RICHARD GLOSSIP, et al., Plaintiffs, -vs- RANDY CHANDLER, et al., Defendants.
Case No. CIV-14-0665-F
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
August 11, 2021
Before the court is defendants’ motion for summary judgment, doc. no. 388. By this order, the motion is granted in part and denied in part.
This action challenges Oklahoma‘s execution protocol under the
A. Procedural History
Including doc. no. 392, which was stricken, and doc. no. 397, which is moot because it replied to doc. no. 392, the motion for summary judgment resulted in the following filings:
| Date filed | Doc. No. | Filed by | Name of Document |
|---|---|---|---|
| 2-19-21 | 388 | Defendants | Defendants’ Motion for Summary Judgment and Brief in Support |
| 3-19-21 | 392 | Plaintiffs | Opposition of plaintiffs (other than Wade Lay) to Defendants’ Summary Judgment Motion (stricken,1 along with doc. nos. 393 and 394) |
| 3-26-21 | 397 | Defendants | Reply in Support of Defеndants’ Motion for Summary Judgment (superseded by doc. no. 433) |
| 5-7-21 | 422 | Defendants | Defendants’ Supplemental Brief in Support of Their Motion for Summary Judgment |
| 5-14-21 | 425 | Plaintiffs | Opposition of Plaintiffs (other than Wade Lay) to Defendants’ Summary Judgment Motion |
| 5-27-21 | 433 | Defendants | Reply in Support of Defendants’ Motion for Summary Judgment |
B. Plaintiffs’ Claims
In their Third Amended Complaint, doc. no. 325, filed on July 6, 2020, plaintiffs asserted the following claims:
| Count I | Fifth2 Amendment Due Process claim based on asserted failure to disclose sufficient information re: development of the protocol and execution procedures. Dismissed per order at doc. no. 349. |
| Count II | Eighth Amendment claim asserting that constitutionally impermissible pain and suffering will result from the use of the three-drug lethal injection protocol (midazolam, vecuronium bromide and potassium chloride). |
| Count III | Eighth and Fifth3 Amendment claim asserting “deliberate indifference” to the serious medical needs of the plaintiffs. Dismissed per order at doc. no. 349. |
| Count IV | First, Fifth4 and Sixth Amendment claim asserting unconstitutional denial of access to counsel and the courts. |
| Count V | |
| Count VI | Ex Post Facto claim under U.S. and Oklahoma Constitutions, based on substitution of midazolam. |
| Count VII | Fourteenth Amendment Due Process claim based on use of midazolam instead of barbiturate. |
| Count VIII | Religious freedom claim asserting violation of plaintiffs’ sincerely-held religious beliefs resulting from necessity of proposing a feasible alternative method of execution. Dismissed per order at doc. no. 349. |
| Count IX | Eighth and Fourteenth Amendment claim asserting that plaintiffs will be subjected to constitutionally impermissible human experimentation. |
| Count X | First and Fourteenth Amendment claim asserting denial of right of access to governmental information. |
C. Summary Judgment Standard
Under
The heart of plaintiffs’ case is Count II, their direct Eighth Amendment challenge to the lethal injection protocol adopted by the State of Oklahoma on February 20, 2020.5 The protocol includes three alternatives for execution by lethal injection, as set forth in Chart A, Chart B and Chart D (Chart C is reserved). Chart A contemplates completion of the execution with a single dose of pentobarbital. Similarly, Chart B specifies a single dose of sodium pentothal. Those two drugs have been used successfully in numerous executions, but “a practical obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.” Glossip v. Gross, 576 U.S. 863, 869-70 (2015) (this case at earlier stage). Consequently, Chart D of the Oklahoma protocol provides for sequential use of three readily-available drugs, midazolam, vecuronium bromide (a paralytic) and potassium chloride (to induce cardiac arrest). The actual effect of midazolam is hotly contested in this action, as it has been in other cases in other courts.
Plaintiffs’ principal claim is that midazolam cannot be relied upon to render the prisoner undergoing execution by lethal injection insensate to pain, with the result that execution using Chart D of the protocol will subject the prisoner to a constitutionally unacceptable risk of severe pain and suffering as the lethal injection process proceeds. Plaintiffs also challenge other features of the protocol, including, prominently, the adequacy of the provision for a consciousness check to be performed after the midazolam is injected but before the second two drugs are
As Justice Gorsuch wrote two years ago, “the Eighth Amendment does not guarantee a prisoner a painless death–something that, of course, isn‘t guaranteed to many people, including most victims of capital crimes.” Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019). Also worthy of note is the fact that the Supreme Court “has yet to hold that a State‘s method of execution qualifies as cruel and unusual,” id., and that the defеrence that is due a state‘s choice of execution procedures means that courts, in method-of-execution challenges, do not sit as “boards of inquiry charged with determining ‘best practices’ for executions.” Bucklew, 1125, quoting from Baze v. Rees, 553 U.S. 35 (2008). The case at bar has already been to the Supreme Court and back, all on the issue of the constitutionality of a midazolam lethal injection protocol, but that was at the preliminary injunction stage. The matter is now before the court for final adjudication, by way of summary judgment or trial, based on a new protocol.
1. The substantive standards applicable to Count II
The Eighth Amendment standards applicable in this case were articulated by the Supreme Court in Baze, in this case (Glossip, 576 U.S. 863), and in Bucklew. Those decisions will be discussed here only to the extent necessary (i) to explain why summary judgment on the Eighth Amendment claim will be granted as to some plaintiffs but denied as to others, and (ii) to define the issues remaining for trial.
First Prong. In Bucklew, the court, summarizing its decisions in Baze and Glossip, held that the prisoner who challenges the state‘s method of execution must show that the state‘s method presents “a substantial risk of severe pain.” Bucklew, at 1125. A method of execution that presents a “substantial risk” is one that “is sure or very likely to cause serious illness and needless suffering.” Glossip, 877 (quoting from Baze, emphasis in original).
Second Prong. It is clear from Bucklew (again summarizing Baze and Glossip) that the alternative method of execution the prisoner is obliged to propose must be “feasible and readily implemented,” and it must be one that “the State has refused to adopt without a legitimate penological reason.” To be considered at all, the prisoner‘s proposal must be “sufficiently detailed to permit a finding that the State could carry it out ‘relatively easily and reasonably quickly.‘” Bucklew, at 1125, 1129. And the “mere fact that a method of execution might result in some unintended side effects does not amount to an Eighth Amendment violation.” Glossip, 882, n. 3. Although states, of necessity, are free to use previously untried methods, it is quite unlikely that an untried method will pass muster as the prisoner‘s proposed alternative: “[C]hoosing not to be the first to experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 1130.
The proposed alternative need not be one “presently authorized by” state law. Bucklew, 1128. Thus, the prisoner “may point to a well-established protocol in another State as a potentially viable option.” Id. But it is not enough to argue for “a slightly or marginally safer alternative.” Glossip, 877 (quoting from Baze). The “difference [in risk] must be clear and considerable.” Bucklew, 1130. That said, in a passage that has a natural tendency to accentuate the importance of the first prong (degree of risk and severity of pain), the Court, in Bucklew, observed that “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution.” Id. at 1128-29. (As is
As has been seen, the court‘s reckoning of whether the state‘s proposed method presents a constitutionally unacceptable risk of severe pain is, in largе part, the product of a comparison of the risk and pain inherent in the state‘s method with the risk and pain inherent in the defendant‘s proffered alternative method of execution. When the state moves for judgment as a matter of law, any of the proffered alternatives (Glossip second prong) that cannot be eliminated as a matter of law become players in the competition against the state‘s chosen method. The court then determines (bearing in mind this is under
2. Summary judgment denied – first prong
Some basic facts–such as what Oklahoma‘s new execution protocol actually says–are not in dispute. And, as is made plain elsewhere in this order, the facts that compel summary judgment on all of plaintiffs’ remaining claims other than Count II are not in dispute. But, as to Count II, plaintiffs’ direct Eighth Amendment challenge to the new protocol, fact issues preclude summary judgment in favor of the defendants as to those plaintiffs who have, as they must, designated at least one alternative means of carrying out their own sentence of death. The factual disputes arise mostly, if not entirely, from conflicts in the expert testimony and the inferences to be drawn from that testimony. That aspect of the matter–the battle of the experts–is addressed below. It suffices to say at this point that defendants’ motion is
A survey of defendants’ basic contentions and of plaintiffs’ responses thereto will show why the court declines to enter summary judgment on Count II. Defendants’ arguments for summary judgment on Count II are advanced on pp. 23-32 of defendants’ summary judgment brief, doc. no. 388. Those arguments and plaintiffs’ responses will be summarized here.7
Defendants first argue, correctly, that the Supreme Court has already spoken positively–in this case, no less–of the use of midazolam in a lethal injection protocol and that, post-Glossip, other states have used a 500 milligram midazolam protocol without incident. As will be seen, this argument provides the backdrop for defendants’ more specific contentions as to the efficacy of midazolam when used as they propose to use it. The Supreme Court‘s observation about the successful use of midazolam for execution purposes should not (and will not) be taken lightly, but that comment was made at the preliminary injunction stage of this case. The Court of Appeals has made it clear (as is plain from the text of
Next, defendants advance more specific arguments as to the effect of midazolam. These arguments go to the actual effect of midazolam on the prisoner‘s ability to feel pain during the lethal injection process. On this point, the court notes, preliminarily, that defendants use some loose terminology, leaving the court uncertain as to what, exactly, they contend midazolam will actually accomplish when used as specified in the protocol. Defendants first argue that a 500 milligram dose of midazolam will induce “general anesthesia.” Doc. no. 388, at 24. Defendants next address the matter in terms of “deep sedation.” Id. at 26. Still later, they talk about “midazolam‘s ability to produce unconsciousness.” Id. at 27. But when discussing the effect of injection of the second drug (vecuronium bromide), they revert to the “deeply sedated” frame of reference for midazolam. Id. at 30.
In response, plaintiffs take a slightly different tack. They argue, with backing from one of their experts, that the duration of midazolam‘s effect is the problem, because it is not enough for midazolam simply to induce anesthesia, the point being that (per plaintiffs’ theory of the case) the prisoner is subjected to the possibility of a sequence of painful episodes as the execution unfolds (first, the sense of suffocation resulting from immediate onset of pulmonary edema, next the sense of chemical suffocation rеsulting from the injection of vecuronium bromide, and finally the burning sensation resulting from the injection of the potassium chloride). Thus, plaintiffs say, simply inducing anesthesia will not suffice. Anesthesia must be
carefully consider whether, under all the circumstances in this nonjury case, Daubert motions are really necessary.)
Defendants next argue that the existence of midazolam‘s purported “ceiling effect” (broadly speaking, a tendency of the drug‘s potency to level off even as the dosage increases) has not been supported by scientific data supporting a contention that the ceiling effect kicks in before the midazolam can serve its purpose.9 The significance of this contention is that if the ceiling effect does keep midazolam from reliably performing as intended during the lethal injection process, that raises a serious question as to whether the protocol can pass constitutional muster (or, at a minimum, significаntly complicates the matter). The ceiling effect has been litigated in a dozen or more courtrooms around the country, but it has not been litigated with finality in this case. On that score, the plaintiffs have proffered the expert report of a board-certified anesthesiologist attesting to the ceiling effect (with support from several published sources in the field). To be sure, the up or down question of the existence of the ceiling effect is the beginning, not the end, of the analysis, but the
Defendants also engage directly with plaintiffs on a range of issues relating to plaintiffs’ contention that midazolam induces pulmonary edema and does so in a way that causes the prisoner to experience what plaintiffs characterize as an intolerable sensation of asphyxiation, equivalent to a botched hanging. Defendants’ overarching argument is that “[p]laintiffs have failed to prove that any ‘flash pulmonary edema’ after injection of midazolam will cause unconstitutional levels of pain.” Doc. no. 388, at 27. Elaborating on this point, defendants argue that “[p]laintiffs cannot on the record evidence prove a sure or very likely risk of severe pain [resulting from pulmonary edema].” Id. at 28. The problem is that, at this stage, plaintiffs do not have to “prove” anything. Although courts sometimes, on summary judgment, speak in terms of what the non-movant has proven or failed to “prove” or “show” or “establish,” the lower bar at this stage is the question of whether plaintiffs have demonstrated the existence of a genuine issue of material fact. E.g., Goodwin v. General Motors Corporation, 275 F.3d 1005, 1011 at n.7 (10th Cir. 2002), cert. denied, 537 U.S. 941 (2002). As for pulmonary edema, the parties are at odds, backed by experts, on a range of issues, such as (i) its prevalence as a consequence of administration of midazolam, (ii) how soon it sets in after the midazolam is pushed, (iii) how long it lasts, (iv) whether it is likely to occur while the prisoner remains conscious, (v) what the prisoner feels if pulmonary edema actually does occur in any given instance, and (vi) whether pulmonary edema, if experienced by a
Moving to the second and third drugs specified in the protocol, defendants argue that plaintiffs have “failed to prove” that injection of vecuronium bromide or potassium chloride “will cause unconstitutional pain.” Doc. no. 388, at 30, 31. This issue is distinct from the question of whether the midazolam injection causes the immediate onset of pulmonary edema, with a resultant sense of suffocation, before the second two drugs are pushed. On the question of the effect of the administration of the second two drugs, and despite defendants’ inapt framing of the issue (plaintiffs have “failed to prove“), it is tempting to rule for defendants as a matter of law under
In the protocol that passed muster in Baze, the consciousness check required after the administration of the first drug (in that case, sodium thiopental) and before administration of the second two drugs (pancuronium bromide and potassium chloride) was performed “by the warden and deputy warden through visual inspection.” Baze, 553 U.S. at 45. In Baze, as here, it was uncontested that administration of the second two drugs would present “a substantial, constitutionally
In Baze, the Court concluded that the Kentucky protocol (including, as relevant here, the consciousness check accomplished via visual inspection by the warden and deputy warden) mitigated that risk to the extent required by the Eighth Amendment. It is tempting to conclude that Oklahoma‘s protocol does the same. But in the case at bar, the prisoners squarely attack the warden‘s unfettered discretion to deviate from the protocol, as well as–among other things–the adequacy of the consciousness check specified in the protocol. The consciousness check is unmistakably a central consideration in the Supreme Court‘s lethal injection jurisprudence. Thus, even acknowledging the necessity of discretion to deviate from the protocol in ways that would not materially increase the risk that has been the focus of no less than three Supreme Court decisions in the last thirteen years, it is passing strange that Oklahoma would write a protocol (knowing it would be looked at under a microscope) which, read literally, gives the director discretion to water down the consciousness check or wink at its results.11 On that score, the Supreme
388, at 1 (citing protocol p. 6). Since the consciousness check is to be performed by the IV Team Leader, Protocol, p. 43, “using all necessary and medically-appropriate methods,” id., that very reassuring specification of professional credentials would likely be a noteworthy upgrade from the consciousness check performed “by the warden and deputy warden through visual inspection,” which cleared the bar in in Baze, 553 U.S. at 45. The problem, again (as plaintiffs point out, doc. no. 425, at 1), is that, under the protocol, the director retains unfettered discretion to eliminate the requirement of professional medical credentials. Protocol, at 1. Although the evidence at trial may (or may not) firm up the court‘s confidence level as to the integrity with which the reserved power to modify the protocol will work in practice, the reservation of unfettered power in the director or his designee to modify the protocol, especially as to those provisions so strongly touted by defendants, erodes the confidence the court ordinarily needs in order to adjudicate an issue favorably to the movant as a matter of law.
3. Summary judgment granted in part and denied in part – second prong
As to defendants’ attack on plaintiffs’ case under Glossip‘s second prong, three issues rise to the surface:
- Are defendants entitled to judgment as a matter of law because of plaintiffs’ purported reservation of the right to challenge the use of their proffered alternative methods of execution?
- Should defendants’ motion be granted as to those plaintiffs who have declined to propose an alternative method? If so, should a
Rule 54 (b) final judgment be entered as to those plaintiffs? - As to the remaining plaintiffs, have defendants demonstrated as a matter of law that none of the proffered alternatives are eligible to be in the running for comparison with Oklahoma‘s midazolam protocol?
a. Plaintiffs’ purported reservation of the right to challenge the use of their proffered alternative methods of execution is of no legal effect but will not result in summary judgment against them.
In the Third Amended Complaint (p. 47, ¶¶ 113, 114) and other documents, plaintiffs have explicitly purported to reserve the right to challenge their proffered alternative methods of execution. Defendants object to this, arguing in their motion that, because of this reservation, Count II must fail as a matter of law. Doc. no. 388, at 35. In response, plaintiffs contend that “whether the alternative might be considered constitutional when assessed against a proffered alternative to that alternative . . . is a question for another day and not at issue here.” Doc. no. 425, at 42 (emphasis added).
the plaintiffs in the case at bar have declined to proffer an alternative method of execution, there may well be a track record under Chart D of the new Oklahoma protocol by the time this case is called for trial as to the other twenty-six plaintiffs.)
Plaintiffs’ reservation of the right to challenge their proposed alternatives puts the court to a choice of either ignoring the reservation or entering judgment against plaintiffs as a matter of law. The court chooses to ignore the purported reservation. At least pending trial, the court will give plaintiffs the benefit of the literal imрort of
b. The motion will be granted as to those plaintiffs who have declined to propose an alternative method of carrying out their sentence of death.
The following table shows the array of responses (and some nonresponses) to Interrogatory No. 15, which required (as enforced by the court) each plaintiff to identify which of the pled alternative methods of execution he proposes for use in his case:
Plaintiffs’ Proposed Alternative Methods of Execution14
| Plaintiff | FDA-approved pentobarbital or sodium thiopental | Compounded pentobarbital or sodium thiopental | Midazolam plus pre-dose of anesthetic | Firing squad | Declined |
|---|---|---|---|---|---|
| Andrew | X | ||||
| Bush | X | ||||
| Cannon | X | ||||
| Coddington | X | ||||
| Cole | X | X | X | X | |
| Cuesta-Rodriguez | X | X | X | X | |
| Eizember | X | X | X | X | |
| Fairchild | X | X | X | X | |
| Glossip | X | X | |||
| Goode | X | X | X | X | |
| Grant, D. | X | ||||
| Grant, J.* | X | ||||
| Grissom | X | X | X | ||
| Hancock | X | X | X | X |
| Hanson** | X | ||||
| Harmon | X | X | |||
| Johnson | X | X | |||
| Jones | X | ||||
| Lay*** | X | ||||
| Littlejohn | X | X | |||
| Malone | X | X | X | X | |
| Martinez | X | X | |||
| Mitchell | X | X | X | X | |
| Pavatt | X | X | |||
| Postelle | X | ||||
| Rojem | X | X | X | X | |
| Ryder | X | X | X | X | |
| Sanchez | X | X | X | X | |
| Simpson | X | X | X | X | |
| Smith | X | X | |||
| Underwood | X | X | |||
| Wood | X |
* Plaintiff John M. Grant was unwilling to respond to Interrogatory No. 15. See doc. no. 441.
** Plaintiff George Hanson signed two versions of a response to Interrogatory No. 15 (both dated the same date). One version opted for execution with FDA-approved pentobarbital or sodium thiopental; the other version expressly declined to identify an alternative. The court considers it appropriate–viewing the record in the light most favorable to the nonmovant–to give plaintiff Hanson the benefit of the response that does not result in summary judgment against him.
*** Plaintiff Wade Lay expressly declined to proffer an alternative. Doc. no. 447-1.
As shown in the table, six of the plaintiffs—Coddington, D. Grant, J. Grant, Jones, Lay and Postelle—have declined to proffer an alternative for carrying out their sentence of deаth.15 As is set forth above in Part D(3)(a), that refusal is fatal to these plaintiffs’ Eighth Amendment claims which, as will be seen, are the only claims which would, in any event, remain for trial. Accordingly, defendants are entitled to summary judgment as to these six plaintiffs. That raises the question of whether final judgment should be entered against these plaintiffs under
“Certification under
The language of the rule, the collective import of the Tenth Circuit decisions, and the guidance to be gleaned from Professor Wright and his colleagues16 suggest, at least as relevant to the present procedural posture of this case, that the court‘s
- Are multiple parties involved, including one or more parties whose claims have been fully adjudicated?
Yes. We have thirty-two plaintiffs and multiple defendants. The claims of these six plaintiffs will be fully and finally adjudicated by this order, in combination
- Is there any just reason for delaying finality as to these six plaintiffs?
No. The court expressly so determines. There are two main considerations in play here.
First, there is clear cleavage between the basis upon which this case now ends (in this court) as to these six plaintiffs and the basis upon which this case will go to judgment as to the other twenty-six plaintiffs. Regardless of what the final outcome may be as to the plaintiffs who have proffered at least one alternative method of execution, none of those plaintiffs will arrive at the Court of Appeals in anything resembling the same posture as these six рlaintiffs. Thus, on appeal from the
Second, as the Supreme Court has repeatedly and emphatically recognized, after decades of appeals and collateral review as to these six plaintiffs, both the State and the victims of crime have an important interest in the timely enforcement of a sentence. Bucklew, 1133 (quoting from Hill v. McDonough, 547 U.S. 573, 584 (2006)). The people of [Oklahoma], the surviving victims of [these plaintiffs‘] crimes, and others like them deserve better. Id. at 1134.
Rule 54(b) certification as to six plaintiffs.
Having made the necessary determinations, the court concludes and certifies that final judgment should be entered under
c. As to the remaining plaintiffs, the defendants have not established, as a matter of law, that the proffered alternative methods of execution should be excluded as comparators with execution per Chart D of the protocol.18
To prevail as a matter of law as to all plaintiffs on the Glossip second prong, it is necessary for defendants to exclude all four of the plaintiffs’ proffered alternative methods of execution as viable comparators to execution per Chart D. (As shown in the table in Part (b), above, some of the plaintiffs have selected fewer than all four of the alternatives pled in the Third Amended Complaint. That is of no moment for present purposes because, as will be seen, the court has concluded that fact issues preclude elimination of any of the four proffered alternatives.)
The Supreme Court has made it clear that if a prisoner makes an adequate showing on the first Glossip prong, the bar is fairly low (from the prisoner‘s perspective) on the second prong. As noted above, the Court, in Bucklew, observed
1. Fact issues preclude rejection, on summary judgment, of plaintiffs’ first and second alternatives.
Plaintiffs’ first alternative method of execution proposes use of a single dose of FDA-approved pentobarbital or sodium thiopental (barbiturates),19 augmented by a pre-dose of a large clinical dose of an anesthetic drug such as fentanyl. The second alternative differs from the first only in that the pentobarbital or sodium thiopental would be compounded rather than FDA-approved. In support of these alternatives, plaintiffs point out that Charts A and B of the protocol already provide road maps for use of pentobarbital and sodium thiopental in Oklahoma executions. The difference, essentially, would be the addition of fentanyl.
In urging the court to reject these first two alternatives as a matter of law, defendants argue that (i) the defendants are unable to procure the barbiturates, (ii) the fentanyl-barbiturate proposal lacks sufficient detail, and (iii) in any event, it is untried and untested in any state. Of these three arguments for rejection of the fentanyl-barbiturate proposal as a matter of law, the one that comes closest to being supported by undisputed facts is the third–that this is an untried and untested combination. But the problem is that this proposal basically adopts the Oklahoma protocol (Charts A and B) for using the barbiturates (a method that was successfully used by Oklahoma when those barbiturates were available for execution), adding only the pre-dose of fentanyl. It is difficult to conceive, at least with the clarity
2. Fact issues preclude rejection, on summary judgment, of plaintiffs’ third alternative (pre-dose of fentanyl, 40 milligrams of midazolam; remove the paralytic).
Plaintiffs’ third alternative method of execution proposes starting with fentanyl, followed by 40 milligrams of midazolam, then the potassium chloride (to induce cardiac arrest), without the paralytic (vecuronium bromide). Defendants argue that this proposal should be rejected as a matter of law because (i) it is not sufficiently specific, and (ii) it is an untried method.
As for specificity, defendants point out that plaintiffs’ proposal calls for injection of 40 milligrams of midazolam, but their expert‘s report does not address that dosage. In fact, the only dosage of midazolam addressed in the relevant report is 500 milligrams (which is unsurprising, since that is what Chart D requires), and the section of the report that directly addresses this third alternative (doc. no. 388-4, ¶¶ 108-110) makes no reference to any particular dosage of midazolam. At least for
The defendants’ argument that the opiate-plus-midazolam alternative is an untried method is a bit more complicated than either side admits. Such a combination has been used. Plaintiffs point out two such instances. See, doc. no. 388-5, at ¶¶ 174-177. But there were problems with those executions. Id. The record is thoroughly ambiguous as to why there were problems with those executions. Viewing the record in the light most favorable to the plaintiffs, as is required at this stage, it appears that an opiate plus midazolam combination might work, and, at a minimum, that it is not untried and untested, at least if the court were, for this purpose, to equate fentаnyl with hydromorphone as the anesthetic pre-dose proposed in plaintiffs’ third alternative.
Summary judgment is a very near miss as to this third alternative. The support it gets in plaintiffs’ briefing (less than one page in a sixty-eight-page brief) and from their experts is noticeably feeble. This proposal smacks of being half-baked at best. But the court declines to reject it at this juncture.
3. Fact issues preclude rejection, on summary judgment, of plaintiffs’ fourth alternative (firing squad).
Plaintiffs’ fourth, and last, proposed alternative is execution by firing squad, which is the fourth in order of preference among the statutorily mandated methods of execution in Oklahoma,
In sum, to the extent that defendants’ motion is denied as to Count II, it is not denied on narrow legal grounds but rather because fact issues preclude adjudication under
E. The Motion Will Be Granted as to Count IV
Plaintiffs assert, under the
The Execution Prоtocol does not provide Plaintiffs with access to counsel during an execution. Therefore, under the Execution Protocol, Plaintiffs will not be able to communicate with their counsel prior to and during the execution and will not be able to communicate with counsel regarding any problems, including constitutional violations.
In addition, the Execution Protocol does not permit witnesses (including Plaintiffs’ attorneys or medical consultants) to view the setting of IVs and/or the syringes being pushed, so there is no way to identify, object to, challenge, or correct, any issues with the IV-setting or drug administration process, including constitutional violations.
Third Amended Complaint, doc. no. 325, ¶¶ 139, 140.
Plaintiffs elaborate on this claim in their opposition brief. The object of this claim is to enable plaintiffs’ counsel to communicate with the Plaintiffs, during the process of preparing for and implementing the execution, starting with the setting of IVs, and continuing through the pushing of the syringes to administer the drugs and observing the prisoner‘s reactions, through the time the prisoner is declared dead. Doc. no. 425, at 57. This is so that counsel may proctor the process, looking for potential or extant problems and issues that will result in an inhumane execution. Id. at 55. As can be seen, this claim focuses on counsel‘s access to, and ability to communicate with, the inmate.
Several provisions of the protocol are relevant to this claim:
- Except for calls from the inmate‘s attorney of record, the inmate‘s telephone privileges are terminated at 9:00 p.m. on the day before the execution. Protocol, p. 20.
- The inmate may meet with two attorneys of rеcord on the day of the execution, the meeting to conclude two hours prior to the scheduled execution or earlier if necessary to begin preparing the inmate for the execution. Id., p. 21.
- After the inmate is moved to the execution room and placed on the execution
table, the IV Team inserts the primary and back up IV catheters. Id., p. 25. (By statute, the identities of the IV Team members, and all others who participate in or administer the execution process, must be kept confidential. 22 Okla. Stat. 2011 supp. § 1015 (B) .) - The execution may be witnessed by five persons selected by the inmate. Id., p. 11.
- After IV access has been established by the IV team, and the Attorney General and the Governor (or their designees) have confirmed the absence of legal impediments to execution, the agency director shall order the H Unit Section chief to proceed with the execution. Id., p. 27. The inmate is given the opportunity to make his last statement. After that, the microphone is turned off. Id.
- The protocol includes detailed provisions with respect to checking the effectiveness of IV access (Id. pp. 26, 43), electrocardiographic monitoring of the inmate (41), confirming the administration of the correct chemicals (43, 44), monitoring the inmate‘s level of consciousness (41), physically confirm[ing] the inmate is unconscious (43, 44), halting the execution in the event of problems with the IVs or with administration of the chemicals (42), and confirming death (43).
The last item listed above–the safeguards written into the protocol–deserves brief mention here. The safeguards in the protocol are, in some respects, more demanding than those in the protocol which was before the court at the preliminary injunction stage. The Supreme Court, in reviewing this court‘s denial of a preliminary injunction (and the Tenth Circuit‘s decision affirming that denial), observed that this court did not commit clear error in concluding that these safeguards help to minimize any risk that might occur in the event that midazolam does not operate at intended. Glossip, 886. That comment by the Court is significant not so much for its faint praise (no clear error) as for the fact that the Court acknowledged the practical reality that, once the multi-step lethal injection process is under way, the implementation of safeguards, per a carefully-developed protocol, is at least as important as anything a lawyer, standing there with a cell
In ruling from the bench at the preliminary injunction stage of this case, the court addressed plaintiffs’ access to counsel claim as follows:
This conjures up an untenable scene in which the prisoner‘s counsel is standing at the gurney, cell phone in hand, ready to dictate the information necessary to fill in the blanks on an emergency ex parte motion for stay if he or she takes issue with any part of the process as it unfolds.
The reality is that as execution by lethal injection is actually carried out, the prisoner‘s erstwhile right of access to the courts must, of necessity, give way to the execution team‘s discharge of its duties as long as those who are carrying out the process are operating within the confines of a constitutionally sound lethal injection protоcol. And I hasten to add that it would appear from plaintiffs’ contention as to the very closeness of the scrutiny that they say is constitutionally required that protection of the identities of the execution team members would likely be impossible.
. . .
No court has found a constitutional right for the prisoner to have counsel present to supervise the IV insertion process and I decline to be the first judge to so hold.
Transcript of Ruling, December 22, 2014, at 77-78 (doc. no. 179, entered Dec. 23, 2014).
The court‘s view of the matter has not changed. Practical and legal problems, entwined, are fatal to Count IV.
Because any constitutional claim which might be asserted during an execution would, by definition, be a last-minute (or later) plea for emergency relief to halt an execution in progress, it is appropriate to note at the outset that the Supreme Court has unmistakably set the tone for late-stage capital litigation. Specifically, [t]he federal courts can and should protect States from dilatory or speculative suits. Hill v. McDonough, 547 U.S. 573, 585 (2006) (lethal injection challenge). Lest anyone miss the point, the Court returned to this theme in Bucklew: Courts should police carefully against attempts to use such [method of execution] challenges as tools to interpose unjustified delay. Bucklew, 1134.
Against this backdrop, the court‘s analysis of plaintiffs’ access-to-counsel claim begins with a Tenth Circuit decision, Est. of Clayton Lockett v. Fallin, 841 F.3d 1098 (10th Cir. 2016), cert. denied, 137 S.Ct. 2298 (2017). Ordinarily, an on-point Tenth Circuit decision would be the beginning and end of the story for this court, but Lockett turned on issues of qualified immunity, so the circuit court‘s legal analysis consisted of a search for clearly established law, a task which differs somewhat from looking for what the law actually is, whether clearly established or not.
As described by the district court (Heaton, J.), the Lockett estate‘s claim was that:
Mr. Lockett had a right to communicate with his counsel as he lay on the gurney in the execution chamber, so that he could potentially commence litigation about whatever aspect of the execution process arguably violated his rights. Plaintiff cites no authority which gets remotely close to supporting that remarkable assertion, and the court has considerable doubt whether any constitutional violation of that sort even arguably exists.
Est. of Clayton Lockett v. Fallin, 2015 WL 3874883, at *9 (W.D. Okla. June 23, 2015).
The Tenth Circuit panel, which included then-Judge Neil Gorsuch, agreed with the district court:
Lockett‘s Estate attempts to assert a constitutional right to counsel throughout an execution. It asks this court to recognize a constitutional right to counsel when an execution procedure is producing unexpected and painful results. [record citation omitted] Lockett‘s Estate points to no law that would support a right to counsel throughout an execution, and we struggle to envision what such a right would look like in practice. Thus, Appellees have violated no clearly established law.
The Supreme Court has not addressed the issue of a constitutional right to counsel (or the courts) while an execution is in progress. The asserted right at issue here is not the abstract right to have an attorney-client relationship as an execution unfolds. Plaintiffs have made it plain that the right asserted here is a right to communicate with counsel at all stages of the execution process, beginning with the setting of the IVs, continuing through the pushing of the chemicals, and ending at the time the prisoner is declared dead. Doc. no. 425, at 57. Addressing access to counsel in this context, the Courts of Appeals for the Fifth and Eleventh Circuits have reached conclusions consistent with that of the Tenth Circuit in Lockett. One district court has gone the other way to a limited extent, in a decision, Coe v. Bell, 89 F.Supp. 2d 962 (M.D. Tenn. 2000), vacated as moot, 230 F.3d 1357 (6th Cir. 2000), with which this court disagrees.
In Arthur v. Dunn, 2017 WL 1362861 (M.D. Ala. April 12, 2017), the issue took the form of a dispute as to the constitutionality оf Alabama‘s prohibition on possession of a cell phone by counsel during the execution. As will be seen, the district court focused mainly on the practicalities of the prisoner‘s claim; the circuit court closely examined the legal aspects.
The district court in Arthur v. Dunn posited a hypothetical telephonic colloquy, id. at *6, occurring during an execution:
Counsel: His eye just opened.
Judge: What exactly does that mean?
Counsel: I don‘t know.
Judge: What are you asking me to do?
Counsel: Stop the execution.
Judge: What drugs have they given?
Counsel: I don‘t know.
Judge: What volume of unknown drugs have they given?
Counsel: I don‘t know.
Judge: At what rate over time were the unknown drugs in unknown amounts given?
Counsel: I don‘t know.
Judge: What would be the effect on your client if I ordered the execution stopped?
Counsel: I don‘t know.
Judge: Can you tell me with any degree of medical certainty that stopping the execution at this point would not harm your client, cause him pain and suffering, or leave him permanently comatose?
Counsel: No, honestly I can‘t.
The same colloquy would ensue if the inmate tried to sit up and speak, groaned and thrashed, called for help, or had any other physical reaction that might occur during an execution.
After extensive discussion of the reasons for which it agreed with the Tenth Circuit in Lockett and disagreed with the Tennessee district court in Coe, the district
For the Eleventh Circuit, the predominant issue in Arthur was that of standing. There was no аctual injury sufficient to state a claim under Bounds [v. Smith, 430 U.S. 817 (1977)] and Lewis because, absent an underlying violation of a fundamental right, no injury in fact–and thus no standing–has been shown. Arthur at 909. In other words, the right of access to counsel (and, a fortiorari, to the courts), applies only to extant claims. But in the case at bar, plaintiffs assert a right, under the
Finally, the court will note that, even in Coe, the district court went no further than to hold that the prisoner had a right of access to counsel up to an hour before the execution and that counsel could have access to a telephone while witnessing the execution, Coe, 89 F.Supp.2d at 966, all of which, it should be noted, caused that court to observe that it was skeptical about a prisoner‘s realistic ability to assert and get redress for a violation of his right to be free from cruel and unusual punishment during the execution itself. Id.
The court concludes that defendants are entitled to judgment as a matter of law on Count IV.
F. The Motion Will Be Granted as to Count V
Under
Defendants argue that plaintiffs’ claims of denial of access to counsel and the courts fail under
G. The Motion Will Be Granted as to Count VI
Count VI alleges violations of the Ex Post Facto Clause of the United States Constitution (Article I, Section 10, clause 1) and Article V, section 54 of the Oklahoma Constitution. These arguments are different but related.22
A change in the execution method does not increase a condemned inmate‘s punishment and thus does not implicate the Ex Post Facto Clause. See, e.g., Malloy v. South Carolina, 237 U.S. 180, 185 (1915) (law which changed method of execution from hanging to electrocution did not change the penalty—death—for murder, but only the mode of producing this and did not оtherwise increase the punishment); Zink v. Lombardi, 783 F.3d 1089, 1108 (8th Cir. 2015) (prisoners failed to state an ex post facto claim because the punishment—death—has remained the same, and only the mode of producing death has changed); Poland v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1997) ([t]he change in method does not make the
Moving on to the state constitutional provision in question—Article V, section 54 of the Oklahoma Constitution—that section provides as follows: The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute. (Emphasis added.) Plaintiffs allege that, other than Mica Martinez, they were sentenced to death under an eаrlier version of the first sentence
Count VI alleges the protocol (which is consistent with the amended version of the first sentence of
The court concludes that defendants are entitled to judgment as a matter of law on Count VI.
H. The Motion Will Be Granted as to Count VII
Count VII alleges a
At the motion to dismiss stage, the court held that Count I, construed as a claim brought under the Due Process Clause of the
Count VII, like Count I (as construed), rests on the
I. The Motion Will Be Granted as to Count IX
Count IX is a human experimentation claim. It is brought under the
To the extent Count IX is brought under the
For the same reasons that Count 7 of the original cоmplaint failed when it was before the court at an earlier stage, Count IX, to the extent it is based on the
J. The Motion Will Be Granted as to Count X
Count X relates to plaintiffs’ right of access to governmental information under the
Other courts have found that neither the
We agree with the judgment of the district court. Neither the
Fifth ,Fourteenth , orFirst Amendments afford Wellons the broad right to know where, how, and by whom the lethal injection drugs will be manufactured, as well as the qualifications of the person or persons who will manufacture the drugs, and who will place the catheters. See Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ([S]tatements [in Bounds] appear to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court....These elaborations upon the right of accessto the courts have no antecedent in our pre Bounds cases, and we now disclaim them.) (citing Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)); Sepulvado v. Jindal, 729 F.3d 413, 420 (5th Cir. 2013) (There is no violation of the Due Process Clause from the uncertainty that Louisiana has imposed on Sepulvado by withholding the details of its execution protocol.); Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (holding that the prisoners, who argued that the Arkansas Method of Execution Act violated the due process clause because its secrecy denied them an opportunity to litigate their claim that the execution protocol violated the Eighth Amendment , failed to state a plausible due process access-to-the-courts claim). Wellons has not established a substantial likelihood of success on the merits of his claim that the dearth of information regarding the nature of the pentobarbital that will be used in his execution and the expertise of those who will carry it out violates theFirst Amendment or his right to due process.
Wellons, 754 F.3d at 1267 (emphasis added).
The Eighth Circuit Court of Appeals has concluded that the
Neither the
K. Conclusion as to Motion for Summary Judgment26
For the reasons stated in this order, defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART, as follows.
Count II. The gist of Count II, which is alleged under the
Counts IV, V, VI, VII, IX and X. Summary judgment is GRANTED in favor of defendants and against plaintiffs on Counts IV, V, VI, VII, IX and X.
Plaintiffs Against Whom Summary Judgment is Entered. Summary judgment on Counts II, IV, V, VI, VII, IX and X is GRANTED in favor of defendants and against plaintiffs Coddington, D. Grant, J. Grant, Jones, Lay and Postelle. As Counts I, III and VIII were dismissed with prejudice at an earlier stage, no claims alleged by these six plaintiffs remain for trial. The court has certified that final judgment should be entered under
Counts Remaining to be Determined at Trial. These rulings, along with the court‘s rulings at the motion to dismiss stage, mean that the only claims which remain for trial are those alleged in Count II by the twenty-six plaintiffs other than Coddington, D. Grant, J. Grant, Jones, Lay and Postelle.
L. Scheduling, Trial Setting and Related Matters
By separate order, which will provide guidance as to the course of proceedings through the trial of this case, this matter will be set for a scheduling conference.
IT IS SO ORDERED this 11th day of August, 2021.
STEPHEN P. FRIOT
UNITED STATES DISTRICT JUDGE
14-0665p104.docx