Marcel Williams v. Wendy Kelley
2017 U.S. App. LEXIS 7157
| 8th Cir. | 2017Background
- Marcel Williams, an Arkansas death-row inmate with morbid obesity, diabetes with neuropathy, hypertension, and sleep apnea, filed an as-applied Eighth Amendment challenge to Arkansas’ three-drug lethal injection protocol shortly before his scheduled execution.
- Williams previously and contemporaneously participated in broader challenges to the same protocol; the court found he did not raise his individualized as-applied claim earlier.
- At a district-court evidentiary hearing Williams presented Dr. Joel Zivot, who opined that Williams’ medical conditions (including ~400 lb weight and difficult IV access) create a substantial risk that midazolam would not produce adequate anesthesia and that death could be experienced as choking and suffocation.
- The State presented evidence that a medically trained person using ultrasound can obtain IV access and that 500 mg of midazolam would render a 400-pound person unconscious, minimizing risk from Williams’ conditions.
- The district court denied a preliminary injunction and a stay; the Eighth Circuit affirmed, finding Williams failed to show a significant likelihood of success on the merits and that he unreasonably delayed and engaged in piecemeal litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the protocol as applied creates a substantial risk of severe pain (Eighth Amendment) | Williams: his conditions make midazolam unreliable; execution likely to cause choking/suffocation and serious harm | State: evidence shows midazolam dose and IV techniques suffice; risk is speculative and not sure or very likely to cause severe pain | Held: Williams failed to show the protocol is "sure or very likely" to cause severe pain; evidence is equivocal |
| Whether Williams must identify a known, available alternative method in an as-applied challenge | Williams: as-applied claim need not identify a different method | State: Glossip requires identifying a known, available alternative that would substantially reduce risk | Held: Court requires identification of a known, available alternative (consistent with Johnson and Glossip); Williams’ suggested alternatives insufficient |
| Whether Director Kelley’s vein-check evidence shows State refusal to accommodate a feasible alternative | Williams: vein-check shows the State could have/should have used alternative procedures tailored to him | State: vein-check shows the State already implements safeguards and assesses infusion sites pre-execution | Held: The vein-check demonstrates state safeguards, not an unreasonable refusal to adopt a feasible alternative |
| Whether Williams’ delay and piecemeal litigation bars a stay | Williams: some conditions (sleep apnea) were newly diagnosed; needed recent exam after execution date set | State: Williams and co-plaintiffs raised earlier challenges and failed to timely assert as-applied claims | Held: Court found unreasonable delay and piecemeal litigation; dilatory tactics sufficient to deny a stay |
Key Cases Cited
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (Eighth Amendment standard: method must be "sure or very likely" to cause severe pain to establish unconstitutionality)
- Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion establishing framework for method-of-execution challenges)
- Hill v. McDonough, 547 U.S. 573 (2006) (procedural posture and timing considerations in execution-method challenges)
- Johnson v. Lombardi, 809 F.3d 388 (8th Cir. 2015) (stay standards and requirement to show significant possibility of success on the merits)
- Bucklew v. Lombardi, 783 F.3d 1120 (8th Cir. 2015) (as-applied framework: state’s unreasonable refusal to adopt a feasible alternative may satisfy Glossip in unusual cases)