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vents 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 Row 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 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 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 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 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. N O I T U C E X E F O D O H T E M 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- cution.16 The plurality also discussed, habeas claims precisely because they biturate anesthetic (sodium thiopental), without precisely defining, a role for pro- address only the way in which a depart- followed by a paralytic and concentrated posed, alternative execution procedures ment of corrections performs executions potassium chloride. The plaintiffs con- under the Eighth Amendment, stating and do not disturb underlying convic- ceded that executions would be humane, that “a condemned prisoner cannot suc- tions or sentences. as long as the protocol was performed cessfully challenge a state’s method of The idea that a death-sentenced correctly, because a properly adminis- execution merely by showing a slightly or prisoner ought to provide an alternate tered dose of the barbiturate would place marginally safer alternative.”17

WWW.NACDL.ORG JANUARY/FEBRUARY 2017 47 Instead, the proffered alterna - cution must provide an alternative availability and feasibility of an alterna - tives must effectively address a means to carry out their executions, but tive execution procedure. Next, the “substantial risk of serious several circuit courts interpreted it this Court inverted the standard by first harm.” [] To qualify, the alterna - way. Then the Supreme Court made it addressing the alternative requirement tive procedure must be feasible, official with the Glossip decision. — concluding that the plaintiffs had readily implemented, and in fact Despite sharing obvious similarities “not proved any risk posed by midazo - significantly reduce a substantial — both cases challenged lethal lam is substantial when compared to risk of severe pain. If a state injection procedures under the Eighth known and available alternative meth - refuses to adopt such an alterna - Amendment, and both challenged ods of execution” — before considering tive in the face of these docu - protocols that called for administration the “threshold requirement.” 27 mented advantages, without a of three drugs — Baze and Glossip were By making the provision of an legitimate penological justifica - very different cases that addressed differ - alternate procedure an element of the tion for adhering to its current ent risks of harm. Whereas Baze chal - Eighth Amendment showing, the Court method of execution, then a lenged the risk of pain and suffering that did not address the differences between state’s refusal to change its would result from maladministration of a challenge to an admittedly humane method can be viewed as “cruel a concededly humane procedure, 22 procedure that could be performed and unusual” under the Eighth Glossip challenged the risk of harm incorrectly, thus leading to pain and Amendment .18 caused by use of a drug that is not suited suffering, and a challenge to an inher - to the task of protecting condemned ently risky procedure, in which the risks Given the context of Baze , in prisoners from pain and suffering dur - of harm arise from the actual drugs which the plaintiffs conceded that the ing execution. 23 used. In a dissenting opinion, Justice execution procedure was humane, it Glossip was not a case about safe - Sotomayor called the Court’s conclu - makes sense that they presented alter - guards against maladministration of sion that the petitioners’ challenge natives that would decrease the risk of an otherwise humane procedure. failed because they did not provide an maladministration. It also makes sense Rather, the prisoners in Glossip con - alternative means of execution “legally

N that the Court concluded that a mere tended that ’s execution indefensible” and accused the majority

O showing of a “marginally safer alterna - procedure, performed properly, put of “faulting petitioners for failing to I tive” cannot satisfy the legal standard condemned prisoners at substantial satisfy the wholly novel requirement of T to demonstrate an Eighth Amendment risk of pain and suffering because of proving the availability of an alternative U 28

C violation. However, absent these cir - the use of a benzodiazepine sedative means for their own executions.”

E cumstances — specifically, when a (midazolam) as the first of three Justice Sotomayor plainly laid out the

X petitioner demonstrates that the chal - drugs. The Glossip plaintiffs argued absurdity of the holding that the Eighth E lenged procedure presents a “substan - that the use of midazolam rendered Amendment’s constitutional protection

F tial risk of serious harm” — the state the three-drug procedure inhumane against cruel and unusual punishment 29

O would violate the Eighth Amendment and unconstitutional because the is conditional, rather than absolute. if it carried out an execution using that drug’s properties make it unsuitable D procedure, regardless of the existence for protecting condemned prisoners Secrecy Laws Insulate

O of a less risky procedure. from the known pain and suffering States From Eighth

H caused by the paralytic drug and con - Amendment Challenges T Glossip v. Gross and the centrated potassium chloride. In this As interpreted and applied by trial E Impossible Pleading Standard context, the Court in Glossip explicitly courts, Glossip ’s alternative requirement M The Baze plurality opinion clearly held that “identifying a known and appears to be unprovable. Since Baze , set out to resolve concerns about lethal available alternative method of execu - death-sentenced prisoners have argued injection procedures in a way that tion that entails a lesser risk of pain” that a requirement to provide an alterna - would shut down future lethal injec - than the challenged procedure is “a tive method is unethical and improper. tion litigation and, specifically, prevent requirement of all Eighth Amendment But in just the past year, several courts the litigation from delaying additional method-of-execution claims.” 24 have followed the Supreme Court’s lead executions. 19 Indeed, following the The Glossip Court found that the by dismissing lethal injection challenges decision, courts in Tennessee reversed petitioners did not demonstrate a sub - based on findings that the proffered previous findings of unconstitutional - stantial risk of serious harm because alternatives were either not available or ity, and executions resumed in many they “failed to establish that not feasible, without first examining the jurisdictions. 20 At the same time, how - Oklahoma’s use of a massive dose of constitutionality of the existing proce - ever, serious problems with lethal midazolam in its execution protocol dure. Such analyses cannot stand. Courts injection executions continued, and entails a substantial risk of severe must determine whether the existing troubling information about the pain.” 25 Under Baze , that conclusion procedure meets constitutional muster. states’ execution practices continued should have resolved the case because Moreover, condemned prisoners to come to light. Despite these prob - the plaintiffs had not satisfied the must have access to relevant evidence to lems, many condemned prisoners were “threshold requirement” of demon - support their arguments regarding both told they could not prevail on an strating a substantial risk of serious existing procedures and proffered alter - Eighth Amendment challenge to a harm. 26 While nominally reaffirming natives. Currently, much of that infor - lethal injection procedure unless they the legal standard established in Baze , mation — about drugs and drug acqui - provided an alternative means to carry however, Glossip did not follow that sition, facilities, capabilities, budgets, out their executions. 21 standard. First, the Court combined the , personnel, etc. — is held by The Baze opinion did not hold that “threshold requirement” with a the state, and courts have consistently petitioners challenging a method of exe - requirement that the prisoner prove the refused to order its disclosure. Secrecy

48 WWW.NACDL.ORG THE CHAMPION statutes that make unavailable virtually 562 U.S. 996 (2010) (district court erred in other than the persons specified in all information about execution proce - granting restraining order where the risk of Subsection F of this Section shall remain dures, particularly the sources and kinds harm was speculative because “speculation confidential, shall not be subject to disclo - of drugs used, increase the difficulty. cannot substitute for evidence that the use sure, and shall not be admissible as evi - Petitioners can demonstrate that avail - of the drug is ‘sure or very likely to cause dence nor discoverable in any proceeding able and feasible execution methods serious illness and needless suffering’”). before any court, tribunal, board, agency, exist, 30 but only if the courts insist upon 3. Glossip , 135 S. Ct. at 2731 (citing or person.”); V.A.M.S. 546.720 2-3 (defining transparency from the state and order Baze , 553 U.S. at 61 (plurality opinion)). the pharmacy and pharmacist who pro - discovery regarding the abilities and 4. Baze , 553 U.S. at 50 (quoting Farmer vide compounded drugs as members of capacities of departments of corrections v. Brennan , 511 U.S. 825, 842, 846, and n.9, Missouri’s execution team in order to with regard to performing executions. 114 S. Ct. 1970, (1994)). make their identities confidential under The question remains whether an 5. Baze , 553 U.S. at 53 (quoting Gregg v. the statute that requires confidentiality for alternative method of execution pre - Georgia , 428 U.S. 153, 175 (1976) (joint opin - persons “who administer or provide direct sented in the course of litigation has any ion of Stewart, Powell, and Stevens, JJ.)). support for the administration of the constitutional, legal, or real-world rele - 6. Glossip , 135 S. Ct. at 2731. lethal chemicals.”); N.C. G.S. § 132-1.2 vance. There is no scheme by which a 7. See, i.e., A.R.S. § 13-757 C (“The iden - (exempts from disclosure the “name, court can order a state agency to carry tity of and other persons address, qualifications, and other identify - out an execution according to a proce - who participate or perform ancillary func - ing information of any person or entity dure crafted by a condemned prisoner, tions in an execution and any information that manufactures, compounds, prepares, and, generally speaking, courts tend to contained in records that would identify prescribes, dispenses, supplies, or adminis - be reluctant to order states to act. The those persons is confidential and is not ters the drugs or supplies obtained for any alternative requirement effectively subject to disclosure pursuant to title 39, purpose authorized by Article 19 of forces petitioners into the role of policy chapter 1, article 2.”); AR C ODE § 5-4-617(g) Chapter 15 of the General Statutes.”); OHIO maker, which simply cannot work, (2014) (“The procedures under subdivision CODE § 2949.221 (“(B) If, at any time prior to because state statutes direct depart - (e)(1) of this section and the implementa - the day that is 24 months after the effec - M

ments of corrections to develop and tion of the procedures under subdivision tive date of this section, a person manufac - E promulgate execution procedures. 31 (e)(1) of this section are not subject to dis - tures, compounds, imports, transports, dis - T When plaintiffs have presented straight - closure under the Freedom of Information tributes, supplies, prescribes, prepares, H O forward alternatives, such as the firing Act of 1967.”); FLA . S TAT . § 945.10(l)(g) administers, uses, or tests any of the com - squad or use of an inert gas, courts balk, (“Except as otherwise provided by law or pounding equipment or components, the D

announcing that the options are not in this section, the following records and active pharmaceutical ingredients, the O information held by the Department of drugs or combination of drugs, the med -

“available” because they are not permis - F 32 sible under the state’s statute. Corrections are confidential and exempt ical supplies, or the medical equipment Although the provision of an from the provisions of s. 119.07(1) and s. used in the application of a lethal injection E X 24(a), Art. I of the State Constitution: … of a drug or combination of drugs in the

alternative procedure — or recogni - E

tion that constitutional options exist Information which identifies an execution - administration of a death sentence by C

— originated as a reassurance in the er, or any persons prescribing, preparing, lethal injection as provided for in division U

course of litigation that a prisoner’s compounding, dispensing, or administer - (A) of section 2949.22 of the Revised Code, T

death sentence was not itself at issue, ing a lethal injection.”); GA. C ODE ANN ., § 42- notwithstanding any provision of law to I O the notion of providing an alternative 5-36(d)(2) (“The identifying information of the contrary, all of the following apply procedure has taken on a perverse life any person or entity who participates in or regarding any information or record in the N of its own. This is an insidious aspect administers the execution of a death sen - possession of any public office that identi - of the legal standard: it would allow tence and the identifying information of fies or reasonably leads to the identifica - states to continue acting in an uncon - any person or entity that manufactures, tion of the person and the person’s partic - stitutional manner because men and supplies, compounds, or prescribes the ipation in any activity described in this women on death row were not able to drugs, medical supplies, or medical equip - division: (1) The information or record shall convince the court of an alternative ment utilized in the execution of a death be classified as confidential, is privileged means to carry out their executions. sentence shall be confidential and shall under law, and is not subject to disclosure not be subject to disclosure under Article by any person, state agency, governmental Notes 4 of Chapter 18 of Title 50 or under judicial entity, board, or commission or any 1. Baze v. Rees , 553 U.S. 35 (2008); Glossip process. Such information shall be classi - political subdivision as a public record v. Gross , 576 U.S. __, 135 S. Ct. 2726 (2015). fied as a confidential state secret.”); LSA- under section 149.43 of the Revised Code 2. See, i.e., Nelson v. Campbell, 541 U.S. R.S. 15:570 G (“The identity of any persons or otherwise.”); SDCL § 23A-27A-31.2 637, 650 (2004) (“there is a strong equitable other than the persons specified in (“Confidentiality of identity of person or presumption against the grant of a stay Subsection F of this Section who partici - entity supplying or administering intra - where a claim could have been brought at pate or perform ancillary functions in an venous injection substance — Violation as such a time as to allow consideration of the execution of the death sentence, either misdemeanor. The name, address, qualifi - merits without requiring entry of a stay”); directly or indirectly, shall remain strictly cations, and other identifying information Hill v. McDonough , 547 U.S. 573, 584 (2006) confidential and the identities of those relating to the identity of any person or (“like other stay applicants, inmates seeking persons and information about those per - entity supplying or administering the time to challenge the manner in which the sons which could lead to the determina - intravenous injection substance or sub - state plans to execute them must satisfy all tion of the identities of those persons shall stances under chapter 23A-27A are confi - of the requirements for a stay, including a not be subject to public disclosure in any dential. Disclosure of the foregoing infor - showing of a significant possibility of suc - manner. Any information contained in mation may not be authorized or ordered. cess on the merits”); Brewer v. Landrigan, records that could identify any person Disclosure of confidential information pur -

WWW.NACDL.ORG JANUARY/FEBRUARY 2017 49 suant to this section concerning the exe - finement claim, and therefore is cognizable 1072 (8th Cir. 2007) (reversing finding of cution of an inmate under chapter 23A- in a Section 1983 action. But where a pris - unconstitutionality following Baze decision). 27A is a Class 1 misdemeanor.”); T. C. A. oner contends that execution per se consti - 21 . In re Lombardi , 741 F.3d 888, 895-96 § 10-7-504 (h)(1) (“identifying an individ - tutes cruel and unusual punishment — i.e., (8th Cir. 2014); Whitaker v. Livingston , 732 ual as a person who has been or may in that the particular method of execution F.3d 465, 468 (5th Cir. 2013); Valle v. Singer , the future be directly involved in the being contemplated by the state and any 655 F.3d 1223, 1237 (11th Cir. 2011); Cooey v. process of executing a sentence of death other method of execution would be Strickland , 589 F.3d 210, 220 (6th Cir. 2009). shall be treated as confidential and shall unconstitutional — that claim amounts to a 22 . Baze , 553 U.S. at 62 (“Petitioners not be open to public inspection. For the challenge to the prisoner’s sentence agree that, if administered as intended, that purposes of this section ‘person’ includes, because it effectively seeks a reduction in procedure will result in a painless death.”). but is not limited to, an employee of the the sentence from death to life imprison - 23 . Brief for Petitioners, Glossip v. Gross , state who has training related to direct ment, and therefore is cognizable only in a 576 U.S. __, 135 S. Ct. 2726 (2015) . involvement in the process of executing a habeas petition.”). 24 . Glossip , 135 S. Ct. at 2731 (citing sentence of death, a contractor or employ - 10 . Hill , 547 U.S. at 582 (quoting Nelson , Baze , 553 U. S. at 61 (plurality opinion)). See ee of a contractor, or a volunteer who has 541 U.S. at 644, 646). also Kelley v. Johnson , 2016 Ark. 268 (slip. op. direct involvement in the process of exe - 11 . See, i.e., Taylor v. Crawford , No. 05- at 15) (“As the Court made clear in Glossip , cuting a sentence of death. Records made 4173-CV-C-FJG, 2006 WL 1779035, (W.D. the burden of showing a known and avail - confidential by this section include, but Mo. Jun. 26, 2006); Morales v. Tilton , 465 F. able alternative is a substantive component are not limited to, records related to remu - Supp. 2d 972 (N.D. Cal. 2006). of an Eighth Amendment method-of-exe - neration to a person in connection with 12 . Baze , 553 U.S. at 49. See also cution claim.”). such person’s participation in or prepara - Glossip , 135 S. Ct. at 2737 ( Baze plaintiffs 25 . Glossip , 135 S. Ct. 2731. tion for the execution of a sentence of “conceded that the protocol, if properly 26 . Baze , 553 U.S. at 52, n.3. death. Such payments shall be made in administered, would result in a humane 27 . Glossip , 135 S. Ct. at 2737. accordance with a memorandum of and constitutional execution because 28 . Glossip , 135 S. Ct. at 2781 understanding between the commission - sodium thiopental would render an (Sotomayor, J., dissenting) (emphasis

N er of correction and the commissioner of inmate oblivious to any pain caused by added). See also id. at 2794 (“Nowhere did

O finance and administration in a manner the second and third drugs.”). the plurality suggest that all challenges I that will protect the public identity of the 13 . Baze , 553 U.S. at 51 (“Much of peti - to a state’s method of execution would T recipients; provided, if a contractor is tioners’ case rests on the contention that require this sort of comparative-risk U employed to participate in or prepare for they have identified a significant risk of harm analysis. Recognizing the relevance of C

E the execution of a sentence of death, the that can be eliminated by adopting alterna - available alternatives is not at all the

X amount of the special payment made to tive procedures, such as … additional moni - same as concluding that their absence E such contractor pursuant to the contract toring by trained personnel to ensure that precludes a claimant from showing that a

F shall be reported by the commissioner of the first dose of sodium thiopental has been chosen method carries objectively intol -

O correction to the comptroller of the treas - adequately delivered.”). erable risks.”).

ury and such amount shall be a public 14 . Baze , 553 U.S. at 53 (“It is uncontest - 29 . Glossip , 135 S. Ct. at 2793

D record. (2) Information made confidential ed that, failing a proper dose of sodium (Sotomayor, J., dissenting) (“The Court

O by this subsection (h) shall be redacted thiopental that would render the prisoner today, however, would convert this categor -

H wherever possible and nothing in this sub - unconscious, there is a substantial, consti - ical prohibition into a conditional one.”). T section (h) shall be used to limit or deny tutionally unacceptable risk of suffocation 30 . See, i.e., Plaintiff’s Second E access to otherwise public information from the administration of pancuronium Amended Complaint, Whitaker v. M because a file, a document, or data file bromide and pain from the injection of Livingston , U.S. District Court for the contains confidential information.”); TEX . potassium chloride.”). Southern District of , 4:13-CV-02901 GOV . C ODE ANN . § 552.1081 (“Information is 15 . Baze , 553 U.S. at 62. (Sept. 11, 2015) (presenting alternative excepted from the requirements of 16 . Baze , 553 U.S. at 52 n.3. lethal injection procedure with a single Section 552.021 if it contains identifying 17 . Baze , 553 U.S. at 51. dose of an FDA-approved barbiturate, information under Article 43.14, Code of 18 . Baze , 553 U.S. at 52 (quoting with appropriate safeguards and selected Criminal Procedure, including that of: (1) Farmer , 511 U.S. at 842). and purchased through a transparent any person who participates in an execu - 19 . See, e.g., Baze , 553 U.S. at 61 (“[T]he process); Amended Complaint for tion procedure, including a person who standard we set forth here resolves more Declaratory and Injunctive Relief, Johnson uses, supplies, or administers a substance challenges than [Justice Stevens’s concur - v. Kelley , Circuit Court of Pulaski County, during the execution; and (2) any person ring opinion] acknowledges. A stay of exe - Arkansas, No. 60CV-15-2921 (Sept. 28, or entity that manufactures, transports, cution may not be granted on grounds 2015) (presenting three alternative lethal tests, procures, compounds, prescribes, such as those asserted here unless the con - injection procedures, the firing squad, dispenses, or provides a substance or sup - demned prisoner establishes that the death by anesthetic gas overdose (three plies used in an execution.”). State’s lethal injection protocol creates a gasses), and death by opioid patch); Third 8. Nelson, 541 U.S. at 645-647; Hill, 547 demonstrated risk of severe pain. He must Amended Complaint, Arthur v. Dunn , U.S. U.S. at 578-583; Glossip , 135 S. Ct. at 2738. show that the risk is substantial when com - District Court Middle District of Alabama, 9. Hill , 547 U.S. at 582. See also Brief for pared to the known and available alterna - 2:11-cv-438 (Oct. 13, 2015) (presenting the United States as Amicus Curiae, at 6-7, tives. A State with a lethal injection protocol two alternative, single-drug lethal injec - Hill v. McDonough, 547 U.S. 573 (2006) substantially similar to the protocol we tion procedures and the firing squad). (“Where a prisoner challenges a particular uphold today would not create a risk that 31 . ALA . C ODE 1975 § 15-18-82( C) (“The method of execution but identifies an alter - meets this standard.”). warden of the William C. Holman unit of the native, permissible method of execution, 20 . Harbison v. Little , 571 F.3d 531(6th that claim is akin to a conditions-of-con - Cir. 2009); see also Taylor v. Crawford , 487 F.3d (Continued on page 61)

50 WWW.NACDL.ORG THE CHAMPION Legally Indefensible: Membership Application Requiring Death Row Prisoners to Prove Available SPECIAL INTRODUCTORY OFFER: Execution Alternatives 15 months of NACDL® membership for the price of 12! (New members only) (Continued from page 50) ___ YES! Sign me up as a new member of NACDL® and start prison system at Atmore or, in case of his or my subscription to The Champion ® today! her death, disability, or absence, his or her deputy, shall be the . In the case Applicant Name: ______of execution by lethal injection, the war - Referred By: ______den, or in the case of his or her death, dis - Firm Name: ______ability, or absence, his or her deputy, may designate an employee of the unit to Address: ______administer the lethal injection. In the event City: ______State: ______Zip: ______of the death or disability or absence of both Date of Birth: ______Gender: ______the warden and deputy, the executioner Phone: ______shall be that person appointed by the Commissioner of the Department of Fax: ______Corrections.”); ARIZ . R EV . S TAT . A NN . § 13-757A E-mail: ______(“The penalty of death shall be inflicted by State Bar(s) & Admission Date(s): ______an intravenous injection of a substance or Bar Number(s): ______substances in a lethal quantity sufficient to cause death, under the supervision of the M

state department of corrections.”); ARK . C ODE E

I certify that I meet the criteria for the membership category to which I am applying. T o ANN . § 5-4-617(e) (“the Director of the o Attorneys: I am a member of the bar in good standing and I am not subject to suspension Department of Correction shall develop H

or disbarment in any jurisdiction. I understand that prosecutors are not eligible to be O NACDL ® members. logistical procedures necessary to carry out D Signature: ______Date: ______the sentence of death”); CAL . P ENAL CODE §

3604(a) (“The punishment of death shall be O inflicted by the administration of a lethal I qualify for the following membership category (Please check one) F

gas or by an intravenous injection of a sub - Membership Categories: Annual Dues: stance or substances in a lethal quantity E X Regular $329 sufficient to cause death, by standards o E o New Lawyer* $185 established under the direction of the C o Law Professor $169 Department of Corrections.”); COLO . R EV . S TAT . U Fedl. or State Public Defender** $139 § 18-1.3-1204 (“The executive director of T o the department of corrections, at the I Judge $195 O o expense of the state of , shall pro -

Military $169 N o vide a suitable and efficient room or place, Law Student $65 o enclosed from public view, within the walls o Associate $195 of the correctional facilities at Canon City o International $185 and therein at all times have in preparation o Sustaining $479 all necessary implements requisite for car - o President’s Club $699 rying into execution the death penalty by o Life Member*** $6,500 means of the administration of a lethal * New Lawyer Membership — for members of the bar for less than 5 years injection. The execution shall be performed ** Public Defender Membership — for full-time attorney at government in the room or place by a person selected PD office or legal services nonprofit by the executive director and trained to *** Life Membership — a one-time contribution; or 5 installments over 5 consecutive years administer intravenous injections.); FLA . Credit Card #: ______STAT . tit. XLVII, § 922.10 (“A death sentence Expiration Date: ______Card Type: ______shall be executed by electrocution or lethal Billing Address: ______injection in accordance with s. 922.105. The warden of the state prison shall designate Name on Card: ______the executioner.); GA. C ODE ANN ., § 17-10-38 Signature :______(“In all cases in which the defendant is sen - www.nacdl.org / [email protected] tenced to death, it shall be the duty of the trial judge in passing sentence to direct Membership Hotline: 202-872-4001 that the defendant be delivered to the Use Promo Code: Department of Corrections for execution of IP154 the death sentence at a state correctional Return by FAX to: (202) 872-4002, Attn: NACDL® Membership Director institution designated by the department.); Or Mail with Check Payable to NACDL®: 1660 L St. NW, 12th Fl. Washington, DC 20036 IDAHO CODE § 19-2716 (“The punishment of death shall be inflicted by continuous, JANUARY/FEBRUARY 2017 61 intravenous administration of a lethal person selected by the director of rehabili - not readily implemented and available quantity of a substance or substances tation and correction shall ensure that the method of execution because it is not approved by the director of the Idaho death sentence is executed); 22 OKLA . S TAT . authorized by statute); Order, Arthur v. department of correction until death is pro - ANN . § 1015B (“The judgment of execution Dunn , No. 2:11-cv-438 (M.D. Ala. Oct.5, nounced by a or a deputy coroner. shall take place under the authority of the 2015) (“firing squad is not permitted by The director of the Idaho department of director of the Department of Corrections statute and, therefore, is not a method of correction shall determine the procedures and the warden must be present along execution that could be considered to be used in any execution. This act shall with other necessary prison and correc - either feasible or readily implemented by apply to all executions carried out on and tions officials to carry out the execution.”); Alabama right now”). n after the effective date of this enactment, TENN . C ODE ANN . § 40-23-114(c) (“The depart - irrespective of the date sentence was ment of correction is authorized to promul - About the Author imposed.”); KRS § 431.220 (“(2) All execu - gate necessary rules and regulations to tions of the death penalty by electrocution facilitate the implementation of this sec - Megan McCracken is the Eighth or lethal injection shall take place within tion.”); TEX . C RIM . P ROC . C ODE ANN . art. 43-14(a) Amendment Re - the confines of the state penal institution (West) (“Whenever the sentence of death is source Counsel with designated by the Department of pronounced against a convict, the sentence the U.C. Berkeley Corrections, and in an enclosure that will shall be executed at any time after the hour School of Law’s exclude public view thereof.”); LSA-R.S. of 6 p.m. on the day set for the execution, by Death Penalty Clin - 15:568 (“The secretary of the Department intravenous injection of a substance or sub - ic. She provides liti - of Public Safety and Corrections, or a com - stances in a lethal quantity sufficient to gation support and petent person selected by him, shall exe - cause death and until such convict is dead, expert consultation cute the offender in conformity with the such execution procedure to be deter - to attorneys who death warrant issued in the case. Until the mined and supervised by the director of are challenging lethal injection practices. time of his execution, the Department of the correctional institutions division of the Public Safety and Corrections shall incarcer - Texas Department of Criminal Justice.”); VA. Megan McCracken M

ate the offender in a manner affording CODE ANN . § 53.1-234 (“Execution by lethal University of , Berkeley E maximum protection to the general public, injection shall be permitted in accordance School of Law T the employees of the department, and the with procedures developed by the Boalt Hall H O security of the institution.”); MISS . C ODE ANN . Department.”). Berkeley, California § 99-19-51 (“(2) The Commissioner of the 32 . Kelley v. Johnson , 496 S.W.3d 346 510-642-1741 D E- MAIL [email protected]

Department of Corrections shall select an (Ark. 2016) (finding that proposed O execution team to assist the executioner method of execution by firing squad was F

and his deputies. This team, including the state executioner and his deputies who are E THE CHAMPION ® ADVISORY BOARD X responsible for the administration of lethal E

chemicals, shall consist of those persons, Co-Chairs C

such as medical personnel, who provide n Lawrence Goldman n Ephraim Margolin n Ellen Podgor n Natman Schaye U

direct support for the administration of Charles J. Aron Anthony R. Cueto Tova Indritz George H. Newman Charles M. Sevilla T

lethal chemicals. This team shall also Amy Baron-Evans Betty Layne DesPortes Richard S. Jaffe Steve Oberman David M. Siegel I O include those individuals involved in assist - James A. H. Bell Daniel Dodson Evan A. Jenness Cynthia Hujar Orr David B. Smith ing in the execution in any capacity, as well Barbara Bergman Joshua L. Dratel Ashish S. Joshi Timothy P. O’Toole Russell Stetler N Donald A. Bosch Patrick J. Egan Kathryn M. Kase John T. Philipsborn Ed Suarez as those personnel assigned to specific Stephen B. Bright Maureen Essex Elizabeth Kelley Linda Friedman Ramirez Kristina W. Supler duties related to an execution.”); N.C.G.S.A. Ellen C. Brotman James E. Felman G. Jack King Mark P. Rankin William R. Terpening § 15-188 (“[T]he mode of executing a death C. Justin Brown Ian N. Friedman Richard G. Lillie Marc S. Raspanti Gerald F. Uelmen sentence must in every case be by adminis - Alexander Bunin Jeffrey C. Grass Thomas F. Liotti Norman L. Reimer Susan J. Walsh Todd Bussert Andrea G. Hirsch Demosthenes Lorandos Speedy Rice C. Rauch Wise tering to the convict or felon an intra - Tom Conom Edward J. Edward A. Mallett Jon Sands Ellen Yaroshefsky venous injection of a substance or sub - Kari Converse Imwinkelried Irwin Schwartz Rachel Zysk stances in a lethal quantity sufficient to cause death and until the person is dead, THE CHAMPION ®

and that procedure shall be determined by THE CHAMPION ® (ISSN 0744-9488) is published Statements and opinions expressed in THE the secretary of the Department of Public monthly, except for January/February and CHAMPION ® are those of the authors and are not Safety, who shall ensure compliance with September/October, which are bimonthly, by the necessarily those of the NACD L®. The information the federal and state constitutions; and National Association of Criminal Defense contained in THE CHAMPION ® should not be ® when any person, convict or felon shall be Lawyers , Inc. Printed in the United States of construed as client-specific legal advice. America. Basic subscription rate $65 per year Publication of advertisin g does not imply sentenced by any court of the state having when received as a benefit of NACDL endorsement. All advertising is subject to the competent jurisdiction to be so executed, membership. Non-member subscriptions are approval of the Publisher. Advertiser and the punishment shall only be inflicted with - $100 annually in the U.S. or $125 if mailed outside advertising agency assume liability for all content in a permanent death chamber which the the U.S. Periodicals postage paid at Washington, (including text, representation, and claims arising DC and additional mailing offices. Postmaster: therefrom against the publisher). superintendent of the state penitentiary is Send address changes to THE CHAMPION ®, 1660 L Absent prior written agreement, material hereby authorized and directed to provide Street, NW, 12th Floor, Washington, DC 20036. published in THE CHAMPION ® remains the property within the walls of the North Carolina peni - THE CHAMPION ® is published in the interest of of the NACDL ®. No material, or parts thereof, may tentiary at Raleigh, North Carolina.”); OHIO the members of the National Association of be reproduced or used out of context without Criminal Defense Lawyers ® to inform and prior approval of and proper credit to the REV . C ODE ANN . § 2949.22B (West) (the war - educate the membership and to improve magazine. den of the correctional institution in which communication within the criminal defense © 2017 National Association of Criminal the sentence is to be executed or another community. See www.nacdl.org for details. Defense Lawyers ®, Inc.

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