Stacey Johnson v. Asa Hutchinson, 44 F.4th 1116

Plaintiffs (Stacey Johnson and eight other Arkansas death-row inmates) sued the governor and the director of the Arkansas Division of Correction, alleging the State’s three-drug lethal-injection protocol violates the Eighth Amendment.
Arkansas’s protocol: an initial 500 mg dose of midazolam (with a second 500 mg if the inmate remains responsive after tests), then vecuronium bromide (paralytic), then potassium chloride (to stop the heart).
At a bench trial the district court found plaintiffs failed to prove the protocol creates a substantial risk of severe pain and alternatively failed to show a feasible, readily implemented alternative; it also denied a motion for new trial based on newly discovered evidence about pentobarbital.
Plaintiffs argued midazolam has a “ceiling effect” at ~0.2–0.4 mg/kg such that many persons would remain aware of pain at the doses used in the protocol; they relied on expert testimony and studies.
State experts disputed that a ceiling effect is established in humans at the relevant doses and emphasized lack of clinical studies using the very large doses at issue.
The Eighth Circuit reviewed fact findings for clear error and legal conclusions de novo and affirmed the district court judgment for the State.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Arkansas’s protocol presents a "substantial risk" of severe pain	Midazolam’s ceiling effect means many will remain sensate at the protocol dose and thus feel pain from vecuronium/potassium chloride	No reliable human evidence establishes a ceiling effect at the 500 mg dose; experts disagree and no consensus exists	Affirmed: plaintiffs failed to show the protocol is "sure or very likely" to cause severe pain
Whether a feasible, readily implemented alternative exists that would significantly reduce risk	Single-drug pentobarbital would avoid the asserted risk	State did not have to consider alternatives unless plaintiffs first proved substantial risk	Affirmed: alternative analysis unnecessary because plaintiffs did not satisfy first prong
Adequacy of district court factual findings under Rule 52	Court failed to address certain studies and specific evidence of ceiling effect	Court adequately summarized expert disputes and reasoning; need not mention every piece of evidence	Affirmed: findings sufficient for appellate review; no clear error
Whether new-trial motion based on federal pentobarbital evidence warranted relief	Newly discovered evidence of federal access to pentobarbital makes alternative feasible and would change outcome	Even if available, the evidence is immaterial because plaintiffs failed to show the existing method posed the required substantial risk	Affirmed: denial of new trial not an abuse of discretion

Glossip v. Gross, 576 U.S. 863 (2015) (establishes two-part test for method-of-execution Eighth Amendment claims: substantial risk of severe pain and feasible alternative)
Baze v. Rees, 553 U.S. 35 (2008) (plurality articulates risk standard for lethal-injection challenges)
Bucklew v. Precythe, 139 S. Ct. 1112 (2019) (plaintiff must show feasible, readily implemented alternative that significantly reduces risk)
McGehee v. Hutchinson, 854 F.3d 488 (8th Cir. 2017) (earlier en banc vacatur of district-court injunction; discussed need for reliable human evidence)
Williams v. Kelley, 854 F.3d 998 (8th Cir. 2017) (relying on lack of scientific consensus to reject method-of-execution challenge)
In re Ohio Execution Protocol Litig., 946 F.3d 287 (6th Cir. 2019) (describes the rigorous showing required for execution-protocol challenges)
Barr v. Lee, 140 S. Ct. 2590 (2020) (per curiam) (noting execution-protocol claims face an exceedingly high bar)
Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260 (11th Cir. 2014) (speculation cannot substitute for evidence that a drug is "sure or very likely" to cause severe pain)