner in Alabama of execution — which is to say, the exe- demned prisoner proposed a different who had severely compromised veins as cution itself — because it shows the type of IV access to obviate the need for a result of years of drug abuse, could complainant is unable or unwilling to a cut-down procedure, the Baze plain- lodge a civil rights action under 42 concede acceptable alternatives.”9 tiffs argued that the risks of maladminis- U.S.C. § 1983 to challenge the state’s The Court explicitly declined to tration were unnecessary, given the exis- planned use of a “cut-down” procedure adopt the heightened pleading standard tence of readily available alternatives to access his vein for execution. The sought by the government, noting that that presented less risk of pain and suf- Court’s reasoning relied in part on the Nelson had not done so. The Court rea- fering. The petitioners proffered one fact that the lawsuit did not “call into soned that as long as the civil rights alternative procedure and one safeguard question the death sentence itself” challenge did not foreclose execution, it to be added to the existing procedure. METHOD OF EXECUTION because it would allow Alabama to exe- was properly styled, and the con- The proposed alternative procedure cute Mr. Nelson, as long as the execu- demned prisoner was not required to called for administration of one drug, a tioner did not use the cut-down proce- plead or prove an alternative method of large barbiturate overdose, which would dure, which the petitioner characterized execution. However, the Court made reduce the risks of harm by simply not as “wholly unnecessary to gain venous clear that if a Section 1983 action using the paralytic or potassium, the access.” The Court acknowledged that sought relief that “would foreclose exe- drugs that cause pain and suffering and Mr. Nelson had “alleged alternatives cution, recharacterizing a complaint as are not necessary to cause death. The that, if they had been used, would have an action for habeas corpus might be proposed safeguard to ensure proper allowed the state to proceed with the proper.”10 As in Nelson, the Court found administration of the existing protocol execution as scheduled,” without the that Mr. Hill’s challenge left the state called upon the state to have a doctor need for a stay of execution. The fact that “free to use an alternative lethal injec- present to monitor the prisoner Mr. Nelson pointed out this alternative tion procedure,” and therefore did not throughout the execution, which would was viewed favorably, as a sign that his bar carrying out his death sentence. reduce risks of harm by better ensuring lawsuit did not seek to invalidate his that the condemned prisoner remains death sentence and, therefore, was not a Baze v. Rees and Alternatives anesthetized until death occurs.13 habeas claim in disguise, as argued by to a Concededly Humane A plurality of the Court agreed that the state, but rather properly brought Execution Procedure maladministration of a humane protocol under Section 1983. After Nelson and Hill, litigation could cause an inhumane, unconstitu- The Court’s analysis in Nelson left no challenging lethal injection procedures tional execution and that risk of malad- doubt that a method-of-execution chal- began to reveal that states were engaging ministration of an execution protocol lenge could not be used to undermine the in risky execution practices and employ- implicates Eighth Amendment protec- validity of the prisoner’s death sentence. ing incompetent execution personnel. In tions.14 A majority of the justices con- Habeas claims call into question the legal- response, courts put executions on hold cluded, however, that the Baze petition- ity of a prisoner’s conviction and/or sen- to review the constitutionality of execu- ers did not meet the “threshold require- tence, whereas a claim under Section tion protocols in those states.11 Follow- ment” of showing a “substantial risk of 1983 traditionally challenges conditions ing the Supreme Court’s grant of certio- serious harm” because the risks of mal- of confinement, i.e., whether the govern- rari in Baze, executions were halted administration presented could not ment is carrying out the sentence in a across the country while the Court con- “remotely be characterized as ‘objectively constitutional manner.8 While a challenge sidered the case. intolerable.’”15 The Baze plurality opinion to the way a lethal injection is performed The Baze plaintiffs did not directly agreed that the showing of “substantial may not initially appear to be a perfect fit challenge the constitutionality of risk” was “the threshold requirement” for for Section 1983, method-of-execution Kentucky’s execution procedure, which a prisoner challenging a method of exe- challenges are distinguishable from called for serial administration of a bar-
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