McGehee v. Hutchinson
2017 U.S. App. LEXIS 6544
| 8th Cir. | 2017Background
- Nine Arkansas death-row prisoners filed a §1983 challenge to the State’s three-drug lethal‑injection protocol (500 mg midazolam → 100 mg vecuronium bromide → potassium chloride), alleging an Eighth Amendment risk of severe pain; Arkansas scheduled eight executions across four dates in April 2017 (two per night).
- The district court held a four‑day evidentiary hearing and entered stays of execution, finding (a) plaintiffs did not delay unreasonably, (b) a significant possibility plaintiffs would succeed on showing an objectively intolerable risk from midazolam, and (c) a significant possibility that known, available alternatives would reduce that risk.
- The State moved to vacate the stays; the Eighth Circuit (initially en banc) granted the State’s motion, vacating the district court’s stays and concluding the district court abused its discretion.
- The majority emphasized (1) a strong equitable presumption against stays where plaintiffs unduly delayed litigating federal claims, (2) plaintiffs failed to meet the Glossip/Baze “sure or very likely” (substantial risk) standard on the record, and (3) plaintiffs did not identify alternatives that were demonstrably known, accessible, and readily implementable.
- A dissent argued the district court reasonably found a substantial Eighth Amendment risk when midazolam, the compressed execution schedule (eight executions in eleven days), and the State’s lack of contingency planning are considered together; the dissent would have affirmed the stays.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural delay / stay presumption | Delay was justified; claim arose after state-court process and Governor’s scheduling | Plaintiffs could and should have raised federal Eighth Amendment claim earlier; delay triggers strong presumption against a stay | Court: Plaintiffs unreasonably delayed; presumption against stay applies and weighs against relief |
| Eighth Amendment — risk from midazolam (likelihood of success) | Midazolam at 500 mg may not produce general anesthesia; evidence (studies, witnesses, executions) shows substantial risk of severe pain | Evidence is equivocal; no consensus that midazolam is "sure or very likely" to cause severe pain; district court did not apply Glossip/Baze standard properly | Court: District court’s findings do not show likelihood of success under the rigorous Glossip/Baze standard; vacate stay |
| Availability of known, feasible alternatives | Alternatives (manufactured/compounded pentobarbital, sevoflurane, nitrogen hypoxia, firing squad, or rescheduling) are available or realistically obtainable and would significantly reduce risk | Alternatives are speculative, not on hand, not authorized, or untested; State lacks ready access and ability to implement quickly | Court: Alternatives were too speculative or unproven to satisfy the required availability/feasibility standard; vacate stay |
| Combined claim: protocol + compressed schedule + inadequate contingency plans | Combined features create compounding risk (staff fatigue, lack of rehearsals/debriefs, no contingency plans), making substantial risk likely; rescheduling is a feasible alternative | Schedule motivated by drug shelf life; State has penological justification to adhere to protocol and schedule; risks tied to midazolam alone are insufficient | Court majority: Schedule is not dispositive; district court abused discretion overall and stays vacated. Dissent: combination justified injunction; would have affirmed stays |
Key Cases Cited
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (establishes burden in method‑of‑execution claims: substantial risk and known, available alternatives)
- Baze v. Rees, 128 S. Ct. 1520 (2008) (plurality establishing standard for Eighth Amendment method‑of‑execution challenges)
- Hill v. McDonough, 126 S. Ct. 2096 (2006) (stay presumption where claim could have been brought earlier)
- Nelson v. Campbell, 124 S. Ct. 2117 (2004) (same principle on equitable presumption against stay)
- Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016) (describes more demanding test for whether alternative methods are actually available and implementable)
- Roper v. Simmons, 125 S. Ct. 1183 (2005) (Eighth Amendment and evolving standards of decency framework)
- Atkins v. Virginia, 122 S. Ct. 2242 (2002) (use of objective evidence and evolving standards in Eighth Amendment analysis)
- Anderson v. Bessemer City, 105 S. Ct. 1504 (1985) (clear‑error standard for review of factual findings)
- Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) (consideration of objective evidence and public standards in Eighth Amendment questions)