Thomas Arthur v. Commissioner, AL DOC , 840 F.3d 1268 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15549
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cv-00438-WKW-TFM
THOMAS D. ARTHUR,
Plaintiff-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
WARDEN,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(November 2, 2016)
Before HULL, MARCUS and WILSON, Circuit Judges.
HULL, Circuit Judge:
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It has been 34 years since Thomas Arthur brutally murdered Troy Wicker.
During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to
death for Wicker’s murder. After his third death sentence in 1992, Arthur for the
next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction
appeals in both state and federal courts.
In addition, starting nine years ago in 2007 and on three separate occasions,
Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug
protocol to be used in his execution. This is Arthur’s third such § 1983 case, and
this current § 1983 case was filed in 2011. For the last five years Arthur has
pursued this § 1983 case with the benefit of lengthy discovery. The district court
held a two-day trial and entered two comprehensive orders denying Arthur § 1983
relief. Those orders are the focus of the instant appeal.
After thorough review, we conclude substantial evidence supported the
district court’s fact findings and, thus, Arthur has shown no clear error in them.
Further, Arthur has shown no error in the district court’s conclusions of law, inter
alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital
is a feasible, readily implemented, and available drug to the Alabama Department
of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness
assessment protocol does not violate the Eighth Amendment or the Equal
Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.
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I. CONVICTION AND APPEALS
The Alabama Supreme Court summarized the facts underlying Arthur’s
criminal conviction as follows:
More than 20 years ago, Arthur’s relationship with his common-law
wife ultimately led to his brutally murdering a relative of the woman.
Arthur shot the victim in the right eye with a pistol, causing nearly
instant death. He was convicted in a 1977 trial and was sentenced to
life imprisonment.
While on work release during the life sentence, Arthur had an affair
with a woman that ultimately led to his brutally murdering that
woman’s husband, Troy Wicker, in 1982. Arthur shot Wicker in the
right eye with a pistol, causing nearly instant death.
Ex parte Arthur, 711 So. 2d 1097, 1098 (Ala. 1997).
In 1982, Arthur was convicted and sentenced to death for Wicker’s murder,
but the Alabama Supreme Court reversed that conviction in 1985. Arthur v. King,
500 F.3d 1335, 1337 (11th Cir. 2007). In 1987, Arthur was again convicted and
sentenced to death, but that conviction was overturned by Alabama’s Court of
Criminal Appeals in 1990. Id. After his third trial in 1991, Arthur was again
convicted of Wicker’s murder and sentenced to death in 1992. Id. This time, his
conviction and sentence were affirmed. Id. He did not file a petition for writ of
certiorari with the United States Supreme Court. Id. at 1337-38.
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At his third sentencing proceeding, Arthur asked for a death sentence, stating
that a capital sentence would provide him better prison accommodations, more
access to the law library, more time to devote to his appeal, and a more extensive
appeals process. Arthur v. Thomas, 739 F.3d 611, 614 (11th Cir. 2014). Arthur
told the jury that he did not believe he would be executed. Id. Arthur’s murder of
Wicker was a capital offense under Alabama law because Arthur had been
convicted of another murder in the 20 years preceding his second murder. See Ala.
Code § 13A-5-40(a)(13) (1975); Arthur v. State, 71 So. 3d 733, 735 (Ala. Crim.
App. 2010).
In 2001, after exhausting his state court remedies, Arthur filed a federal
habeas corpus petition pursuant to 28 U.S.C. § 2254. Arthur v. Allen, 452 F.3d
1234, 1238, 1240-43 (11th Cir.), modified on reh’g, 459 F.3d 1310 (11th Cir.
2006). The district court dismissed the § 2254 petition as untimely, but granted a
certificate of appealability as to Arthur’s claims of actual innocence, statutory
tolling, and equitable tolling. Id. at 1243. In 2006, this Court affirmed the
dismissal of Arthur’s § 2254 petition, concluding that Arthur had not shown actual
innocence or entitlement to statutory or equitable tolling. Id. at 1253-54.1 The
1
In May 2012, Arthur filed a motion pursuant to Rule 60(b)(6) of the Federal Rules of Civil
Procedure, seeking relief from the district court’s order dismissing his § 2254 petition as
untimely. Arthur, 739 F.3d at 626-27. The district court denied Arthur’s motion, and this Court
affirmed. Id. at 627, 633.
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Supreme Court denied Arthur’s petition for writ of certiorari. Arthur v. Allen, 549
U.S. 1338, 127 S. Ct. 2033 (Mem.) (2007).
With this background, we turn to Arthur’s current § 1983 case, challenging
Alabama’s use of midazolam in its lethal injection protocol. To place Arthur’s
current § 1983 claim in context, we review the history of lethal injection in
Alabama and how Alabama has had to change the drugs used due to unavailability.
For years, Arthur challenged the use of sodium thiopental and then pentobarbital.
But now that the ADOC has not been able to procure sodium thiopental or
pentobarbital and has had to switch to midazolam, Arthur is currently challenging
midazolam and now asks to go back to sodium thiopental or pentobarbital as his
preferred alternatives. We thus review in great detail how this case got here today.
II. HISTORY OF LETHAL INJECTION IN ALABAMA
When Arthur was sentenced to death, Alabama executed inmates by
electrocution. See McNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008). On
July 1, 2002, the Alabama legislature adopted lethal injection as the state’s
preferred form of execution. Id. The legislature allowed inmates already under a
sentence of death a 30-day window to choose electrocution as their method of
execution, after which time they would be deemed to have waived the right to
request a method other than lethal injection. Ala. Code § 15-18-82.1(b).
Alabama’s method-of-execution statute further provides that:
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If electrocution or lethal injection is held to be unconstitutional by the
Alabama Supreme Court under the Constitution of Alabama of 1901,
or held to be unconstitutional by the United States Supreme Court
under the United States Constitution, or if the United States Supreme
Court declines to review any judgment holding a method of execution
to be unconstitutional under the United States Constitution made by
the Alabama Supreme Court or the United States Court of Appeals
that has jurisdiction over Alabama, all persons sentenced to death for
a capital crime shall be executed by any constitutional method of
execution.
Id. § 15-18-82.1(c). The Alabama statute does not prescribe any particular
method of lethal injection; the legislature left it to the ADOC to devise the policies
and procedures governing lethal injection executions, and exempted the ADOC
from the Alabama Administrative Procedure Act in exercising that authority. Id.
§ 15-18-82.1(g).
The ADOC has used a three-drug lethal injection protocol since it began
performing executions by lethal injection in 2002. See Brooks v. Warden, 810
F.3d 812, 823 (11th Cir.), cert. denied sub nom. Brooks v. Dunn, 136 S. Ct. 979
(2016). Each drug in a three-drug protocol is intended to serve a specific purpose.
The first drug should render the inmate unconscious to “ensure[] that the prisoner
does not experience any pain associated with the paralysis and cardiac arrest
caused by the second and third drugs”; the second drug is a paralytic agent that
“inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops
respiration”; and the third drug “interferes with the electrical signals that stimulate
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the contractions of the heart, inducing cardiac arrest.” Baze v. Rees, 553 U.S. 35,
44, 128 S. Ct. 1520, 1527 (2008) (plurality opinion).
The third drug in the ADOC protocol has always been potassium chloride,
and the second drug has always been a paralytic agent—either pancuronium
bromide or rocuronium bromide. Brooks, 810 F.3d at 823. However, the ADOC
has changed the first drug in its protocol twice. Id. From 2002 until April 2011, it
used sodium thiopental as the first drug in the three-drug sequence. Id. But a
national shortage of sodium thiopental forced states, including Alabama, to seek a
replacement for sodium thiopental as the first drug in the series. See Glossip v.
Gross, 576 U.S. __, __, 135 S. Ct. 2726, 2733 (2015) (explaining that the sole
domestic manufacturer of sodium thiopental ceased production of the drug in 2009
and exited the market entirely in 2011).
From April 2011 until September 10, 2014, Alabama used pentobarbital as
the first drug. Brooks, 810 F.3d at 823. As the Supreme Court has noted,
“[b]efore long, however, pentobarbital also became unavailable.” Glossip, 135 S.
Ct. at 2733. Arthur has acknowledged that Alabama’s supply of commercially
manufactured pentobarbital expired on or around November 2013. From
September 11, 2014, until the present, Alabama has used midazolam as the first
drug in the series. Brooks, 810 F.3d at 823.
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Currently, Alabama’s lethal injection protocol calls for the administration of:
(1) a 500-mg dose of midazolam, (2) followed by a 600-mg dose of rocuronium
bromide, and (3) finally, 240 milliequivalents of potassium chloride. This lethal
injection protocol involves the same drugs, administered in the same sequence, as
the protocol at issue in Glossip. 135 S. Ct. at 2734-35.
III. 2011: COMPLAINT ABOUT PENTOBARBITAL
Arthur’s execution date is currently set for November 3, 2016. This is the
sixth time that Alabama has scheduled his execution,2 and this case is Arthur’s
third § 1983 challenge to lethal injection as the method of his execution.3
In May 2007, shortly after the State filed a motion to set an execution date,
Arthur filed a § 1983 action challenging Alabama’s lethal injection protocol which
in 2007 included sodium thiopental as the first drug. (CM/ECF for the U.S. Dist.
Ct. for the S.D. Ala., case no. 1:07-cv-342, doc. 1 at 1-2, 6; doc. 15 at 11). The
district court dismissed that complaint based on laches, and this Court affirmed.
(Id., docs. 19, 20, 27, 28). In October 2007, Arthur filed a second challenge to
2
Alabama previously scheduled Arthur’s execution for (1) April 27, 2001; (2) September 27,
2007, which was reprieved by the governor until December 6, 2007; (3) July 31, 2008; (4) March
29, 2012; and (5) February 19, 2015.
3
Arthur has, in fact, filed five § 1983 cases in total. In addition to his three method-of-execution
challenges, he has also brought claims under § 1983 seeking (1) access to physical evidence for
DNA testing in a bid to uncover exonerating evidence; and (2) an injunction barring a post-
mortem autopsy of his body. (CM/ECF for the U.S. Dist. Ct. for the S.D. Ala., case no. 1:08-cv-
441, docs. 1, 11, 12); (CM/ECF for the U.S. Dist. Ct. for the M.D. Ala., case no. 2:07-cv-319,
docs. 1, 14,15).
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Alabama’s lethal injection protocol, which the district court again dismissed for
unreasonable delay, and this Court affirmed. (CM/ECF for the S.D. Ala., case no.
1:07-cv-722, docs. 1, 22, 23, 28, 29).
In April 2011, Alabama switched from using sodium thiopental to
pentobarbital as the first drug in its lethal injection protocol. Brooks, 810 F.3d at
823. On June 8, 2011, Arthur filed another § 1983 complaint in federal district
court, challenging Alabama’s new lethal injection protocol, especially its use of
pentobarbital as the first drug.
As amended, Arthur’s complaint raised three § 1983 claims: (1) the ADOC’s
use of pentobarbital as the first drug in its three-drug lethal injection protocol
violated the Eighth Amendment’s prohibition on cruel and unusual punishment;
(2) the ADOC’s secrecy in adopting and revising its lethal injection protocol
violated the Fourteenth Amendment’s Due Process Clause; and (3) the ADOC had
materially deviated from its lethal injection protocol by failing to conduct a
“consciousness assessment” during an earlier execution, thereby violating the
Fourteenth Amendment’s Equal Protection Clause. Arthur also alleged that
Alabama’s lethal injection statute violated the state constitution.
The district court dismissed Arthur’s Eighth Amendment and Due Process
claims on statute-of-limitations grounds and his Equal Protection claim for failing
to state a claim upon which relief could be granted. Arthur v. Thomas, 674 F.3d
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1257, 1259 (11th Cir. 2012). Because Alabama began its lethal injection protocol
in 2002, the district court determined that Arthur’s 2011 complaint challenging it
was banned by the two-year statute of limitations applicable to § 1983 claims. Id.
Arthur appealed. Id.
This Court reversed the district court’s dismissal as to only Arthur’s Eighth
Amendment and Equal Protection claims. Id. at 1262, 1263. As to the Eighth
Amendment claim, this Court concluded that Arthur’s allegations and his filed
affidavits created factual issues as to whether Alabama’s new lethal injection drugs
and procedures constituted such a significant change in the lethal injection protocol
as to warrant a new limitations period and some factual development, including
discovery. Id. at 1260-62.
As to the Equal Protection claim, this Court held that Arthur had “alleged
enough facts to constitute a plausible Equal Protection claim because he alleges
that Alabama has substantially deviated from its execution protocol” by failing to
perform the pinch test as part of the required consciousness assessment. Id. at
1263. Accepting Arthur’s particular allegations as true at the early Rule 12(b)(6)
stage, this Court remanded for further factual development. Id.
In the years after this Court’s 2012 remand, the parties conducted extensive
discovery. Before the final hearing on Arthur’s § 1983 challenge to pentobarbital,
the State was no longer able to procure pentobarbital. In September 2014, the
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State changed its lethal injection protocol to substitute midazolam hydrochloride
for pentobarbital as the first drug, and rocuronium bromide for pancuronium
bromide as the second drug in its three-drug cocktail.
IV. 2015: SECOND AMENDED COMPLAINT ABOUT MIDAZOLAM
On January 7, 2015, after receiving leave from the district court to amend his
2011 complaint, Arthur filed a complaint (the “Second Amended Complaint”),
raising two claims. Arthur raised an Eighth Amendment claim, alleging that the
ADOC’s use of midazolam as the first drug “creates a substantial risk of serious
harm because . . . there is a high likelihood that midazolam will fail to render [him]
insensate from the excruciatingly painful and agonizing effects of the second and
third drugs.”
Despite challenging pentobarbital for more than three years, Arthur now
suggested that he would prefer for the State to use a one-drug protocol of
compounded pentobarbital in his execution instead of midazolam. Arthur’s
Second Amended Complaint recycled his earlier argument about pentobarbital,
which was that it would cause him to suffer a drop in blood pressure and then a
heart attack. Arthur now made the same claim about midazolam, alleging that he
had “clinically significant obstructive coronary disease” and that the State’s use of
midazolam created a substantial risk that he would suffer a painful heart attack
before losing consciousness.
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Arthur’s Second Amended Complaint also raised an Equal Protection claim,
alleging that the ADOC had “materially deviated from their written execution
protocol, impermissibly burdening Mr. Arthur’s right to be free from cruel and
unusual punishment.” Arthur claimed that Alabama employs a lethal injection
protocol that requires a “consciousness assessment” after the first drug is injected.
This consciousness assessment has three parts: (1) calling the inmate’s name,
(2) gently stroking his eyelash, and (3) pinching his arm.
Arthur’s Second Amended Complaint alleged that during “numerous
executions,” including the 2011 execution of Eddie Powell, witnesses did not
observe the pinch test being performed. Arthur also alleged that the ADOC failed
to adequately train its personnel in how to perform properly the consciousness
assessment. He claimed that there existed a “significant risk that Defendants will
deviate from their protocol in [his] execution,” thus burdening his rights under the
Fourteenth Amendment.
In March 2015, the district court elected to stay Arthur’s § 1983 case
challenging midazolam until after the U.S. Supreme Court issued its decision in
Glossip v. Gross.4
4
The Alabama Supreme Court had set Arthur’s execution date for February 19, 2015. On
February 13, 2015, six days before his then-scheduled execution, Arthur sought a stay of
execution. On February 17, the district court granted a stay “pending a trial and final decision on
the merits.” Defendants appealed, but this Court dismissed the appeal, finding that there was no
abuse of discretion. With the issuance of the district court’s July 19, 2016 final judgment in
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V. JUNE 2015: GLOSSIP IS DECIDED
On June 29, 2015, the Supreme Court decided Glossip, holding that, in order
to challenge successfully a method of execution, a plaintiff must plead and prove:
(1) that the proposed execution method presents a risk that is “‘sure or very likely
to cause serious illness and needless suffering,’ and give rise to ‘sufficiently
imminent dangers,’” and (2) that there is “an alternative [method of execution] that
is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial
risk of severe pain.’” 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 50, 52, 128 S.
Ct. at 1530-31, 1532) (alteration in original).
After Glossip, the district court subsequently lifted its stay of proceedings in
this case, and the parties conducted some additional discovery.
On August 25, 2015, Arthur sought leave to file a third amended complaint,
seeking (1) to switch back to compounded pentobarbital as an alternative method
of execution, (2) to suggest sodium thiopental and a firing squad as additional
alternative methods, and (3) to include additional allegations that midazolam was
constitutionally inadequate. The district court granted Arthur leave to amend his
complaint except as to the firing squad as an alternative method of execution. The
district court concluded, inter alia, that “execution by firing squad is not permitted
favor of the State, that district court stay is no longer in effect. Accordingly, Alabama has now
set an execution date for November 3, 2016.
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by [Alabama] statute and, therefore, is not a method of execution that could be
considered either feasible or readily implemented by Alabama at this time.” The
district court set trial to begin on January 12, 2016.
VI. OCT. 2015: THIRD AMENDED COMPLAINT
On October 13, 2015, Arthur filed his Third Amended Complaint, alleging
substantially identical claims to those raised in his Second Amended Complaint
and requesting single-drug protocols of compounded pentobarbital or sodium
thiopental as alleged feasible alternative methods of execution. The ADOC filed
(1) a “Motion to Dismiss and, In the Alternative, Motion for Summary Judgment,”
arguing that Arthur’s Eighth Amendment claim was untimely, that both claims
should be dismissed for failure to state a claim, and that there was no genuine issue
of material fact regarding whether compounded pentobarbital or sodium thiopental
are known and available alternatives; and (2) a “Motion for Summary Judgment of
Arthur’s Eighth Amendment Claim,” arguing again that compounded pentobarbital
and sodium thiopental are not known and available alternatives and, further, that
Arthur failed to present any evidence showing how compounded pentobarbital
could be administered to prevent a painful heart attack.5 The ADOC’s motions
included arguments regarding its present inability to obtain either pentobarbital or
sodium thiopental.
5
The district court carried these motions into the trial and resolved them as moot in light of its
April 15, 2016 order.
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On January 7, 2016, the district court issued an order limiting the issues at
trial to: (1) Arthur’s Equal Protection claim, and (2) the availability of alternative
methods of execution. The district court wrote that, if Arthur met his burden to
prove an alternative method of execution that is feasible and readily available, the
court would schedule a second phase of trial to address other issues, such as
whether the use of midazolam “presents a risk that is sure or very likely to cause
serious illness and needless suffering, and give rise to sufficiently imminent
dangers.”
The district court held a two-day bench trial on January 12 and 13, 2016.
VII. TRIAL EVIDENCE ABOUT ALTERNATIVE DRUGS
A. Arthur’s Evidence
As noted above, although for four years Arthur had challenged pentobarbital
as the first drug, one of his requested alternatives is now a single drug of
compounded pentobarbital. Arthur called Dr. Gaylen M. Zentner to testify about
compounded pentobarbital.6
Dr. Zentner obtained a Ph.D. in pharmaceutics and was a licensed
pharmacist in Utah for 40 years. After obtaining his Ph.D., Dr. Zentner taught
pharmacy at the University of Connecticut, including teaching in the compounding
6
Dr. Zentner’s November 16, 2015, declaration and his December 3, 2015, deposition—which
reflect opinions and testimony essentially identical to the testimony he offered at the January
2016 trial—were admitted into evidence and considered by the district court.
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lab. He worked for 13 years for a large pharmaceutical company in their
“advanced drug delivery dosage form design unit.” He was later in charge of “all
formulation and dosage form design” at another large pharmaceutical company.
He had held two adjunct professorships in pharmacy. Since 2012, Dr. Zentner had
worked as an “independent consultant” to the pharmaceutical industry. He
testified that he had hands-on experience with manufacturing drugs and he had
personally compounded drugs, although he had no experience preparing
compounded pentobarbital sodium. The district court accepted Dr. Zentner as an
expert witness in the fields of pharmaceutical chemistry, manufacturing, and
compounding.
Dr. Zentner testified that, in his opinion, “the talent, expertise, and facilities
to perform sterile compounding” existed within Alabama and that “all ingredients
required to formulate a compounded preparation of pentobarbital sodium” were
“readily available.”
Dr. Zentner explained that, in its pure form, pentobarbital sodium was a
white powder, which could be compounded with other ingredients to form an
injectable solution. He described pentobarbital as a “long-known and well-
established drug product” that was “available to the medical sciences for decades.”
He stated that Nembutal, the trade name for an industrially manufactured version
of injectable pentobarbital sodium, was available for sale in the United States. He
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said that pentobarbital sodium for injection was listed in the FDA’s Orange Book,
which listed all “approved drugs” in the United States. The Orange Book stated
that there were no active patents on this drug, meaning that anyone was permitted
to make it.
Dr. Zentner described the process of compounding a solution of
pentobarbital sodium, calling it “a very simple matter” and a “straightforward
process.” During his testimony, Dr. Zentner relied on a 2015 article from the
Journal of Pharmacological and Toxicological Methods that described the
preparation of an injectable pentobarbital sodium solution by laboratory scientists
that was essentially identical to the commercial product and was stable for one
year.
Dr. Zentner contended that there were “numerous sources” for both the
active and inactive ingredients needed to compound pentobarbital, including
professional drug sourcing services. He said that these ingredients were available
for sale in the United States and could be found through an Internet search. For
example, Dr. Zentner found pentobarbital sodium listed on a drug manufacturer’s
product listing, which listing indicated that the drug was produced in the United
States. He stated that other manufacturers might offer it for sale or the drug could
be synthesized in a lab. He said that he knew of one lab that would be willing to
synthesize the drug and he suspected “all of them would be willing.”
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Dr. Zentner stated that he conducted an Internet search of sterile
compounding pharmacies in Alabama from the listing available on the
Accreditation Commission for Health Care’s Web site, and found 19 such
pharmacies, although two were essentially the same company. Dr. Zentner gave
his list to the ADOC. Dr. Zentner contacted two of these pharmacies, and they
said that they did perform sterile compounding. Dr. Zentner admitted that he did
not ask them whether they would be willing to compound pentobarbital for use in
an execution by the ADOC. In his deposition, Dr. Zentner clarified that he did not
ask these two pharmacies any questions whatsoever regarding compounded
pentobarbital.
Accordingly, Dr. Zentner could only give his opinion that (1) pentobarbital
sodium is available for purchase in the United States, and (2) there are
compounding pharmacies that “have the skills and licenses to perform sterile
compounding of pentobarbital sodium.”
On cross-examination, Dr. Zentner admitted that he had not contacted any
drug companies at all about their willingness to sell pentobarbital to the ADOC for
executions. He also admitted that he was unaware that the company that currently
owned Nembutal had restrictions in place to keep that drug from being purchased
for use in lethal injections. Dr. Zentner admitted that he had no knowledge of
whether the pharmacies that he found would be able to procure pentobarbital, nor
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did he ever personally attempt to purchase the drug from a manufacturer. He
stated that one drug synthesis company that he has a “long-term relationship” with
was “willing to discuss” producing compounded pentobarbital. Dr. Zentner
admitted that sodium thiopental is not listed in the FDA Orange Book, meaning it
is not an approved product in the United States, although he stated that it is
“available offshore and conceivably could be imported.”
B. ADOC’s Evidence
Anne Adams Hill, 7 ADOC’s general counsel, testified on behalf of the
agency. Hill explained that, as part of her job, she was “routinely” in contact with
other states’ departments of corrections and that the subject of pentobarbital and
lethal injection came up in her conversations. Her job required her to constantly
look for ways to procure new drugs and new sources for drugs.
Hill was aware that, in 2015, Georgia, Missouri, Texas, and Virginia
executed inmates using a single-drug protocol of compounded pentobarbital. Hill
testified that she contacted representatives from the departments of corrections in
these four states in the fall of 2015 in an effort to obtain compounded
pentobarbital. With respect to these four states she recalled asking “specifically if
they had compounded pentobarbital and, if they did, if they would be willing to
7
Arthur’s counsel deposed Hill three times in this case. Hill also executed an affidavit, offering
substantially the same testimony she provided at trial.
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provide it to the [ADOC] and, if not, if they would provide us their source.” All
four refused.
Hill stated that she was not aware of whether these four states had exclusive
contracts with their drug sources, but that all four had refused to name those
sources.
Hill reiterated her deposition testimony that, in between September 2014 and
November 2015, she had contacted 11 potential sources of pentobarbital, including
those 4 states and 7 pharmacies within Alabama. She asked these pharmacies
whether they would be willing to compound pentobarbital and provide it to the
ADOC, and they all said no.
Hill also testified that, in December 2015, she reached out to all of the 18
pharmacies on Dr. Zentner’s list 8 regarding their willingness and/or capability to
compound pentobarbital for the ADOC’s use. None of the pharmacies agreed to
provide the drug to ADOC, with two saying they were incapable of obtaining the
ingredients, another claiming that it no longer did compounding, yet another saying
it only produced one drug, and the remainder stating that “they’re not able to
compound pentobarbital.” In total, Hill testified that she reached out to “at least
29” potential sources in an attempt to procure compounded pentobarbital for the
ADOC.
8
Although Dr. Zentner’s list included 19 pharmacies, two of the pharmacies were simply two
locations of the same entity.
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Hill admitted that she did not contact drug manufacturers, buying groups, or
drug synthesis labs in an effort to find pentobarbital, nor did she conduct any
Internet searches to obtain the drug.
Hill also testified that she had made no effort since September 2014 to
obtain sodium thiopental and made no efforts to determine whether it could be
imported. Hill said that she did not think sodium thiopental was available in the
United States, and she was not aware of any other state that had access to sodium
thiopental.
VIII. TRIAL EVIDENCE ABOUT CONSCIOUSNESS ASSESSMENT
Since October 2007, the ADOC’s written execution protocol has included a
three-step consciousness assessment, to be performed after the administration of
the first drug, but before administration of the second and third drugs. The purpose
of this assessment is to ensure that the inmate has been rendered unconscious by
the first drug. The assessment has three parts: (1) calling the inmate’s name;
(2) fluttering the inmate’s eyelash; and (3) pinching the inmate’s arm.
A. Arthur’s Evidence on the Consciousness Assessment
Arthur presented four witnesses who attended prior executions at Holman
Correctional Facility, where Arthur is housed. These witnesses included three
attorneys who worked for the Federal Defenders Office for the Middle District of
Alabama and the videotaped deposition of Don Blocker, a volunteer lay minister at
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Holman. To varying degrees, they all testified that they did not see prison staff
perform the pinch test at these executions.9 All four witnessed the executions from
the viewing room reserved for the inmate’s family, and they had a clear view of the
inmate’s left side.
Two of the attorneys, however, admitted that their view of the inmate was
obstructed when a correctional officer stepped up to the gurney to perform the
consciousness assessment. All three attorneys admitted that, at the time of the
executions they saw, they were unaware that there was even a consciousness
assessment that was supposed to be performed. Similarly, Blocker acknowledged
three times on cross-examination that it was “possible” that he did not see parts of
the consciousness assessment that were performed.
At trial, Arthur also presented Dr. Alan David Kaye, who holds a medical
degree and a Ph.D. in pharmacology. 10 He completed a residency in anesthesia
and was currently employed as the chairman of the anesthesia department at
Louisiana State University (“LSU”). He is the director of anesthesia services at
LSU’s “flagship” hospital, has authored articles and books, and maintains an active
9
Two of the attorneys testified about the execution of Eddie Powell in 2011, and the other
attorney testified about the execution of Michael Jeffrey Land in 2010. Blocker testified to the
executions of seven other inmates from 2009 until 2011.
10
Dr. Kaye’s November 16, 2015, declaration and his December 10, 2015, deposition—which
reflect opinions and testimony essentially identical to the testimony he offered at trial—were
admitted into evidence and considered by the district court.
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anesthesiology practice. The court accepted Dr. Kaye as an expert witness in the
field of anesthesiology.
Dr. Kaye explained that “sedation” is understood by people in his field as a
continuum. This can range from “mild sedation in which a person can easily
respond to verbal cues,” to moderate sedation, deep sedation, and, finally,
anesthesia, “the deepest level of the continuum.” In his opinion, Alabama’s
consciousness assessment “is inadequate to measure deep sedation or anesthesia.”
While Dr. Kaye has not witnessed any executions in Alabama, he opined that the
ADOC had not “adequately administered” the assessment that was in place. Dr.
Kaye gave four reasons for his opinion.
First, from reviewing the testimony of certain ADOC personnel, Dr. Kaye
opined that “it appears that the consciousness assessment may not have been
performed at all in a number of prior executions.” Second, statements given by
certain ADOC personnel gave the impression to Dr. Kaye that their training was
inadequate because they did not know how to properly perform the pinch test
and/or communicate the results of the assessment. Third, again based on the prior
testimony of certain ADOC officials, it was Dr. Kaye’s opinion that members of
Alabama’s execution team do not pinch inmates with sufficient force. Fourth, it
appeared to Dr. Kaye that members of the execution team did not adequately
communicate the results of the consciousness assessment.
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Dr. Kaye testified that, in anesthesiology medical practice, you have to
perform “the hardest pinch that you can pinch,” hard enough to bruise. Dr. Kaye
explained, “As firm and as hard as you can. Not in a mild way; not in a moderate
way. In a very significant way.” Dr. Kaye testified that the ADOC personnel’s
testimony—that (1) “We don’t inflict pain on people”; (2) “I pinch hard enough
that [a conscious person] would jerk their arm away from me”; and (3) “[I pinch]
hard enough to wake [the inmate] if he’s asleep”—are all inadequate to meet the
proper threshold and speaks to the lack of training and inadequacy of the
safeguard.
B. ADOC’s Evidence on the Consciousness Assessment
The ADOC presented the testimony, either live or through deposition
designations, of six current or former ADOC personnel, all of whom testified that
all parts of the consciousness assessment were performed at every execution that
they witnessed and/or participated in.
At trial, Hill, the ADOC’s general counsel, testified that she had attended
nine or ten executions since the implementation of the consciousness assessment
and observed all parts of the assessment being performed in all of those executions.
Hill stated that, in her role as the ADOC general counsel, she had never received
any information that the assessment was not performed.
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Hill testified that she viewed the executions from the commissioner’s
viewing room, which is positioned directly in front of each inmate’s feet as he lies
on the gurney, and that her view was not obstructed. Hill was present at Powell’s
execution, and she testified that all parts of the assessment were performed at
Powell’s execution. She said that the correct and complete performance of the
consciousness assessment is something she looks for in the executions that she
attends.
Hill stated that correctional officers are aware that the consciousness
assessment is a mandatory part of the execution protocol, and they are trained on
how to perform it. They are instructed to perform the pinch test on the back of the
inmate’s left arm and to “pinch hard.” Hill stated that correctional officers practice
performing the consciousness assessment before an execution. They are also
trained to look for “any reaction” from the inmate and to report any reaction.
The ADOC also presented the deposition testimony of: (1) G.C., Holman’s
warden from 2002 until 2009; (2) A.P., the Holman warden who succeeded G.C.;
(3) D.C., the former captain of Holman’s execution team; (4) W.H., the execution-
team captain who succeeded D.C.; and (5) C.S., the chaplain at Holman. The
wardens and captains testified that they were trained on the consciousness
protocol, knew it was mandatory, and understood its purpose and importance.
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The wardens both testified that they were present at executions and all parts
of the assessment, including the pinch test, were performed at every execution that
they witnessed. Similarly, the captains of the execution team testified that they
personally performed every aspect of the assessment, including the pinch test, at
every execution. The Holman chaplain testified that he has witnessed
approximately 40 executions at the prison since 1997. He witnessed the execution
of Eddie Powell, and remembered seeing the consciousness assessment performed.
G.C. testified that he was the warden when the consciousness assessment
was implemented and that ADOC representatives explained the assessment to him
and told him when it should be performed. He testified that a team consisting of
himself, D.C., Hill, and former ADOC Commissioner Kim Thomas all agreed that
inmates should be pinched on the back of the arm because it was “inconspicuous”
but “fairly sensitive.” G.C. testified that he sat in the control room with another
officer during executions and, on the warden’s command, that officer would
“radio[] to the correctional personnel that’s in the execution chamber that it’s time
to perform the consciousness test.” If there was any reaction from the inmate, the
procedure was for the officer in the execution chamber to radio back to the officer
in the control room, but if the officer performing the consciousness assessment
stepped away from the inmate, “that was [his] cue to proceed” with administration
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of the second and third drugs. G.C. testified that, during his tenure as warden, no
inmate ever reacted to administration of the first drug.
A.P. succeeded G.C. as warden and also testified that, once the officer
performing the consciousness assessment stepped away from the inmate, he knew
he could proceed with the execution.
D.C. was the captain of the execution team at Holman until his retirement in
2009 and was the captain when the consciousness assessment was introduced. It
was his practice to do all three steps of the assessment simultaneously. He testified
that, if the inmate showed any reaction to the consciousness assessment, he would
turn and face the warden. In performing the pinch test, D.C. would pinch hard
enough that, “if it was a conscious person, they would jerk their arm away from
me.” He never received any reaction in the nine or ten executions in which he
participated.
W.H. succeeded D.C. as the execution-team captain at Holman in 2009. As
captain, W.H. would pinch the inmate’s arm “hard enough to wake him if he’s
asleep.” W.H. testified that he received oral, written, and physical training
regarding the consciousness assessment from A.P., D.C., and another officer.
W.H. testified that A.P. instructed him to stay at his place by the gurney if the
inmate reacted. W.H. stated that no inmate ever reacted after he performed the
consciousness assessment.
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IX. DISTRICT COURT’S APRIL 15, 2016 ORDER
After setting out the factual background and procedural history of the case,
the district court proceeded, first, to consideration of Arthur’s Eighth Amendment
claim. The district court summarized the trial testimonies of Dr. Zentner and
ADOC attorney Hill on the issue of alternatives to midazolam–namely,
pentobarbital and sodium thiopental. The district court then made these findings of
fact, among others:
(1) The ADOC’s supply of commercially manufactured pentobarbital, Nembutal,
expired around November 2013, and the commercial supplier of Nembutal is
prohibited from providing it for use in executions. Thus, Nembutal is no longer
available to the ADOC.
(2) When a drug is no longer commercially available, but remains listed in the
FDA Orange Book, a licensed pharmacist may legally create the drug through
compounding or some other process.
(3) Pentobarbital sodium is the active ingredient in compounded pentobarbital, and
there is a formulation for compounding an injectable solution of pentobarbital
sodium.
(4) Georgia, Missouri, Texas, and Virginia have all performed executions using
compounded pentobarbital after Nembutal became unavailable.
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(5) The ADOC has attempted to obtain compounded pentobarbital for use in
executions from the departments of correction in all four of these states, but those
efforts were unsuccessful.
(6) The ADOC has contacted all of the accredited compounding pharmacies in
Alabama to ascertain whether any of these pharmacies would be willing and able
to provide compounded pentobarbital to the ADOC, but those efforts have been
unsuccessful.
(7) Thus, pentobarbital is not feasible and readily implemented as an execution
drug in Alabama, nor is it readily available to the ADOC, either compounded or
commercially.
(8) Per the FDA Orange Book, sodium thiopental is no longer legally available in
the United States, and there is no evidence that the FDA has approved the import
of sodium thiopental from other countries.
(9) Thus, sodium thiopental is unavailable to the ADOC for use in lethal
injections.
The district court then made these conclusions of law:
(1) Arthur has the burden to plead and prove a known and available alternative
method of execution under Glossip. It is Arthur’s burden to identify an alternative
method that is both feasible and readily implemented.
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(2) To meet his burden, Arthur proposed execution with a one-drug protocol of
either compounded pentobarbital or sodium thiopental.
(3) Dr. Zentner’s testimony that the active ingredient for pentobarbital is
“available for purchase” and that there are compounding pharmacies that could
“hypothetically” perform compounding did not meet Arthur’s burden “to prove
that compounded pentobarbital is readily available to the ADOC for use in lethal
injections. That it should, could, or may be falls far short of Arthur’s burden.”
(4) Further, Arthur’s proof that (i) other states have procured compounded
pentobarbital for use in their executions, (ii) “with effort it can be compounded,”
and (iii) “indications on the internet” are that pentobarbital is available for sale all
fail to meet Arthur’s burden to show that the drug was readily available to the
ADOC. “At best, it proves a ‘maybe.’”
(5) The fact that compounded pentobarbital was available to other states “at some
point over the past two years does not, without more, establish that it is available to
Alabama.”
(6) Although the ADOC did not have the burden of proof on this issue, Hill’s
testimony lent “further support for the finding that compounded pentobarbital is
not presently available to the ADOC.”
(7) Arthur also failed to carry his burden of showing that sodium thiopental was an
available alternative because sodium thiopental is not legally available in the
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United States and evidence of its possible availability overseas does not satisfy
Glossip.
(8) Therefore, “Arthur sufficiently pleaded an Eighth Amendment claim, but he
failed to meet his burden of proof. Defendants are entitled to judgment in their
favor on Arthur’s Eighth Amendment claim.” 11
The district court then proceeded to evaluate Arthur’s Equal Protection
claim, which is based on the consciousness assessment. After summarizing the
evidence on this claim, the district court made these findings of fact, among others:
(1) In October 2007, the ADOC adopted a consciousness assessment in order to
provide an “additional safeguard to lethal injection executions to ensure that an
inmate is unconscious” before the second and third drugs are administered.
(2) While there was conflicting testimony as to whether the ADOC performed the
pinch test at all executions after October 2007, the district court credited the
testimony of ADOC’s witnesses over that of Arthur’s witnesses. The district court
gave two reasons for these findings. First, Hill and the other ADOC witnesses are
all present or former ADOC employees who were knowledgeable about the
consciousness assessment and were trained “to understand how, why, and when it
is performed.” Second, it found Arthur’s witnesses, while “truthful from their
11
The district court rejected Arthur’s contention that the State had the burden to prove his
requested alternative of compounded pentobarbital was unavailable. But the district court also
found that the State in fact had proven its inability to obtain compounded pentobarbital.
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perspective,” to be “less direct and less probative” because (i) testimony that they
“didn’t see” something is less probative than testimony that it “didn’t happen”; and
(ii) Arthur’s witnesses had obstructed views of the execution and/or did not know
to look for the various steps of the consciousness assessment.
(3) Based on the evidence and these findings, the district court found that “the
evidence establishes that the pinch test was performed in all executions that the
ADOC has conducted after the ADOC adopted the consciousness assessment and
incorporated it as a mandatory part of the written execution protocol.” The district
court found that any contradictory evidence did not “overcome” the direct
testimony from current and former ADOC wardens and other personnel who said
“without equivocation that they performed the assessment.”
(4) Further, because the consciousness assessment had been performed in every
instance, the district court found that there was no deficiency in training, practice,
or procedure.
The district court then made these conclusions of law, among others:
(1) The evidence that Arthur presented was “insufficient to prove that that [sic] the
ADOC had inconsistently applied the protocol’s mandatory consciousness
assessment by failing to perform the pinch test during some executions, or has
otherwise deviated substantially from its execution protocol.”
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(2) Further, Arthur’s Equal Protection challenge “to the general adequacy of the
ADOC’s consciousness assessment, claiming that it should meet certain training
and medical standards but does not, also fails.” In support, the district court relied
on language from Baze and Glossip to hold that “[t]he Eighth Amendment does not
require that such medical training and standards or procedures be employed,”
noting that the Supreme Court held in Baze that a consciousness assessment “much
simpler than the one implemented by the ADOC” was not required under the
Eighth Amendment. Indeed, the district court wrote, there is no constitutional
requirement that a state perform a consciousness assessment at all.
(3) Accordingly, “Arthur’s attempt to apply a medical standard of care to
execution procedures and training for them, in this case, procedures that are not
required by the Eighth Amendment, does not state a plausible equal protection
claim. This principle is applicable to Arthur’s Equal Protection claim challenging
the ‘adequacy’ of the consciousness assessment and the training therefor, including
the force used in the pinch test.”
(4) For these reasons, the district court held that the ADOC was entitled to
judgment on the Equal Protection claim.
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After entering judgment in the ADOC’s favor, the only issue remaining
concerned the interplay of the current protocol with Arthur’s alleged idiosyncratic
health issues and medical condition, which the district court would address later.12
X. AS-APPLIED CLAIM
On May 6, 2016, as to Arthur’s as-applied claim based on his alleged health
issues, the ADOC filed a motion for judgment on the pleadings or, in the
alternative, for summary judgment. ADOC’s motion argued that, to the extent that
Arthur even adequately alleged an Eighth Amendment as-applied challenge based
on his health concerns, the Defendants were entitled to summary judgment because
(1) Arthur had failed to produce evidence of a genuine disputed fact that the use of
midazolam is “sure or very likely to cause serious illness or needless suffering” by
causing him to experience a painful heart attack; (2) Arthur had still failed to
produce evidence of a genuine disputed fact that there are known and available
alternatives that are feasible, readily implemented, and significantly reduce a
substantial risk of severe pain; and (3) the district court should reject the “sham
affidavits” offered by Arthur in support.
The ADOC attached to its motion a November 16, 2015, declaration by Dr.
J. Russell Strader, Jr., Arthur’s witness, and a transcript of Dr. Strader’s December
12
On May 16, 2016, Arthur appealed the district court’s April 15, 2016, order to this Court. This
Court later granted Arthur’s motion to dismiss this appeal as premature, without prejudice to
Arthur’s refiling a timely notice of appeal upon entry of final judgment in the district court.
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8, 2015, deposition. Notably, Dr. Strader’s November 2015 declaration about
midazolam is his third declaration filed in this case. We first review Dr. Strader’s
two prior declarations about pentobarbital before addressing his declaration about
midazolam.
A. Dr. Strader’s 2013 and 2015 Declarations About Pentobarbital
In his first declaration back in March 2013, Dr. Strader criticized the use of
pentobarbital for Arthur’s execution. Although Arthur wants pentobarbital used
now that Alabama cannot obtain it and must use midazolam, it is relevant to
consider Arthur’s previous position about pentobarbital. Back in 2013, Dr. Strader
opined that (1) Arthur’s “likelihood of having clinically significant obstructive
coronary disease [“CAD”] is at least 70%”; (2) for people with CAD, the use of a
2,500-mg dose of pentobarbital was likely to induce a rapid and dangerous
reduction in blood pressure, thereby triggering a heart attack; (3) the heart attack
would occur more quickly than the appropriate sedation; and (4) “[g]iven the
slower onset of the sedative effects of pentobarbital, it is likely that [Arthur] would
experience the pain of said heart attack until such time as the sedative effects have
onset to a sufficient degree to diminish the pain of the heart attack.” (Emphasis
added). In short, Dr. Strader’s opinion about pentobarbital was that it would take a
longer duration of time to induce appropriate sedation than that required for the
onset of myocardial ischemia/infarction.
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In his March 2013 declaration about pentobarbital, Dr. Strader stated that he
was a board-certified cardiologist and the current Chief of Cardiovascular Services
at a Texas hospital. As part of his routine clinical practice, he assessed the
cardiovascular risk of patients scheduled to undergo surgery and anesthesia and, in
particular, he assessed the likelihood that a patient would suffer a heart attack
during or immediately after a cardiac procedure.
Dr. Strader’s declaration included explanations of the “Hemodynamic and
Anesthetic Actions of Pentobarbital and Thiopental,” along with an overview of
the relevant aspects of cardiovascular anatomy and physiology, coronary
atherosclerosis, and myocardial ischemia/infarction. His declaration included an
explanation that a coronary artery needs to be 70% obstructed before it is
hemodynamically significant. It also stated that, “[i]n clinical practice, myocardial
ischemia and infarction can occur due solely and exclusively to a drop in blood
pressure” and that this drop in blood pressure may be due to anesthesia.
Dr. Strader’s March 2013 declaration admitted that he had not examined
Arthur but had reviewed his medical records only up until 2009. Although Dr.
Strader’s declaration did not indicate precisely what records he reviewed,
approximately 68 pages worth of Arthur’s medical history was included with the
ADOC’s summary judgment motion. These medical records indicate that Arthur
has repeatedly refused to be seen by a doctor since at least 2009. Arthur was seen
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in the prison infirmary on January 17, 2009, where he complained of chest pain
and atrial fibrillation. Arthur, however, refused medical care on this occasion,
including a refusal to submit to an electrocardiogram (“EKG”) on January 20,
2009.
The medical records include dozens of similar waivers, signed by Arthur,
refusing various medical treatments. These waivers extend from 2009 until 2015.
There is no indication that Dr. Strader, as of his first declaration in 2013, had
access to or reviewed any probative post-2009 medical records for Arthur. There
is also no reference, much less a diagnosis, to Arthur’s ever having had a heart
attack in his medical records.
According to Dr. Strader’s review of Arthur’s medical records as of 2009,
Arthur was then 71 years old, with a history of hypertension (high blood pressure)
and atrial fibrillation (irregular heart rhythm). In June 1999, Arthur visited the
prison clinic and he complained of being short of breath, sweaty, and dizzy.
According to the prison report, an EKG was performed at that time, and it was
“abnormal.” Dr. Strader opined that these symptoms are “identical to those
experienced by persons with ongoing myocardial infarction.”
In October 2004, Arthur was hospitalized for abdominal surgery, and he
suffered from atrial fibrillation during that hospitalization. However, an
echocardiogram performed around that time came back “essentially normal.”
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According to Dr. Strader, an EKG dated January 15, 2009 showed “atrial
fibrillation with a rapid ventricular response, along with Q waves in the inferior
leads (leads II and aVF).” Dr. Strader opined that, “[t]he abnormalities on this
[EKG]” indicated that Arthur had suffered a prior heart attack. A request for a
cardiology consult, dated January 26, 2009, indicated that Arthur was experiencing
chest pain and rapid heart rate.
After reviewing these medical documents through January 2009, Dr. Strader
opined that:
Arthur’s abnormal [EKG] showing evidence of a prior myocardial
infarction,13 history of recurrent atrial fibrillation, age, presence of
hypertension, and symptoms of recurrent chest pain, all of which are
independent risk factors for coronary heart disease, confer a risk of
having clinically significant obstructive coronary artery disease of at
least 70% at a minimum, and possibly greater.
Dr. Strader opined that the use of pentobarbital would cause a drop in blood
pressure and a heart attack in Arthur before the onset of the drug’s sedative effect.
Dr. Strader admits the sedative effect from pentobarbital will occur but opines that
Arthur will experience pain from a heart attack “until such time” as the sedative
effect reduces the pain.
After Alabama changed the first drug from pentobarbital to midazolam, Dr.
Strader switched positions and wrote a second declaration. This time, in that
13
Presumably, Dr. Strader is referring to the January 2009 EKG.
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second declaration, Dr. Strader now suggested pentobarbital should actually be
used in Arthur’s execution but only as a one-drug protocol. Dr. Strader opined that
if pentobarbital were used as a one-drug protocol and “administered gradually and
with due consideration for Mr. Arthur’s medical condition,” he did not believe that
Arthur would suffer a heart attack before being properly anesthetized. Dr.
Strader’s second declaration was conclusory and gave no specifics on what
“administered gradually” would mean or what steps would be necessary as “due
consideration for Mr. Arthur’s medical condition.”
B. Dr. Strader’s Nov. 16, 2015 Declaration
In his third declaration, Dr. Strader now criticizes the use of midazolam for
use in executions, using precisely the same reasoning (and often the exact same
wording) used in his earlier declaration condemning pentobarbital. Specifically,
Dr. Strader now opines that (1) Arthur’s likelihood of having obstructive CAD is at
least 70%; (2) for patients with obstructive CAD, a large bolus dose of midazolam
is “highly likely” to rapidly reduce blood pressure in patients with this disease,
thereby triggering a heart attack; (3) the heart attack would occur before the
appropriate sedation from midazolam; and (4) given the length of time between the
onset of heart attack and the onset of sedation, “it is likely that Mr. Arthur would
experience the pain of the heart attack until the sedative effects take effect to a
sufficient degree to diminish the pain of the heart attack, which could occur several
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minutes after the onset of the heart attack.” While the drug at issue was different,
Dr. Strader’s opinion and reasoning remained the same—that Arthur was “likely”
to experience the pain of a heart attack before being fully sedated.
Dr. Strader’s November 2015 declaration is essentially a recycled version of
his original March 2013 declaration, but with the following added information
about midazolam:
x As part of his routine clinical practice, Dr. Strader administers
“midazolam to patients for the purpose of achieving sedation for invasive cardiac
procedures.” Dr. Strader has performed approximately 3,500 invasive cardiac
procedures in cardiac patients using midazolam as a sedative.
x As to Arthur’s likelihood of having CAD, Dr. Strader updated
Arthur’s age to 73 years old, deleted his earlier declaration’s reference to Arthur’s
normal echocardiogram report in October 2004, and added a paragraph regarding
Arthur’s family history of “heart trouble.”
x In Dr. Strader’s clinical experience, “where midazolam in small doses
(2-5 mg) is used to sedate patients undergoing invasive cardiac procedures,
midazolam’s sedative effects generally take 5 minutes or more to take effect” and
the hemodynamic effects of the drug can occur more quickly, within 1-2 minutes.
(Emphasis added). He stated that, when used in clinical doses, midazolam
typically produces a 10-20% drop in blood pressure. Dr. Strader opined that, when
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midazolam is given in the large 500 mg bolus dose contemplated by the ADOC
protocol, it is “highly likely that such drop in blood pressure would occur more
quickly than it would occur in the administration of a clinical dose.”
x Dr. Strader explained that the hemodynamic effects of midazolam
occur more quickly than the sedative effects because the effect on vasculature is
immediate, while the drug must travel to and affect the brain before sedation takes
place. Dr. Strader, however, acknowledged that there is no “institutional
experience” regarding a 500-mg dose of midazolam.
C. Dr. Strader’s Dec. 8, 2015 Deposition
In his 2015 deposition, Dr. Strader elaborated on this opinion:
1. Likelihood of Arthur having CAD
Dr. Strader reviewed Arthur’s medical records but admitted that he had
never personally examined Arthur, had never spoken to Arthur, and had never
spoken to any doctors who had treated Arthur.
Based on the medical records provided to him, Dr. Strader noted that Arthur
had high blood pressure, atrial fibrillation, and abnormalities on his EKGs that
were “highly suggestive of coronary disease.” Dr. Strader testified regarding the
incident in June 1999 (where Arthur visited the prison clinic with complaints of
being short of breath, sweaty, and dizzy and then had an EKG come back with
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“abnormal” results), and he stated that Arthur’s symptoms and his abnormal EKG
made it “possible” that Arthur had a heart attack back in 1999.
Dr. Strader reiterated his opinion from his declaration that the abnormal
EKG, taken on January 15, 2009, was “diagnostic” of Arthur having suffered a
previous heart attack, although Dr. Strader could not say when this prior heart
attack occurred. When asked if he could diagnose a previous heart attack based
just on an EKG, Dr. Strader replied, “Yes. Absolutely.” Dr. Strader also
referenced the January 2009 request for a cardiology consult contained in Arthur’s
medical records, but admitted that he did not know whether Arthur was ever
actually evaluated by a cardiologist.
2. Midazolam Leads to a Drop in Blood Pressure
In Dr. Strader’s opinion, if you administered even a 100-mg dose of
midazolam to a patient, such large doses “are expected to have . . . rapid,
significant hemodynamic effects.” He explained that “hemodynamic effect”
means a drop in blood pressure. To correct this issue, he suggested that doctors
would give “pressors,” very large amounts of IV fluids and medication, to stabilize
the blood pressure.
Dr. Strader testified that, in his clinical practice, drops in blood pressure
from 2-5 mg doses of midazolam can occur “within just a minute or two,
sometimes sooner.” He went on to say that, “extrapolating off of that experience
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to this very large dose, you would expect to see an extremely rapid and very large
drop in blood pressure.”
He explained that, for people with obstructed arteries, this rapid blood-
pressure drop could result in a heart attack, because “you have to maintain a certain
amount of pressure in order to keep fluid going through a tube that’s got a fair
amount of blockage in it. This is . . . applied physics.” He further explained that
older people, starting at around age 70, tended to have bigger drops in blood
pressure in response to the administration of midazolam.
In his deposition, Dr. Strader reviewed the medical articles and other
material that he cited in his November 2015 declaration, which he stated lent
support to the idea that midazolam leads to a drop in blood pressure. Dr. Strader
admitted that (1) none of the articles or materials dealt with such high doses, and
(2) none of the articles or materials explicitly stated that midazolam should not be
used on people with CAD.
3. The Heart Attack Would Occur Before Sedation
Dr. Strader stated that, based on his clinical experience, the sedation effects
of a clinical dose of 2-5 mg of midazolam typically take about five minutes to take
effect. He testified that he would typically use this dosage of midazolam on
patients before “invasive cardiac procedure[s].” (Emphasis added). When a
patient is administered a clinical dose of midazolam (2 to 5 mg), the patient goes
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into a deep sleep. They can be aroused and spoken to, but they are “very
comfortable.” (Emphasis added). He explained that in his clinic, he would titrate
the midazolam, giving it in small doses until appropriate sedation was achieved.
Dr. Strader admitted that he normally gave some sort of pain medication, such as
fentanyl, along with the midazolam, but that this was not required. He could
proceed with the procedure using midazolam alone, although it would require a
higher dose. He stated that the largest dose of midazolam he ever administered to
a patient was a 20-mg dose, used because the patient had no sedative response to
the medication.
While he opined that a 100-mg dose of midazolam would cause sedation
within “three to five minutes,” he could not give an exact time because such a dose
is “far outside of the realm of anybody’s clinical experience” and, indeed, the time
to sedation “could be a very wide range.” When asked about a 250-mg or 500-mg
dose of midazolam, Dr. Strader stated that, “I’m not sure anybody really knows to
what degree [sedation] would onset.” Dr. Strader then indicated he would need to
defer to an anesthesiologist about the onset time of sedation from a 500-mg dose of
midazolam:
Q. Now, in an execution, is it your opinion that it would take five
minutes before a person becomes unconscious if they’re
administered 500 milligrams of midazolam?
[Objection]
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A. No, I don’t think I gave any opinion as to—as to the timing for
. . . consciousness to abate. . . . In a clinical setting, I would
defer that to an anesthesiology colleague who is, you know,
more familiar with the concept of consciousness. That’s
outside my realm of practice. Again, I think you’d see a very
rapid decrease, almost instantaneous decrease in blood pressure,
and hemodynamic effects would be virtually instantaneous.
Q. But regarding the sedative effects, you just don’t know how
long?
A. I think it would take longer; how much longer, I don’t know.
...
Q. But you can’t give us a specific amount of time?
A. No, sir.
Q. Okay.
A. I don’t think anybody can give you a specific amount of time.
(Emphasis added).
Dr. Strader later stated he was aware that anesthesiologists use midazolam to
induce anesthesia but he had never done that as it was outside the scope of his area
of practice:
Q. Have you ever known an anesthesiologist to use midazolam to
cause unconsciousness?
[Objection]
A. I would assume that anesthesiologists use midazolam in part of
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their routine practice for the—you know, in anesthesia. I don’t
know the details of what they do, or when they choose, or why
they choose what they choose, so . . .
Q. But are you aware of it being used to induce anesthesia?
[Objection]
A. I’m aware that it’s approved for that use, and I think some
anesthesiologists use it for that purpose. I don’t have any direct
knowledge of what they do.
Q. Okay. So you’re never involved in a procedure where an
anesthesiologist might use midazolam to induce anesthesia?
[Objection]
A. No, I don’t—that’s outside the scope of my clinical practice.
You know, I just let them choose what they need to choose[.]
(Emphasis added). Similarly, when asked if he knew whether midazolam “is ever
used to maintain anesthesia,” he replied that the drug “carries an indication for that
[, but] I wouldn’t have direct knowledge any particular anesthesiologist’s use of it
for that reason.”
Dr. Strader explained that anesthesiologists were not present when he
performed his invasive cardiac procedures, and there was no policy or procedure
on how much midazolam to give patients. Dr. Strader reiterated that he uses
midazolam “in patients with coronary disease all the time in routine clinical
practice.”
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4. Gradual Administration of Pentobarbital
Despite stating in his first declaration that a 2,500-mg bolus dose of
pentobarbital was also likely to induce a heart attack, Dr. Strader reiterated his
conclusion from his second declaration that, if pentobarbital were administered
gradually as part of a one-drug protocol, he did not believe that Arthur would
suffer a heart attack before being properly anesthetized. Dr. Strader admitted he
would not know how to administer 2,500 mg of pentobarbital gradually and he
would defer on that matter to an anesthesiologist:
A. I wouldn’t know how gradual to do it. I know that the analogy
holds to what we do with cardiac patients in the cath lab with
midazolam. You know, again, we use small doses gradually
over longer periods of time in order to prevent acute onset of
myocardial ischemia and acute drops in blood pressure.
Q. So when you’re talking about 2,500 milligrams, how long
would that take – [Objection] – if you administered the drug
gradually?
[Objection]
A. I would have no idea.
Q. I mean, are we talking minutes or hours – [Objection] – or do
you know?
A. I would – I would defer that to an anesthesiologist who has
more experience with the drug.
Q. Well, I mean, you’re the one making the sworn declaration, and
you said, “administered gradually,” and I’m asking you, you
know, how gradually would you have to administer it?
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[Objection]
A. Yeah. Again, I think it’s the general concept that gradual
administration in small doses, you know, is the general
paradigm to prevent adverse effects. Exactly what “gradual”
would be defined as in this instance I wouldn’t – I wouldn’t
know specifics or have specifics to recommend.
Dr. Strader also would not know how to administer a large dose of
midazolam gradually but would defer to an anesthesiologist:
Q. Okay. Do you have the same opinion on if midazolam is used
in a one-drug protocol – [Objection] – if it was administered
gradually?
A. I think the general paradigm holds in order to avoid adverse
effects with these medications, you administer them in low
doses slowly. To what extent midazolam would produce full
unconsciousness or anesthesia, again, I would defer that to an
anesthesiologist. It’s outside of my scope of practice.
(Emphasis added).
D. Dr. Buffington’s Nov. 23, 2015 Declaration
As to midazolam, the ADOC offered a declaration from Dr. Daniel
Buffington, an expert witness in the field of pharmacy. Dr. Buffington is a clinical
pharmacologist who holds a Doctor of Pharmacy and Master of Business
Administration degrees. He is on the faculty of the University of South Florida
Colleges of Pharmacy and Medicine, and he is also the president of the American
Institute of Pharmaceutical Sciences.
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Dr. Buffington agreed with Dr. Strader that a common clinical dosage of
midazolam is 2 to 5 mg, and that the 500-mg dosage contemplated in the ADOC’s
protocol “is well beyond the dosage of any existing therapeutic application.” Dr.
Buffington explained that, when clinical doses of midazolam (2-5 mg) are used as
an “anesthetic induction agent, sedation occurs . . . within 2-2.5 minutes without
narcotic pre-medications or other pre-medications with sedative effects.”
Dr. Buffington stated that the medical literature “contradicts Strader’s
theoretical concerns” and “[t]here is no scientific or medical evidence to support
the theory or concerns that midazolam (IV), at low or high dosages, would result in
a significant hypotensive event . . . prior to the onset of sedation, or is capable of
inducing or worsening ischemic cardiac damage, acute cardiac events, excruciating
pain and/or suffering.”14 According to Dr. Buffington, a rapid infusion of
midazolam could result in induction of anesthesia in as little as 30 seconds.
E. Midazolam Package Insert
The ADOC also submitted the midazolam manufacturer’s package insert
with its summary judgment motion. The insert states that sedation is achieved in 3
to 5 minutes after IV injection, and that, when midazolam is given as an anesthetic
14
We note that Arthur moved to have Dr. Buffington’s declaration excluded from the evidence,
but the district court never granted that motion. Ultimately, we do not need to rely on this
declaration, but we include it for completeness.
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induction agent, “induction of anesthesia occurs . . . in 2 to 2.5 minutes without
narcotic premedication or other sedative premedication.” (Emphasis added).
F. Dr. Strader’s March 29, 2016 Declaration
In February 2016, the district court ordered the parties to meet and confer
about a possible modified execution protocol. On March 8, 2016, as part of these
negotiations, Arthur’s counsel sent a letter to the ADOC about gradual
administration of midazolam, requesting a trained professional to use several
pieces of medical monitoring equipment and to administer other medication:
[Arthur’s] position is that a protocol designed to administer
midazolam gradually and with due consideration for Mr. Arthur’s
medical condition—including with medical monitoring of Mr.
Arthur’s health by a trained professional during the protocol with the
use of an electroencephalogram, an electrocardiogram, a bispectral
index monitor and/or other appropriate methods [which] may reduce
to some extent the likelihood of Mr. Arthur suffering the pain of a
heart attack during administration of the protocol, although it would
not ameliorate those risks entirely or address the other previously
identified reasons why the use of midazolam in a three-drug execution
protocol is violative of Mr. Arthur’s constitutional rights. Such a
modified protocol may also require the administration of other
medication to prevent cardiac complications.
(Emphasis added).
Arthur also submitted Dr. Strader’s fourth declaration, dated March 29,
2016. Dr. Strader stated that he was ethically prohibited from suggesting
modifications to a lethal injection protocol. Accordingly, he merely explained
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what precautions are taken and procedures followed when administering
midazolam in a clinical setting. Those precautions are:
x administration of midazolam “at a gradual rate closer to that used
in clinical practice—i.e., 0.5 mg to 2 mg at a time, repeated every 2
to 4 minutes,” along with;
x a trained professional (although this person need not have a
medical degree);
x who assesses the patient’s response to the prior dose before
continuing with another;
x continuous EKG monitoring;
x continuous pulse oximetry monitoring;
x frequent blood pressure monitoring;
x the ability to give fluids and medication via IV to raise blood
pressure; and
x use of the opioid fentanyl.
Ultimately, the negotiations reached an impasse with the parties unable to agree
on a modified execution protocol.
XI. MOTION FOR NEW TRIAL
On May 13, 2016, Arthur moved for a new trial on his Eighth Amendment
claim. He claimed that, three months after the trial, he discovered new evidence
that compounded pentobarbital is available to the ADOC. He alleged that, after
trial, the ADOC proffered Dr. Buffington as an expert for deposition in another
case,15 on March 17, 2016. Arthur alleged that Dr. Buffington said that he
15
Grayson v Dunn, Case No. 2:12-cv-316 (M.D. Ala.), a consolidated action known as the
“Midazolam Litigation.” This Court has explained that this “group of cases began as one lawsuit
[filed in April 2012] when an Alabama death row inmate sued pursuant to 42 U.S.C. § 1983 to
challenge the constitutionality of Alabama’s lethal injection protocol. . . . [The lawsuit] evolved
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“personally knew compounding pharmacists who would be willing to compound
pentobarbital for ADOC. . . . To obtain pentobarbital . . . defendants would ‘just
have to ask’—which they did not do.” Arthur attached only excerpts from Dr.
Buffington’s deposition testimony.
The ADOC opposed Arthur’s motion for a new trial, arguing that Arthur had
misrepresented Dr. Buffington’s testimony. The ADOC submitted a more fulsome
excerpt from Dr. Buffington’s March 17, 2016, deposition testimony, which
reflects that Dr. Buffington actually testified that (1) he knows pharmacists who
are capable of compounding pentobarbital and would do it for the ADOC, but that
(2) he would have to check with them first before he could give their names to the
ADOC:
Q. And would you be willing to compound pentobarbital for the
State of Alabama?
A. I can identify numerous other individuals who would be probably
more readily capable based on equipment and site and instrumentation
to do that, but I know that there are multiple facilities that can do that.
Q. Would they do it for the Alabama Department of Corrections?
along with the state’s new protocol, and now is known as the ‘Midazolam Litigation.’ Since
2012, cases brought by four other Alabama death row inmates have been consolidated into the
Midazolam Litigation.” Brooks, 810 F.3d at 817. Petitioner Brooks himself also successfully
intervened in the Midazolam Litigation. Id. Five additional inmates joined the suit after this
court decided Brooks. Brooks was executed on January 21, 2016. A search of the ADOC prison
records reveals that all 10 remaining plaintiffs are currently on Holman’s death row, although the
State has set a December 8, 2016 execution date for one of the plaintiffs.
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A. We’d just have to ask.
Q. Okay. Is it something – There’s a lot of controversy around – The
whole reason that we’re here is because there’s been a crackdown on
certain drugs by the manufacturers.
A. Well, I wouldn’t call it a crackdown. I would say limited market
availability.
Q. Right. They won't sell it to Departments of Corrections for executions.
A. That’s correct.
Q. Are all pharmacists sort of locked in in that regard and wouldn’t sell it
for purposes of an execution?
A. No. I’m sure just like physicians where somebody may exercise a
conscious clause that do find that within pharmacy as well. As a
matter of fact, it’s been an open area of discussion across the country.
...
Q. So you know a lot of pharmacists from going to conventions and
being on the Board [of Trustees of the American Pharmacists
Association] and teaching future pharmacists?
A. That’s correct.
Q. And you don’t think that it would be difficult for you to direct the
Alabama Department of Corrections to a compounding pharmacist
who would be willing to compound pentobarbital for them? . . .
A. I think that's a resolvable question. . . . Level of difficulty, how many
calls it would take, where that particular practice may reside. I know
that they’re there.
...
Q. Have you at any of the conferences that you go to or any of these –
You said that it's being discussed, the use of pharmaceuticals for lethal
injection.
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A. Absolutely.
Q. Okay. Have you ever had a discussion with colleagues at one of these
meetings about pentobarbital for lethal injection?
A. Yes.
Q. All right. And when you talked to people, did any of them say I would
do it?
A. Yes.
Q. And you know these people personally.
A. Yes.
Q. And would you be willing to provide their names to the Alabama
Attorney General?
A. I would check with them first, but what you're asking is would – and I
haven’t been asked to do this at this juncture – would it be possible to
identify appropriately-trained and well-staffed facilities to perform
that function, and the answer would be yes.
Q. And assuming that they gave you permission, you would share their
information with Mr. Govan or someone from the Alabama Attorney
General's office?
A. Or whoever was asking me to do that, yes.
Q. If Ms. Hill, the general counsel for ADOC, asked you, you would
assist her if you could?
A. Yes.
Subsequently, Dr. Buffington contacted these pharmacists but none were
willing to compound pentobarbital for the ADOC or even allow Dr. Buffington to
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reveal their names. To show this, the ADOC submitted an affidavit from Dr.
Buffington, dated April 22, 2016. Dr. Buffington averred that, “[n]one of the 15
pharmacists that I contacted were able and willing to supply compounded
pentobarbital for use in lethal injections to the ADOC. In addition, none of the
pharmacists provided me permission to share their names and contact information
with the ADOC or counsel for the Defendants.” (Emphasis added).
In his affidavit, Dr. Buffington further stated that he had testified at his
earlier deposition that “the use of pharmaceuticals in lethal injections is an area of
open discussion in the pharmacy community and that some colleagues I have
encountered at professional events such as national conventions and conferences
have commented that they would be willing to compound pentobarbital for use in
lethal injections.” Dr. Buffington explained that, after that deposition, counsel for
the defendants asked him to contact pharmacists and pharmacies “to inquire if any
were willing to be contacted directly by the ADOC concerning the performance of
this type of technical service.” To this end, he contacted 15 pharmacists, both
within and outside of Alabama, and asked them “about their capability to
compound sterile pentobarbital for intravenous [IV] use.”
Dr. Buffington concluded that he maintained his belief that “there are
pharmacists in the United States that are able to compound pentobarbital for use in
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lethal injections because other states have been reported to have obtained [it],” but
he was not able to locate any that were willing and able to do so.
XII. DISTRICT COURT’S JULY 19, 2016 ORDER
The district court wrote that, “[d]istilled to its essence, Arthur’s as-applied
claim is that his cardiovascular issues, combined with age and emotional makeup, 16
create a constitutionally unacceptable risk of pain that will result in a violation of
the Eighth Amendment if he is executed under the ADOC’s current protocol.” The
district court applied, as it must, the same Baze/Glossip standard to Arthur’s as-
applied challenge as it applied to his facial challenge.
As to Arthur’s health issues, the district court concluded Arthur’s Third
Amended Complaint had failed to plead adequately or properly an “as-applied”
claim and, alternatively, the district court questioned whether Arthur had presented
sufficient evidence of any truly “unique health concerns” as to his execution. But
in “an abundance of caution” the district court considered the merits of Arthur’s as-
applied claim.
Because that “as-applied” claim was based on Dr. Strader’s declarations, the
district court examined the methodology and foundation, or lack thereof,
underlying Dr. Strader’s opinions. The district court ultimately concluded that Dr.
16
In his Third Amended Complaint, Arthur alleged that, because of his age and an “anxiety
disorder,” there is a high likelihood that he will suffer a “paradoxical reaction” to midazolam.
Arthur offered absolutely no proof on this subject, and the district court rightly considered it
abandoned.
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Strader’s opinion was speculative and unreliable under Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). We thus review the district
court’s analysis of Dr. Strader’s opinion and then its reasons for excluding it.
The district court pointed out that these facts are undisputed: (1) Dr. Strader
has never examined Arthur; (2) Arthur has repeatedly refused to submit to medical
examination; and (3) Arthur has not been seen or examined by a cardiologist since
2009.
Turning first to the alternative-method prong in Arthur’s as-applied claim,
the district court determined that “Arthur failed entirely” to establish the existence
of a known and available alternative. To the extent Arthur relied on a one-drug
protocol of pentobarbital or sodium thiopental, the district court found these
options were “foreclosed” for the reasons given in its earlier order. 17
The district court found that Dr. Strader’s opinion—that Arthur’s blood
pressure would drop before sedation took effect—is “speculative and unreliable
when extrapolated from a clinical dose of 2 to 5 mg, to a non-clinical, bolus dose
of 500 mg.” The district court noted that there was no record evidence regarding
17
Arthur had filed a declaration from Dr. Kaye who opined that midazolam would not work
during the execution, whether as a large or small dose. Even in a 500-mg dose, Dr. Kaye’s
opinion is that midazolam is “incapable of holding an inmate in an unconscious state through the
administration of the second and third lethal injection drugs.” Dr. Kaye admitted that midazolam
is useful to induce unconsciousness and that he had used it for this purpose “many, many times,”
but that it is not effective to keep a patient unconscious. Dr. Kaye opined that this is because of
midazolam’s “ceiling effect,” such that it stops being effective above a certain dose.
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whether a time “gap”—between midazolam’s hemodynamic effects and its
sedative effects at a 500-mg dose—would occur at all or, if such a gap does occur,
in what sequence it would occur. The district court then “ventur[ed] into [the]
technical thicket” of available medical and scientific evidence, parsing it into four
parts: (1) the hemodynamic and anesthetic effects of midazolam; (2) a clinical
dose for sedation; (3) a clinical dose for anesthesia; and (4) a 500-mg bolus dose.
First, the district court noted that there was evidence that clinical doses of
midazolam were known to produce a drop in blood pressure. Moreover, Dr.
Strader characterized the drug as both a sedative and an anesthetic.
The district court noted Dr. Strader’s testimony that, with a clinical dose (2-
5 mg) of midazolam, there was typically a gap of three to four minutes between the
hemodynamic effects and the sedation effects of midazolam in clinical practice.
But Dr. Strader acknowledged that none of the medical literature he relied on
cautioned against using midazolam for patients with CAD and, indeed, Dr. Strader
himself used midazolam routinely to sedate his cardiac patients during invasive
cardiac procedures. Taking Dr. Strader’s claim that he, as a cardiologist, had
performed approximately 3,500 cardiac procedures with midazolam as a sedative
and only 24 of those patients experienced a heart attack after being sedated, the
district court calculated that less than 1% of those 3,500 patients suffered a heart
attack following the administration of a clinical dose of midazolam.
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The district court also analyzed the evidence regarding use of midazolam for
“anesthesia.” Dr. Strader had administered midazolam only for sedation
purposes—which is a lighter level of sedation than full anesthesia. Dr. Strader
“had no opinion as to what would be a clinical dose of midazolam sufficient to
induce anesthesia.” However, the midazolam package insert explains that, even at
small clinical dosage levels, midazolam can induce both sedation and anesthesia in
as little as 2 minutes without narcotic premedication. In other words, if a 2-5 mg
dose of midazolam produced sedation or anesthesia in two minutes, Arthur had
failed to show how long it took a 500-mg dose to achieve anesthesia or that both
the blood pressure drop and a heart attack would occur before a 500-mg dose
achieved anesthesia.
The district court also pointed out that: (1) Dr. Strader had experience with
small doses; (2) Dr. Strader declined to offer any opinion about the length of time
it would take a 500-mg dose of midazolam to render a patient unconscious,
reiterating many times that anesthesia was outside his field of expertise; and
(3) nevertheless, Dr. Strader “remained of the opinion that the sedative effects of a
500-mg bolus dose would take longer than the hemodynamic effects.”
The district court rejected Dr. Strader’s opinion of the time gap as unreliable
under Daubert. The district court stressed three reasons. First, Dr. Strader was
incapable of saying how much time it would take a 500-mg dose to render a patient
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unconscious and, therefore, “it is impossible for him to extrapolate a sequence of
hemodynamic effect and sedation.” Second, any theoretical “gap” between
hemodynamic and sedative effects is speculative because this gap is connected
with much lower dosages. Third, Dr. Strader himself has never administered more
than 20 mg of midazolam during his career. In short, Arthur had provided no
“admissible medical expert opinion testimony to establish either the clinical dosage
of midazolam necessary to induce anesthesia or the time-frame within which that
would occur.” (Emphasis added).
Even as to whether Arthur has CAD in the first place, the district court
determined that, because Arthur had not submitted to a medical examination since
2009, Dr. Strader’s opinion that Arthur suffered from CAD also “borders on being
speculative and unreliable.” As the district court explained, “[b]oth must exist—
the heart condition and the gap [in time between the hemodynamic effects and the
sedation effects of midazolam] Dr. Strader expects—for there to be a realistic
likelihood of the heart attack” before sedation takes effect. Based on the evidence
as presented, the court determined that “it cannot be said that a heart attack is sure
or very likely at all; one cannot make that connection from the medical evidence.”
Therefore, Arthur had failed to raise a genuine dispute of material fact of a “sure or
very likely risk of severe pain in the application of Alabama’s execution protocol
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as applied to him,” and this failure “dooms his as-applied Eighth Amendment
claim.”
As to Arthur’s motion for a new trial, the district court concluded that
“Arthur’s ‘new evidence’ is nothing but generic testimony from Dr. Buffington
describing passing conversations he has had with other pharmacists during national
conventions concerning the use of pharmaceuticals, including pentobarbital, for
lethal injection.” However, in his subsequent affidavit, Dr. Buffington actually
admitted that he contacted 15 pharmacists and none were willing or able to provide
compounded pentobarbital for use in lethal injections for the ADOC. Thus, Dr.
Buffington’s earlier deposition testimony was not “likely to produce a new result”
at trial, and the motion for a new trial was denied.
On July 19, 2016, the district court entered its final judgment in favor of the
defendants. Arthur timely appealed the final judgment to our Court. We read the
Final Judgment to encompass both the April 15, 2016 and July 19, 2016 orders.
This Court ordered expedited briefing, which is now complete as of October 19,
2016. The Alabama Supreme Court has set an execution date of November 3,
2016.
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XIII. RELEVANT LAW
With this lengthy procedural history in mind, we turn to Arthur’s arguments
on appeal. Before we do so, however, it is helpful to set forth the legal framework
within which we must resolve Arthur’s claims.
A. Glossip and Baze
The Eighth Amendment prohibits “cruel and unusual punishments.” U.S.
Const. amend. VIII. The Supreme Court has repeatedly held the death penalty to
be constitutional. See Glossip, 135 S. Ct. at 2739. “[I]t necessarily follows that
there must be a constitutional means of carrying it out.” Id. at 2732-33 (alterations
adopted) (quoting Baze, 553 U.S. at 47, 128 S. Ct. at 1529) (internal quotation
marks omitted). Further, the Supreme Court has held that “some risk of pain is
inherent in any method of execution,” and that the Constitution does not require
“the avoidance of all risk of pain.” Id. at 2733 (quoting Baze, 553 U.S. at 47, 128
S. Ct. at 1529).
The Supreme Court has required prisoners seeking to challenge a state’s
method of execution to meet a “heavy burden.” Baze, 553 U.S. at 53, 128 S. Ct. at
1533 (internal quotation marks omitted). Thus, in order to succeed on an Eighth
Amendment method-of-execution claim, the Supreme Court has instructed that
prisoners must demonstrate that the challenged method of execution presents a risk
that is “sure or very likely to cause serious illness and needless suffering, and give
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rise to sufficiently imminent dangers.” Glossip, 135 S. Ct. at 2737 (quoting Baze,
553 U.S. at 50, 128 S. Ct. at 1531) (internal quotation marks omitted). “To prevail
on such a claim, there must be a substantial risk of serious harm, an objectively
intolerable risk of harm.” Id. (internal quotation marks omitted).
This requires more than merely showing “a slightly or marginally safer
alternative.” Id. (quoting Baze, 553 U.S. at 51, 128 S. Ct. at 1531) (internal
quotation marks omitted). Instead, prisoners are required to “identify an
alternative that is feasible, readily implemented, and in fact significantly reduces a
substantial risk of severe pain.” Id. (citing Baze, 553 U.S. at 52, 128 S. Ct. at
1532) (internal quotation marks and alteration omitted). In other words, the
prisoner must demonstrate that the risk of severe pain is substantial “when
compared to the known and available alternatives.” Id. (emphasis added) (citing
Baze, 553 U.S. at 61, 128 S. Ct. at 1537). Thus, we must view the two “prongs” of
the Baze/Glossip test in concert—it is not enough to ask merely if the risk of
severe pain is substantial. Instead, the risk of severe pain must be substantial and
objectively intolerable in comparison to an alternative method that is feasible and
readily implemented. Id. And that alternative method must “significantly reduce”
a substantial risk of severe pain. Id. “As the Supreme Court made abundantly
clear in Glossip itself, the burden rests with the claimant to ‘plead and prove’ both
prongs of the test.” Brooks, 810 F.3d at 819.
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Critical to this case, Glossip involved the same three-drug protocol that the
ADOC will use in Arthur’s execution. 135 S. Ct. at 2734-35. In Glossip, the
Supreme Court concluded, inter alia, that the petitioner had not “proved that any
risk posed by midazolam is substantial when compared to known and available
alternative methods of execution.” Id. at 2737-38. The Supreme Court later
repeated that the petitioners had not satisfied their burden of establishing that any
risk of harm was substantial when compared to a known and available alternative
method of execution. Id. at 2738-39.
B. Feasible, Readily Implemented, and Significantly Safer
While the Supreme Court in Glossip did not explicitly define “feasible,”
“readily implemented,” or “known and available,” it upheld a factual finding that
both sodium thiopental and pentobarbital were unavailable to Oklahoma by 2014
for use in executions where the state was unable to procure those drugs due to
supplier problems. Glossip, 135 S. Ct. at 2733-34, 2738.
And earlier in 2016, in another Alabama-execution case, this Court rejected
an inmate’s claim that the exact same alternatives that Arthur proposes here—
namely, single-drug protocols of either pentobarbital18 or sodium thiopental—were
18
Although it is not entirely clear, it appears that the petitioner in Brooks was arguing that
compounded (not commercially manufactured) pentobarbital was a known and available
alternative method of execution. See Brooks, 810 F.3d at 819 & n.2. Arthur’s allegation that
Alabama’s supply of commercially manufactured pentobarbital expired on or around November
2013 also supports this presumption.
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alternatives “available to the ADOC that significantly reduce the risk of an
unconstitutional level of pain.” Brooks, 810 F.3d at 819.19 This Court concluded
that (1) “the fact that the drug [pentobarbital] was available in those states at some
point over the past two years does not, without more, make it likely that it is
available to Alabama now”; and (2) Brooks had not shown that “there is now a
source for pentobarbital that would sell it to the ADOC for use in executions.” Id.
at 819-20.
In that same Alabama-execution case, this Court determined that petitioner
Brooks had not shown that sodium thiopental was available. Id. at 820-21. Brooks
had relied on certain news articles that other states had been able to obtain the
drug, but these sources actually undermined his claim that the ADOC “could
readily import sodium thiopental.” Id. As to Brooks’s request for a single-drug
midazolam protocol, this Court noted that Brooks had conceded that a midazolam-
only protocol had never been used in an execution, and his concession “deeply
undercut his claim that it is a known, readily implementable, and materially safer
lethal injection alternative.” Id. at 821-22. And given the dearth of evidence
presented on the safety of this untested alternative, Brooks was unlikely to
establish that it was “materially safer than a protocol that is identical to one
19
The Brooks Court also rejected a midazolam-only alternative. 810 F.3d at 821-22.
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approved by the Supreme Court.” Id. at 822 (citing Glossip, 135 S. Ct. at 2734-
35).
Viewing these precedents together, we conclude that Glossip’s “known and
available” alternative test requires that a petitioner must prove that (1) the State
actually has access to the alternative; (2) the State is able to carry out the
alternative method of execution relatively easily and reasonably quickly; and
(3) the requested alternative would “in fact significantly reduce[] a substantial risk
of severe pain” relative to the State’s intended method of execution. Glossip, 135
S. Ct. at 2737; Brooks, 810 F.3d at 819-23.
With this legal framework in mind, we now address each of Arthur’s
arguments on appeal in turn.
XIV. PENTOBARBITAL IS NOT AVAILABLE TO ADOC
Arthur claims that the district court erred in finding that he had not carried
his burden to show that pentobarbital is a feasible and readily implemented
alternative method of execution available to the ADOC.20
The standard of review and burden of persuasion are critical to the resolution
of this case. The Supreme Court has made unequivocally clear that, in method-of-
execution challenges, (1) the district court’s factual findings are reviewed under a
deferential clear error standard, and (2) the petitioner-inmate bears the burden of
20
In this appeal, Arthur has not resurrected his claim regarding a one-drug protocol of sodium
thiopental as a feasible alternative method of execution. Accordingly, we will not address it.
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persuasion. Glossip, 135 S. Ct. at 2739. This includes the requirement that a
plaintiff inmate must “plead and prove a known and available alternative.” Id. at
2738, 2739.
In Glossip, the Supreme Court considered a challenge to the identical lethal
injection protocol at issue in this case—midazolam, followed by a bromide-based
paralytic, followed by potassium chloride. Id. at 2734-35. The dosage of
midazolam is the same here as in Glossip: 500 milligrams. Id. at 2740. The
Glossip plaintiffs brought a § 1983 action alleging that this protocol, particularly
midazolam, created an unacceptable risk of severe pain and sought a preliminary
injunction. Id. at 2731.
The Supreme Court in Glossip affirmed the district court’s denial of relief
for two reasons. First, it held that the plaintiffs had not identified a “known and
available alternative method of execution that entails a lesser risk of pain, a
requirement of all Eighth Amendment method-of-execution claims.” Id. (emphasis
added). Second, it determined that the district court did not clearly err in finding
that the prisoners failed to establish that Oklahoma’s use of a large dose of
midazolam in its execution protocol entailed “a substantial risk of severe pain.” Id.
We follow the Supreme Court’s lead and address the requirements of the
Baze/Glossip test in that order: (1) proof of known and available alternatives;
(2) proof that 500 mg of midazolam will cause a substantial risk of severe pain and
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that known and available alternatives will “significantly reduce” that substantial
risk of severe pain.
Here, the district court’s factual finding that pentobarbital was not available
to the ADOC for use in executions was not clearly erroneous.
On the contrary, substantial record evidence supports that finding, including
(1) Arthur’s own concession that the ADOC’s supply of commercially
manufactured pentobarbital expired in November 2013; (2) Dr. Zentner’s inability
to point to any source willing to compound pentobarbital for the ADOC; and
(3) ADOC lawyer Hill’s testimony that, despite contacting 29 potential sources for
compounded pentobarbital (including the departments of corrections of four states
and all of the compounding pharmacies on Dr. Zentner’s list), she was unable to
procure any compounded pentobarbital for the ADOC’s use in executions.
Arthur would have us hold that if a drug is capable of being made and/or in
use by other entities, then it is “available” to the ADOC. Arthur stresses that:
(1) pharmacies throughout Alabama are theoretically capable of compounding the
drug; (2) the active ingredient for compounded pentobarbital (pentobarbital
sodium) is generally available for sale in the United States; and (3) four other
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states were able to procure and use compounded pentobarbital to carry out
executions in 2015. 21
We expressly hold that the fact that other states in the past have procured a
compounded drug and pharmacies in Alabama have the skills to compound the
drug does not make it available to the ADOC for use in lethal injections in
executions. The evidentiary burden on Arthur is to show that “there is now a
source for pentobarbital that would sell it to the ADOC for use in executions.”
Brooks, 810 F.3d at 820 (emphases added).
To adopt Arthur’s definition of “feasible” and “readily implemented” would
cut the Supreme Court’s directives in Baze and Glossip off at the knees. As this
Court explained in Brooks, a petitioner must show that “there is now a source for
pentobarbital that would sell it to the ADOC for use in executions.” 810 F.3d at
21
Arthur’s claim is only about “compounded pentobarbital,” and he makes no claim that the
ADOC has access to commercially manufactured pentobarbital. Nor could he. In Glossip, the
Supreme Court observed that Oklahoma in December 2010 became the first state to execute an
inmate using pentobarbital, and states “gradually shifted to pentobarbital as their supplies of
sodium thiopental ran out.” 135 S. Ct. at 2733. Pentobarbital was used in all 43 executions
carried out in 2012. Id. As the Supreme Court noted, “[b]efore long, however, pentobarbital
also became unavailable” because “[a]nti-death-penalty advocates lobbied the Danish
manufacturer of the drug to stop selling it for use in executions.” Id. “That manufacturer
opposed the death penalty and took steps to block the shipment of pentobarbital for use in
executions in the United States.” Id. The Supreme Court added, “Oklahoma eventually became
unable to acquire the drug through any means.” Id.
As Arthur points out in his reply brief, more than a dozen inmates (to date, seven in
Texas, seven in Georgia, and one in Missouri) have been executed in 2016 using a single-drug
pentobarbital protocol. See Execution List 2016, DEATH PENALTY INFORMATION CENTER,
http://www.deathpenaltyinfo.org/execution-list-2016. Given Glossip, these states presumably
used compounded pentobarbital in these executions.
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820 (emphases added). This Arthur patently did not do. Arthur’s own expert
witness, Dr. Zentner, could not even identify any pharmacies that had actually
compounded an injectable solution of compounded pentobarbital for executions or
were willing to do so for the ADOC. And when ADOC attorney Hill actually
asked the pharmacies identified by Dr. Zentner if they would be willing to
compound pentobarbital for the ADOC, they all refused. What’s more, Hill
contacted no less than 29 potential sources for compounded pentobarbital—
including numerous pharmacies and four states’ departments of corrections. All of
these efforts were unsuccessful.
And while four states had recently used compounded pentobarbital in their
own execution procedures, the evidence demonstrated that none were willing to
give the drug to the ADOC or name their source. As we have explained, “the fact
that the drug was available in those states at some point . . . does not, without
more, make it likely that it is available to Alabama now.” Brooks, 810 F.3d at 819.
On this evidence, the district court did not clearly err in determining that Arthur
failed to carry his burden to show compounded pentobarbital is a known and
available alternative to the ADOC. An alternative drug that its manufacturer or
compounding pharmacies refuse to supply for lethal injection “is no drug at all for
Baze purposes.” Chavez v. Florida SP Warden, 742 F.3d 1267, 1275 (11th Cir.
2014) (Carnes, C.J., concurring).
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Arthur also argues that the ADOC did not make a “good faith effort” to
obtain pentobarbital. Glossip did not impose such a requirement on the ADOC. In
Glossip, the Supreme Court upheld the district court’s factual finding that the
proposed alternative drugs were not “available.” See Glossip, 135 S. Ct. at 2738.
It continued, “[o]n the contrary, the record shows that Oklahoma has been unable
to procure those drugs despite a good-faith effort to do so.” Id. Nothing in Glossip
changed the fact that it is not the state’s burden to plead and prove “that it cannot
acquire the drug.” Brooks, 810 F.3d at 820.22 The State need not make any
showing because it is Arthur’s burden, not the State’s, to plead and prove both a
known and available alternative method of execution and that such alternative
method significantly reduces a substantial risk of severe pain. Glossip, 135 S. Ct.
at 2737, 2739.
As an alternative, independent reason for affirmance, we also conclude that
even if Glossip somehow imposes a good-faith effort on the State, the ADOC
made such an effort here by contacting 29 potential sources for the drug, including
four other departments of correction and multiple compounding pharmacies.
22
In support of his argument, Arthur points us to language from Baze that a state’s refusal to
change its method of execution “in the face of these documented advantages, [and] without a
legitimate penological justification for adhering to its current method of execution” can violate
the Eighth Amendment. Baze, 553 U.S. at 52, 128 S. Ct. at 1532. But this language would
apply only where the death-sentenced petitioner has already met his burden of proof and
established an available alternative method of execution that “significantly reduce[s] a
substantial risk of severe pain,’” which Arthur did not do here. See Glossip, 135 S. Ct. at 2737.
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Under these record facts, we cannot fault at all the district court’s finding
that the procurement of compounded pentobarbital was not “feasible and readily
implemented as an execution drug in Alabama, nor [was] it readily available to the
ADOC.”
We also reject Arthur’s argument that the district court’s ruling was a
“nullification” of his Eighth Amendment rights. The district court even waited for
Glossip to be decided and then followed Glossip’s requirement that the inmate
must show that the risk of severe pain from the chosen method is substantial “when
compared to the known and available alternatives.” Glossip, 135 S. Ct. at 2737
(emphasis added). As we discussed above, Arthur did not show that his alternative
was “known and available,” much less (as discussed more later) that his suggested
alternative “significantly reduce[d]” a substantial risk of severe pain. See id.
As for the alleged risk of severe pain in Alabama’s current protocol, “it is
difficult to regard a practice as ‘objectively intolerable’ when it is in fact widely
tolerated.” Baze, 553 U.S. at 53, 128 S. Ct. at 1532. Both this Court and the
Supreme Court have upheld the midazolam-based execution protocol that Arthur
challenges here. Glossip, 135 S. Ct. at 2739-40 (noting that “numerous courts have
concluded that the use of midazolam as the first drug in a three-drug protocol is
likely to render an inmate insensate to pain that might result from administration of
the paralytic agent and potassium chloride.”); Brooks, 810 F.3d at 818, 819
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(concluding that petitioner Brooks had not established a substantial likelihood that
Alabama’s lethal injection protocol creates a “demonstrated risk of severe pain,”
and noting that this was “an especially difficult burden” given the Supreme Court’s
approval of the exact same protocol in Glossip); Chavez, 742 F.3d at 1269
(affirming the dismissal of Eighth Amendment challenge to Florida’s nearly
identical lethal injection protocol that uses 500 mg of midazolam as the first drug).
Indeed, in Glossip, the Supreme Court emphasized that midazolam has been
repeatedly and successfully used without problems as the first drug in the three-
drug lethal injection protocol. 135 S. Ct. at 2734, 2740-46. The Supreme Court
observed that, in October 2013, Florida became the first state to substitute
midazolam for pentobarbital as part of a three-drug protocol. Id. at 2734. The
Supreme Court stressed that, at the time that it decided Glossip in June 2015,
Florida had conducted 11 executions using this lethal injection protocol (with
midazolam as the first drug). Id. (citing Brief for State of Florida as Amicus
Curiae 2-3 and Chavez, 742 F.3d at 1269). The Glossip Court noted that 12
executions total (including the 11 from Florida and one from Oklahoma) had been
conducted using this three-drug protocol “without any significant problems.” Id. at
2734, 2746. Since then, Florida has executed two additional inmates under that
protocol. See Execution List: 1976 – present, FLA. DEP’T OF CORR.,
http://www.dc.state.fl.us/oth/deathrow/execlist.html (providing the list of executed
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Florida inmates); Execution by Lethal Injection Procedures, FLA. DEP’T OF CORR.
(Jan. 9, 2015), http://www.dc.state.fl.us/oth/deathrow/lethal-injection-procedures-
as-of_01-09-15.pdf (describing Florida’s current lethal injection protocol).
Arthur has failed to show not only that compounded pentobarbital is an
available alternative to the ADOC but also that ADOC’s protocol creates a
substantial risk of severe pain when compared to available alternatives. See
Glossip, 135 S. Ct. at 2737.
For all of these reasons, we affirm the district court’s determination that the
ADOC was entitled to judgment on Arthur’s facial Eighth Amendment challenge.
XV. DISCOVERY CLAIM
Before leaving pentobarbital, we address one more claim Arthur raises about
that drug. Arthur argues that the district court abused its discretion in limiting his
discovery regarding primarily the ADOC’s knowledge of and efforts to obtain
compounded pentobarbital as an alternative method of execution. We review the
district court’s discovery decisions for abuse of discretion. Burger King Corp. v.
Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999); Sanderlin v. Seminole Tribe of
Fla., 243 F.3d 1282, 1285 (11th Cir. 2001) (explaining that this Court reviews a
district court’s denial of a motion to compel discovery for abuse of discretion). As
we have explained:
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A district court has wide discretion in discovery matters and our
review is “accordingly deferential.” A court abuses its discretion if it
makes a “clear error of judgment” or applies an incorrect legal
standard. Moreover, a district court's denial of additional discovery
must result in substantial harm to a party’s case in order to establish
an abuse of discretion.
Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009) (citations omitted).
Here, the district court did not disallow all discovery about pentobarbital but
did restrict the scope of some additional discovery. For example, the district court
allowed additional discovery as to the “availability or unavailability of
pentobarbital or compounded pentobarbital” to the ADOC, including a general
description of the State’s “efforts to obtain pentobarbital, including whether the
pentobarbital was obtained and, if not, the reasons why it could not be obtained.”
This information was precisely what Arthur needed to prove his Eighth
Amendment claim.
Accordingly, during ADOC lawyer Hill’s November 2015 deposition and
again at the January 2016 trial, Arthur questioned Hill about the ADOC’s attempts
to obtain compounded pentobarbital. According to Hill, although she repeatedly
attempted to obtain compounded pentobarbital from various sources, including the
18 pharmacies identified by Arthur’s expert witness, all of her attempts were
unsuccessful.
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Arthur complains that the district court did not require the ADOC to disclose
the names of the drug suppliers who talked to the ADOC about pentobarbital
during the ADOC’s efforts to procure the drug for executions. Given the
controversial nature of the death penalty, it is not surprising that parties who might
supply these drugs are reluctant to have their names disclosed.
Considering the district court’s broad discretion, we cannot say its decision
about discovery resulted in “substantial harm” to Arthur’s case. See Bradley, 556
F.3d at 1229.
On appeal, Arthur argues that “if discovery revealed” that ADOC did not
pursue certain sources, or “if discovery revealed” that negotiations broke down
over prices, it would impact his claim. He worries that, without access to this
discovery, the ADOC “could have presented self-serving representations.” All of
this is pure speculation. Arthur never deposed or questioned even the prospective
suppliers that his own expert identified about whether they would provide
compounded pentobarbital to the ADOC. Arthur has given us no reason to think
that the ADOC lied or presented false evidence either during discovery or at trial
and, indeed, the district court noted that the ADOC had claimed to produce
everything of relevance. Under these circumstances, we cannot say that the district
court abused its discretion in denying the discovery sought by Arthur.
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XVI. AS-APPLIED EIGHTH AMENDMENT CLAIM
Because Arthur’s facial Eighth Amendment claim so readily fails, Arthur
turns his focus in this appeal to his “as-applied” Eighth Amendment claim. We
explain why the district court did not err in granting summary judgment on
Arthur’s “as-applied” claim. 23
The first hurdle for Arthur is that the pleading burden and standard of proof
set forth in Baze and Glossip apply to both facial and as-applied Eighth
Amendment method-of-execution claims. See Gissendaner v. Comm’r, Ga. Dep’t
of Corr., 803 F.3d 565, 569 (11th Cir.), cert. denied sub nom. Gissendaner v.
Bryson, 136 S. Ct. 26 (2015) (“[T]here is no logical reason why there should be a
readily available alternative requirement in facial challenges to lethal injection
protocols but not to as-applied challenges to them.”); see id. at 568-69 (holding
that a Georgia death-row inmate had failed to adequately allege that there was a
substantial risk to her personally because the state had improperly stored the
particular drug to be used at her execution).
Thus, Arthur had the burden to present evidence sufficient to create a
genuine issue of disputed material fact as to whether midazolam creates a
23
We review a district court’s ruling on summary judgment de novo. Mathews v. Crosby, 480
F.3d 1265, 1268 (11th Cir. 2007). Summary judgment is appropriate only when the evidence
before the court demonstrates that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The evidence must be
viewed in the light most favorable to Arthur as the nonmoving party. Mathews, 480 F.3d at
1269.
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substantial risk of severe pain as applied to him uniquely “when compared to the
known and available alternatives” for his execution as applied to him. Glossip,
135 S. Ct. at 2737; Gissendaner, 803 F.3d at 568-69. This he did not do. We
address Arthur’s proposed alternatives and then Arthur’s allegation that midazolam
will affect him differently and uniquely from other inmates by causing him to
experience the pain of a heart attack a few minutes before being rendered
unconscious.
A. As-Applied Alternatives
As to the alternative-method requirement for his as-applied claim, Arthur
has not established, as explained above, that a one-drug protocol consisting of
compounded pentobarbital (or, for that matter, a one-drug protocol consisting of
sodium thiopental) is a “known and available” alternative to the ADOC at this time
for any inmate, much less as to Arthur on November 3, 2016. That leaves only his
proposed alternative of material and extensive modifications to Alabama’s current
protocol, which Arthur suggests will reduce “to some extent” but not eliminate the
risk of his having a heart attack.24
24
Arthur failed to specifically plead, or request, a modification of the midazolam protocol in his
Second or Third Amended Complaints. The district court would have been well within its
discretion to dismiss any such putative claim. See Glossip, 135 S. Ct. at 2739 (conferring on
petitioners the burden to plead and prove a known and available alternative). But since the
district court addressed the claim on the merits, we do too.
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Arthur’s proposed modified protocol has many components, starting with
the administration of midazolam gradually. In his fourth declaration, Dr. Strader
opined that administration of midazolam at a rate “closer to that used in clinical
practice—i.e., 0.5 mg to 2 mg at a time, repeated every two to four minutes” would
reduce the risk of a precipitous drop in blood pressure. Dr. Strader’s fourth
declaration does not state how long these small dosages should be administered to
the inmate, what the intended effect would be, how to gauge when that intended
effect would be reached, at what point unconsciousness would be reached in
gradual administration, or at what point the second and third drugs should be
administered. Arthur concedes, as he must, that a gradual administration of
midazolam has not previously ever been used in a lethal-injection execution, which
alone suggests Arthur’s difficulty in proving that a gradual administration is a
significantly safer alternative. See Brooks, 810 F.3d at 821-22 (concluding that the
petitioner had not met his burden of showing that a midazolam-only protocol was a
“feasible, readily implementable, and significantly safer” method of execution
where such a protocol had never been used).
Arthur’s proposed modified protocol also includes extensive monitoring
with multiple pieces of sophisticated medical equipment, the use of additional
“medication” and IV fluids, and the attendance of a “trained professional.”
Arthur’s March 8, 2016, letter to the ADOC’s attorneys requested that a “trained
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professional” use an electroencephalogram, an electrocardiogram (“EKG”), and a
bispectral index monitor “and/or other appropriate methods” to monitor Arthur
throughout the execution. Arthur also requested the availability of “other
medication to prevent cardiac complications.”
Dr. Strader echoed that, “[i]n the clinical setting, continuous EKG
monitoring, continuous pulse oximetry monitoring . . . and frequent blood pressure
monitoring (every one to two minutes) are common.” As to the additional
medication and fluids, Dr. Strader stated that, “[i]n clinical practice,” if a patient is
in danger of a heart attack, “pressors” or “agents to increase blood pressure are
typically given, such as intravenous phenylephrine (Neosynephrine) or intravenous
dopamine.” In addition, “in clinical practice, the opioid fentanyl is often
administered with midazolam, and the drug romazicon may be used to reverse
midazolam’s effects.”
Again, Arthur’s proposed modified protocol is light on specifics. Other than
Dr. Strader’s assertion that the “trained professional” need not hold a medical
degree, Arthur does not posit what training, or how much training, this professional
must have, who this person might be or where the ADOC might find them to
participate in an execution within a prison setting. Arthur does not explain how the
addition of five separate monitoring machines and/or procedures would be
incorporated into the ADOC’s current protocol. Arthur does not state what sort of
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anomaly in that monitoring would require action by the trained professional, nor
what those actions would include.
While Dr. Strader stated that “changes in EKG monitoring” indicating the
onset of a heart attack could lead to the administration of pressors, he does not
state what sort of “changes” would require this, the amount of pressors to be given,
or in what order in relation to the rest of the lethal injection protocol they should be
administered. Arthur does not suggest at what dosage the trained professional
would administer the opioid fentanyl or the drug romazicon to the inmate or under
what factual circumstances those drugs should be administered and for how long.
Arthur also has presented no evidence that suppliers would provide these
medicines, such as fentanyl, to the ADOC for use in executions.
More importantly, though, is that Arthur admitted in a letter to the ADOC’s
counsel that his proposed modified protocol “may reduce to some extent the
likelihood of Mr. Arthur suffering the pain of a heart attack during administration
of the protocol, although it would not ameliorate those risks entirely.” (emphases
added). Glossip cautions us that prisoners cannot successfully challenge a method
of execution “‘merely by showing a slightly or marginally safer alternative.’” 135
S. Ct. at 2737 (quoting Baze, 553 U.S. at 51, 128 S. Ct. at 1531). But a
“marginally safer” alternative is, at best, all that Arthur has suggested. It is not
enough to meet his burden under Glossip and Baze. See Baze, 553 U.S. at 56-57,
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128 S. Ct. at 1534-35 (rejecting the petitioners’ proposed alternative method of
execution where there was no evidence demonstrating that it was an “equally
effective manner” of death than the three-drug protocol used in Kentucky); Brooks,
810 F.3d at 821-22 (holding that, given the lack of available evidence regarding a
midazolam-only lethal injection protocol, Brooks was unlikely to establish “that a
heretofore untested lethal injection protocol . . . is materially safer than a protocol
that is identical to one approved by the Supreme Court [in Glossip.]”).
Alternatively, we agree with the district court that Arthur has not introduced
any evidence of sufficient specifics to make his proposed modified protocol a
viable and feasible alternative method of execution that the ADOC could “readily
implement” for his execution on November 3, 2016. Arthur argues that he could
not provide more specifics because doctors are prohibited from participating in
lethal injections.25 This seems contradicted by Dr. Strader’s testimony, which
outlines the broad components of Arthur’s proposal, albeit without many of the
specifics necessary to implement it.
In any event, we need not rely on the lack of specifics because Arthur has
not shown that his proposed modified protocol will “significantly reduce” any
25
Rule 9.7.3 of the American Medical Association’s (“AMA”) Code of Medical Ethics provides
that “a physician must not participate in a legally authorized execution,” with “participation”
defined as, inter alia, the “[r]endering of technical advice regarding execution.” AMA Code of
Medical Ethics Rule 9.7.3 (2016).
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“substantial risk of severe pain” or is constitutionally required 26 See Glossip, 135
S. Ct. at 2737. If anything, the vastly reduced levels of midazolam seem more
complicated and designed to prolong the execution proceeding itself, which may
create more, not less, risk of error.
Thus, the district court did not err in concluding that there was no genuine
dispute of material fact as to whether Arthur could meet his burden of proof to
show that his proposed material and extensive changes to the midazolam protocol
would be a known and available alternative that would “significantly reduce a
substantial risk of severe pain.” Without a proper showing on this alternative-
method prong, Arthur’s as-applied Eighth Amendment claim is without merit and
this alone warranted the district court’s grant of summary judgment. However,
because the district court went on to address the substantial-risk-of-severe-pain
26
Ironically, Dr. Kaye, Arthur’s other expert, opined that midazolam was “fundamental[ly]
unsuitab[le] . . . as the first drug in the ADOC protocol” because it was “incapable” of
maintaining unconsciousness through administration of the second and third drug. The district
court found that this evidence was “wholly inconsistent” with Arthur’s latest position that
gradual administration of small doses of midazolam could be a feasible, readily available, and
safer alternative. For this reason, the district court found that “Arthur cannot credibly propose
the use of midazolam in any argument for a remedy [i.e., an alternative method], based upon his
own evidence.” The district court did not see how Arthur can argue that midazolam in small
doses can be used to painlessly render him unconscious and, in the same breath, say that the drug
ought not to be used at all in any dose because it will not render him insensate during the
administration of the second and third drugs. See Brooks, 810 F.3d at 822 (noting a similar
“fundamental tension” in the petitioner’s argument that a midazolam-only protocol was a known
and available alternative).
As an independent and alternative ground, this testimony by Arthur’s own expert witness
also demonstrates that the district court did not clearly err in finding that Arthur did not meet his
burden to show a known, available, and substantially safer alternative, as he was required to do
in his as-applied claim. Glossip, 135 S. Ct. at 2737; Gissendaner, 803 F.3d at 568-69.
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prong of the Baze/Glossip test, and Arthur’s arguments on appeal focus on this
portion of the district court’s order, we too will consider that issue.
B. As-Applied Substantial Risk of Severe Pain
To be clear, because, in his as-applied claim, Arthur has not carried his
burden to show a known and available alternative, we need not reach his claim that
the ADOC’s use of 500 mg of midazolam will cause him uniquely to suffer a heart
attack a few minutes before full sedation. But we do so because it is so apparent
that Arthur’s as-applied claim fails on that separate prong too. Indeed, Arthur
failed to present any admissible evidence that 500 mg of midazolam, as applied to
him, will cause a heart attack before full sedation. Dr. Strader is Arthur’s only
expert witness on this as-applied issue. And the district court excluded this time-
gap part of his opinion testimony under Daubert.
We review a district court’s decision to exclude expert testimony under
Daubert for an abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43,
118 S. Ct. 512, 517 (1997). Under this standard, this Court defers to the district
court’s ruling unless it is manifestly erroneous. Quiet Tech. DC-8, Inc. v. Hurel-
Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003). This deferential standard
is not relaxed even though a Daubert ruling may be outcome determinative.
Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1334–35 (11th Cir. 2010). In addition, the
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party offering the expert has the burden of proving the admissibility of the
testimony by a preponderance of the evidence. Id.
Federal Rule of Evidence 702 governs the admission of expert testimony in
federal court and provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
Applying these principles, this Court has held that, to be admissible, three
requirements must be met:
First, the expert must be qualified to testify competently regarding the
matter he or she intends to address. Second, the methodology used
must be reliable as determined by a Daubert inquiry. Third, the
testimony must assist the trier of fact through the application of
expertise to understand the evidence or determine a fact in issue.
Kilpatrick, 613 F.3d at 1335.
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Dr. Strader is a qualified cardiologist and competent to testify as such. But
Dr. Strader’s opinion testimony hinged on the existence of a measurable time gap
between the hemodynamic and sedative effects of a 500-mg dose of midazolam on
patients with CAD. The district court’s Daubert exclusion was based on Dr.
Strader’s methodology being speculative and unreliable.
Dr. Strader’s opinion was based on at least five underlying ingredients in his
methodology mix: (1) Arthur actually has, or is “highly likely” to have, a clinically
significant case of CAD; (2) a 500-mg dose of midazolam will result in a
precipitous and dangerous blood pressure drop in Arthur; (3) that blood pressure
drop will in turn trigger a heart attack in Arthur; (4) the sedative effects of a 500-
mg dose of midazolam will take longer than both this hemodynamic effect and the
heart attack to occur; and (5) due to this time gap, Arthur is “likely” to feel the pain
of the heart attack for a few minutes before he is rendered fully unconscious. The
district court, in effect, concluded that each of these steps in Dr. Strader’s
methodology were speculative and not reliable. Without even one of these steps,
Dr. Strader’s opinion folds like a house of cards. We explain why the district court
did not abuse its discretion in concluding that Dr. Strader’s methodology was
unreliable and in excluding his time-gap opinion.
First, we address Dr. Strader’s medical opinion that Arthur “likely” has
CAD. It is undisputed that (1) no doctor has ever actually diagnosed Arthur with
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CAD; and (2) Dr. Strader himself has never examined Arthur, talked to Arthur’s
treating physicians, or done anything more than review the medical records given
to him. Further, Arthur’s medical records nowhere state that Arthur has ever had a
heart attack, has ever been diagnosed with a heart attack, or has ever had a
procedure performed to assess whether Arthur has any blockage in his arteries or at
what level.
The most the medical records say is that Arthur had “abnormal” EKGs in
1999 and 2009, twice had atrial fibrillation (during his 2004 abdominal surgery and
his 2009 EKG), and had a normal echocardiogram in 2004. There is no description
of what was “abnormal” in the EKGs. Arthur did visit the prison clinic on two
occasions complaining of being short of breath, dizzy, sweaty, and/or having chest
pains. But these two visits (in 1999 and 2009) were ten years apart, and Arthur has
never requested any medical treatment from a cardiologist.
In fact, Dr. Strader relies primarily on Arthur’s age, hypertension, atrial
fibrillation, and “symptoms of recurrent chest pain” as merely “risk factors” for
coronary heart disease, as opposed to the missing diagnosis of coronary heart
disease. The State argues that it was not an abuse of discretion for the district court
to find Dr. Strader’s opinion—that it was “highly likely” that Arthur suffers from
CAD—“borders on being speculative and unreliable.” The State asserts that a
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“likelihood” is not evidence that Arthur actually suffers from an obstructive
coronary heart condition.
We need not resolve the CAD debate because the district court did not abuse
its discretion in concluding Dr. Strader’s time-gap theory was speculative and not
reliable. We will assume that Arthur likely has CAD and examine the next steps in
Dr. Strader’s methodology. Dr. Strader offered the opinion that “[w]hen
midazolam is administered in doses larger than those administered in clinical
practice, including the 500 mg dose directed by the ADOC protocol, it is highly
likely that” the drug will cause a rapid drop in blood pressure and that this drop
will in turn “immediate[ly]” cause a heart attack in Arthur. Dr. Strader’s basis for
his opinion about what will happen upon administration of a 500-mg bolus dose of
midazolam is based solely on his clinical experience with dosages of 2-5 mg of
midazolam that he has used to sedate his own cardiac patients into a deep, but
arousable, sleep for invasive cardiac procedures. Dr. Strader admitted that he had
no experience with a 500-mg dose of midazolam, or any dose larger than 20 mg.
See Glossip, 135 S. Ct. at 2742 (stating that “[t]he effect of a small dose of
midazolam has minimal probative value about the effect of a 500-milligram
dose.”).
In his deposition, Dr. Strader conceded that the medical literature that he
relied upon did not address such large doses of midazolam nor did it expressly
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state that midazolam should not be used on patients with CAD. Indeed, Dr. Strader
admitted that he uses midazolam “in patients with coronary disease all the time in
routine clinical practice.” Dr. Strader testified that he has only observed about 24
patients (some his cardiac patients and some not) who were sedated with
midazolam suffer a heart attack. If compared to the approximately 3,500 invasive
cardiac procedures that Dr. Strader has performed, that works out to less than 1%
of all his cardiac patients.
Nonetheless, we will assume that Arthur likely has CAD and 500 mg of
midazolam will cause Arthur “likely” to have a drop in blood pressure and then
suffer a heart attack. The most critical, but most speculative, part of Dr. Strader’s
opinion is his time-gap theory. According to Dr. Strader’s best guess, a 500-mg
dose of midazolam could cause sedation in three to five minutes, but the heart
attack will occur “immediately” after the drop in blood pressure, which he testified
happens in one to two minutes with small clinical doses of midazolam. Dr.
Strader’s time gap is imprecise and even, under one reading of his own testimony,
it may take two minutes for the blood pressure to drop but the sedation may occur
in three minutes, leaving one minute for the heart attack to start before sedation.
The district court did not abuse its discretion in concluding this time-gap part of
Dr. Strader’s testimony was speculative and unreliable.
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Here, Dr. Strader admitted he had used midazolam only for sedation, an
entirely different goal than what the ADOC uses it for: anesthesia. And sedation,
as Dr. Kaye testified, is different from anesthesia– it is a lighter form of
unconsciousness. Dr. Strader is not an anesthesiologist. While Dr. Strader
testified that he was aware that midazolam was approved for use in “anesthesia,”
and he “thinks some anesthesiologists use it for that purpose,” Dr. Strader did not
have “any direct knowledge of what they do.” The midazolam package insert
corroborates this difference between sedation and anesthesia, noting that while
“sedation” may take 3-5 minutes, use of midazolam as an anesthetic induction
agent can take as little as 2 minutes without narcotic premedication.27 Even Dr.
Strader acknowledges it can take up to two minutes for the blood pressure drop to
occur, with the heart attack beginning thereafter.
Moreover, it is uncontroverted that midazolam’s sedative or anesthetic effect
is dose-dependent, meaning that the effects of midazolam are stronger and occur
more quickly with an increase in the dosage. Dr. Strader could not give an opinion
about how long it would take a person to be rendered unconscious after being
given a 500 mg dose of midazolam because that is “outside [his] realm of
practice.”
27
We recognize that Dr. Buffington stated in his rebuttal declaration that a rapid infusion of
midazolam could result in induction of anesthesia in as little as 30 seconds. We need not rely on
his testimony, however, because Dr. Strader has no expertise in doses of midazolam for
anesthesia or anesthesia at all.
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As to his time gap estimate, Dr. Strader only extrapolated from his clinical
practice of 2-5 mg of midazolam as to the onset of both the sedative and
hemodynamic effects of 500 mg of midazolam. Arthur is correct that, in certain
situations, opinions based on extrapolations from available data are permissible.
Glossip, 135 S. Ct. at 2740, 2741 (explaining that “because a 500-milligram dose is
never administered for a therapeutic purpose, extrapolation was reasonable.”). But
merely because extrapolation may be reasonable in some circumstances, does not
mean that all extrapolated opinions are reliable.
Simply put, Dr. Strader presented only speculative evidence regarding the
first number in his attempt at a time-gap measurement. Indeed, when asked how
long it would take to render a patient unconscious using a 500-mg dose of
midazolam, he was never able to provide an answer, acknowledging that this was
“outside [his] realm of practice.” The problem for Arthur is not that Dr. Strader
engaged in extrapolation, it is that Dr. Strader did not have sufficient information
to extrapolate from. In other words, while an opinion based on extrapolation is
allowed, there must be some basis for that extrapolation. While experts
“commonly extrapolate from existing data . . . nothing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert.” Joiner, 522 U.S. at
146, 118 S. Ct. at 519. Rather, the district court is allowed to “conclude that there
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is simply too great an analytical gap between the data and the opinion proffered.”
Id.
When carefully analyzed, it is apparent that the methodology Dr. Strader
used to reach his opinion regarding the time “gap” between the hemodynamic and
sedative effects of midazolam was not reliable, nor was Dr. Strader qualified to
testify competently as to these matters. See Kilpatrick, 613 F.3d at 1335. Thus,
the district court did not abuse its discretion in ruling that Dr. Strader’s ultimate
opinion that Arthur was likely to suffer a heart attack upon administration of 500-
mg of midazolam before being rendered unconscious was speculative, inadmissible
under Daubert, and insufficient to meet Arthur’s burden.
Without Dr. Strader’s opinion, Arthur had no evidence whatsoever to meet
his burden of demonstrating that, as applied to him, Alabama’s current lethal
injection protocol was “sure or very likely to cause serious illness and needless
suffering, and give rise to sufficiently imminent dangers.” Glossip, 135 S. Ct. at
2737 (emphasis and internal quotation marks omitted). Thus, there was no genuine
dispute of material fact on this “as-applied” claim, and the district court properly
granted summary judgment for the ADOC.
But even if Dr. Strader’s opinion as to the time gap should have been
admitted, it does not change the fact that Arthur has not met his burden to show a
known and available alternative method of execution (for him with his health
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concerns) that “significantly reduce[s]” a substantial risk of severe pain in Arthur.
See id. (internal quotation marks omitted).
XVII. EQUAL PROTECTION CLAIM ABOUT
CONSCIOUSNESS ASSESSMENT
Arthur argues that the district court erroneously applied Eighth Amendment
law from Baze and Glossip to his distinct Fourteenth Amendment Equal Protection
claim. Arthur claims that members of the ADOC’s execution team (1) did not
perform the consciousness assessment properly; and (2) were not medically or
adequately trained on the consciousness assessment, which requires they pinch
inmates with enough force to “gauge anesthetic depth.” Arthur contends that, if
Alabama is to use a consciousness assessment as part of its execution protocol, the
assessment should be performed adequately.
At trial, the parties presented conflicting evidence as to whether the ADOC
execution team had adequately performed the consciousness assessment at past
executions. The district court made a factual finding that the testimony from
ADOC’s witnesses were to be afforded more weight and, accordingly, it found that
the assessment had been adequately performed “in every instance” based on ample
evidence. The district court’s findings were not clearly erroneous.28
28
To the extent that Arthur argues that the ADOC employees disagreed on how the results of a
consciousness check should have been communicated to the warden, the point is immaterial
because the ADOC-employee witnesses testified that an inmate never gave a reaction after the
consciousness assessment was performed.
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Relying on language from Baze and Glossip, the district court also
determined that the Eighth Amendment does not require that “sophisticated”
medical training and standards be employed in a consciousness assessment during
an execution. Summing up, the district court wrote that:
Arthur’s attempt to apply a medical standard of care to execution
procedures and training for them, in this case, procedures that are not
required by the Eighth Amendment, does not state a plausible equal
protection claim. This principle is applicable to Arthur’s Equal
Protection claim challenging the “adequacy” of the consciousness
assessment and the training therefor, including the force used in the
pinch test.
The district court did not err in rejecting the training portion of Arthur’s
Equal Protection claim. Arthur’s arguments ignore the district court’s explicit
factual finding that “the consciousness assessment has been adequately performed
in every instance in which it was required, [and] no deficiency in training, practice,
or procedure is found,” which led to the court’s conclusion of law that the ADOC
had not “otherwise deviated substantially from its execution protocol.” (Emphasis
added).
Moreover, we discern no error in the district court’s application of Baze and
Glossip to Arthur’s Equal Protection claim. As we previously explained in our
2012 opinion, the crux of Arthur’s Equal Protection claim was whether “Alabama
has substantially deviated from its execution protocol in a manner that significantly
reduces inmate safeguards” and whether this “reduction in safeguards burdens his
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right to be free from cruel and unusual punishment.” Arthur, 674 F.3d at 1263.
The district court’s conclusions regarding whether Alabama had substantially
deviated from its execution protocol thus implicates Arthur’s right to be free from
cruel and unusual punishment. As to this issue, the Equal Protection question
necessarily intertwines with Eighth Amendment principles.
To satisfy Arthur, all ADOC execution team members must pinch inmates
with approximately identical force and pinch as hard as they can because this is the
standard used in a medical setting. But this is not what the Constitution requires.
In Baze, the petitioners faulted Kentucky’s protocol for lacking a system to
monitor the prisoner’s anesthetic depth. 553 U.S. at 58-59, 128 S. Ct. at 1536.
Although Kentucky had other safeguards in place, including “visual inspection” by
the warden and deputy warden of whether the inmate was unconscious, the
petitioners requested that “qualified personnel . . . employ monitoring equipment,
such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify
that a prisoner has achieved sufficient unconsciousness before injecting the final
two drugs.” Id. at 59, 128 S. Ct. at 1536. The petitioners claimed that visual
inspection by the warden and deputy warden “is an inadequate substitute for the
more sophisticated procedures they envision.” Id. The Supreme Court rejected the
petitioners’ argument, writing that “these supplementary procedures, drawn from a
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different context, are [not] necessary to avoid a substantial risk of suffering.” Id. at
60, 128 S. Ct. at 1536.
And in Glossip, the Supreme Court pointed to its conclusion in Baze that
“although the medical standard of care might require the use of a blood pressure
cuff and an [EKG] during surgeries, this does not mean those procedures are
required for an execution to pass Eighth Amendment scrutiny.” 135 S. Ct. at 2742.
Thus, the Glossip Court concluded, “the fact that a low dose of midazolam is not
the best drug for maintaining unconsciousness during surgery says little about
whether a 500-milligram dose of midazolam is constitutionally adequate for
purposes of conducting an execution.” Id.
We leave for another day the question of whether an additional safeguard
such as Alabama’s consciousness assessment is constitutionally required under the
Eighth Amendment. It is enough that the district court found that Alabama does
conduct the consciousness assessment as part of its lethal injection protocol, and
the Supreme Court has made clear that the safeguards implemented during an
execution need not match a medical standard of care. See Baze, 553 U.S. at 58-60,
128 S. Ct. at 1536; Glossip, 135 S. Ct. at 2742. Thus, whether the execution team
at Holman pinches inmates with the same level of force used during medical
practice is not dispositive of this claim. In other words, because a medical-grade
pinch is not required under the Constitution, there can be no Equal Protection
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claim that such a medical-grade pinch is not uniformly performed. Thus, the
district court’s rejection of Arthur’s Equal Protection claim is due to be affirmed.
XVIII. FIRING SQUAD CLAIM
Arthur argues that the district court improperly denied him leave to amend
his Second Amended Complaint to plead the firing squad as an alternative method
of execution. Arthur made this request in August 2015, four years after he filed
this third § 1983 action back in 2011 and 13 years after Alabama adopted lethal
injection as its method of execution.
The district court’s operative order did not expressly state that its denial was
based either on futility (as Arthur claims) or on prejudice and undue delay (as the
State contends), although it listed all of these as reasons that it could deny leave to
amend under the law. Instead, the district court concluded that “execution by
firing squad is not permitted by [Alabama] statute and, therefore, is not a method
of execution that could be considered either feasible or readily implemented by
Alabama at this time.” Even under a de novo standard of review, 29 we affirm the
district court’s denial of leave to amend, but on multiple grounds, including
29
The parties dispute whether we should review Arthur’s firing-squad claim de novo or merely
for an abuse of discretion. We generally review the denial of a motion for leave to amend a
complaint for abuse of discretion. McKinley v. Kaplan, 177 F.3d 1253, 1255 (11th Cir. 1999).
But a district court’s decision to deny leave to amend based on futility is a legal conclusion, and
we review such decisions de novo. Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1236 (11th
Cir. 2008). We need not resolve this standard-of-review issue because Arthur’s firing-squad
arguments on appeal lack merit under even de novo review.
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futility, as Arthur never showed Alabama’s current lethal injection protocol, per se
or as applied to him, violates the Constitution.
Again, under controlling Supreme Court precedent, Arthur had the burden to
plead and prove both that (1) Alabama’s current three-drug protocol is “sure or
very likely to cause serious illness and needless suffering, and give rise to
sufficiently imminent dangers”; and (2) there is an alternative method of execution
that is feasible, readily implemented, and in fact significantly reduces the
substantial risk of pain posed by the state’s planned method of execution. Glossip,
135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 50, 128 S. Ct. at 1520) (internal
quotation marks and emphasis omitted). Arthur has not satisfied either prong.
Because Arthur did not satisfy the first prong as to midazolam, that means
his firing-squad claim fails in any event. Indeed, as outlined in great detail above,
Arthur has not carried his heavy burden to show that Alabama’s current three-drug
protocol—which is the same as the protocol in Glossip—is “sure or very likely to
cause” Arthur serious illness, needless suffering, or a substantial risk of serious
harm. See id. at 2737 (internal quotation marks and emphasis omitted). The
district court stayed Arthur’s execution and then waited for Glossip to be decided.
Both the Supreme Court and this Court have upheld the midazolam-based
execution protocol that Arthur challenges here. See Glossip, 135 S. Ct. at 2739-40;
Brooks, 810 F.3d at 818-19; Chavez, 742 F.3d at 1269, 1273. And even as applied
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to Arthur individually, Arthur did not present any admissible evidence or carry his
burden to show that his execution under Alabama’s lethal injection protocol would
cause him to suffer a substantial risk of serious harm.
As an alternative and independent ground, even if Arthur had proved
midazolam may likely cause him harm, which he has not done, Arthur’s proposed
amendment failed to show that execution by firing squad is a feasible, readily
implemented, and significantly safer alternative method of execution when
compared to Alabama’s planned lethal-injection method of execution that has been
repeatedly approved by the courts and successfully carried out in the past. See
Glossip, 135 S. Ct. at 2734, 2740-46.
Alabama’s execution statute is Ala. Code § 15-18-82.1. By way of review,
that statute allows all persons sentenced to death to choose between two methods
of execution, providing that death sentences “shall be executed by lethal injection,
unless the person sentenced to death affirmatively elects to be executed by
electrocution.” Ala. Code § 15-18-82.1(a) (emphasis added). Only if
“electrocution or lethal injection is held to be unconstitutional by the Alabama
Supreme Court . . . [or] the United States Supreme Court . . . , or if the United
States Supreme Court declines to review any judgment holding a method of
execution to be unconstitutional . . . made by the Alabama Supreme Court or the
United States Court of Appeals that has jurisdiction over Alabama” can the ADOC
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carry out Arthur’s execution by “any constitutional method of execution.” Id.
§ 15-18-82.1(c). And, finally, “[i]n any case in which an execution method is
declared unconstitutional, the death sentence shall remain in force until the
sentence can be lawfully executed by any valid method of execution.” Id. § 15-18-
82.1(h).
Arthur’s main argument has three parts: (1) that under the Alabama statute,
Alabama can execute him by “any constitutional method of execution,” (2) that a
firing squad is still today a constitutionally valid method of execution, and (3) that
Alabama cannot prevent him from electing to have a firing squad as his preferred
constitutional method. This claim misreads the text of the Alabama statute and
Supreme Court case law and fails for multiple reasons.
First, it is undisputed that a firing squad is not a currently valid or lawful
method of execution in Alabama. Therefore, an Alabama state trial court would be
without any authority to order Arthur to be executed by firing squad, just as the
ADOC would be without authority to execute Arthur by that method, without the
Alabama legislature fundamentally rewriting the state’s method-of-execution
statute or one of the courts named in the statute already striking down as
unconstitutional either electrocution or lethal injection. But neither electrocution
nor lethal injection has been declared unconstitutional by this Court, the Alabama
Supreme Court, or the United States Supreme Court.
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In this § 1983 suit, Arthur brings a narrow challenge to two aspects of
Alabama’s lethal injection protocol (midazolam and the consciousness assessment)
and does not argue or even suggest that lethal injection is per se unconstitutional –
in fact, the main premise of his attack on the midazolam protocol is that it is more
painful than the prior Alabama protocol using pentobarbital. Also, Arthur does not
challenge the constitutionality of death by electrocution, or allege any facts
establishing that electrocution involves a substantial risk of severe pain.30 No court
has held that lethal injection (or electrocution) as applied to Arthur in this case
violates the Constitution. Therefore, the ADOC would not be able to carry out
Arthur’s preferred death sentence without the Alabama legislature fundamentally
rewriting its method-of-execution statute.
Arthur argues, nevertheless, that Glossip does not “require” that alternative
methods of execution be statutorily authorized. In his proposed allegations,
Arthur points to the fact that another state, Utah, has conducted three executions by
firing squad since 1976, the most recent taking place in 2010. Arthur implies that,
since the Utah legislature has approved death by firing squad, the Alabama
30
The dissent admits that Arthur did not opt for death by electrocution because he did not opt for
it under the statute during the allotted time frame. See Ala. Code § 15-18-82.1(b) (“The election
for death by electrocution is waived unless it is personally made by the person in writing and
delivered to the warden of the correctional facility within 30 days after the certificate of
judgment pursuant to a decision by the Alabama Supreme Court affirming the sentence of death .
. . .”). But neither has Arthur claimed that execution by electrocution is unconstitutional, nor that
the 30-day limit makes it unconstitutional. Thus, for purposes of the constitutional inquiry
Arthur has raised, we cannot say that electrocution would not be a “feasible and readily
implemented” alternative to lethal injection.
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legislature could easily do the same. But Arthur misunderstands the state’s
obligation under the Eighth Amendment. States that continue to have capital
punishment are free to choose any method of execution they deem appropriate, so
long as they conform to the requirements of the United States Constitution, and
more particularly, to the constraints found in the Eighth Amendment. This
recognition—that states are constrained by the United States Constitution—is
wholly consonant with the plain language of the Supremacy Clause. See U.S.
Const. art. VI, cl. 2 (“[The Constitution] shall be the supreme Law of the Land . . .
Laws of any State to the Contrary notwithstanding.”). Alabama has chosen death
by lethal injection or electrocution; the petitioner is not free to simply disregard
those methods (and substitute his own) without satisfactorily establishing that
those methods violate the constitutional command barring cruel and unusual
punishment. To be clear, states remain subject to the Constitution, and the
Constitution requires states to select a constitutional method of execution. But the
state is not required to use Arthur’s chosen method (the firing squad) unless Arthur
shows the methods the state selected are unconstitutional.
We do recognize that, in contrast to Alabama, Utah has a state statute that,
while it prescribes lethal injection as the primary method of execution, allows the
state to use a firing squad if (1) “a court holds that a defendant has a right to be
executed by a firing squad,” (2) “a court holds that execution by lethal injection is
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unconstitutional on its face” or “as applied,” or (3) “the sentencing court
determines the state is unable to lawfully obtain the substance or substances
necessary to conduct an execution by lethal intravenous injection.” Utah Code
Crim. Proc. § 77-18-5.5(1)-(4). Similarly, Oklahoma law provides for firing squad
as the quaternary option for carrying out an execution, making it available only
after execution by lethal injection, nitrogen hypoxia, and electrocution are all
declared unconstitutional. See Okla. Stat. tit. 22, § 1014 (2016).
Utah and Oklahoma are the only states that have statutes contemplating
execution by firing squad, and lethal injection is still the primary method of
execution in both of those states, as it is in every state that allows for capital
punishment. Thus, to the extent that Arthur relies on dicta from Glossip31
concerning “other acceptable, available methods,” Oklahoma law expressly
allowed both the firing squad and electrocution. Okla. Stat. tit. 22, § 1014
31
While the dissent claims that the firing squad is a “valid” alternative, the Supreme Court
majority in Glossip did not opine about whether a firing squad remains a constitutional
alternative to lethal injection, as that was not the issue before the Court in Glossip. The Glossip
majority noted only that, back in 1879, the Supreme Court upheld a sentence of death by firing
squad, citing Wilkerson v. Utah, 99 U.S. 130 (1879). Glossip, 135 S. Ct. at 2732. The principal
dissent in Glossip “goes out of its way to suggest that a State would violate the Eighth
Amendment if it used one of the methods of execution employed before the advent of lethal
injection.” Id. at 2739. But, as the majority in Glossip pointed out, if States cannot use one of
the “more primitive” methods used in the past and also cannot use certain drugs to carry out an
execution by lethal injection, “the logical conclusion is clear. But we have time and again
reaffirmed that capital punishment is not per se unconstitutional.” Id. Here, we need not reach
any issue about the constitutionality of a firing squad.
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(2015).32 As we noted in Brooks, a prisoner must identify an alternative that is
“known and available” to the state in question to meet the requirements in Baze
and Glossip. 810 F.3d at 820 (explaining that petitioners must show that “there is
now a source for pentobarbital that would sell it to the ADOC for use in
executions” (emphases added)).
Arthur argues, nevertheless, that a state could “legislatively exempt” itself
from Eighth Amendment review simply by adopting a narrow method of execution
without any prescribed alternatives, thereby preventing challengers from
identifying a statutorily authorized alternative method. But the Alabama
legislature has authorized two methods of execution—lethal injection in any form
and electrocution—and neither of its authorized methods has been deemed
unconstitutional by a court, either per se or even as applied to Arthur. See Ala.
Code. § 15-18-82.1(a), (c), (h). Arthur is not entitled to veto the Alabama
legislature’s constitutional choice as to how Alabama inmates will be executed
because there may still be other statutorily authorized (and unchallenged) methods
available. As for the dissent’s argument that the state’s legislative choices should
not affect whether an alternative could be feasible and readily implemented, the
dissent refuses to acknowledge that the Alabama statute is not simply the result of
the state’s “will,” but it is also very much constrained by the United States
32
Oklahoma later added nitrogen hypoxia as another authorized form of execution. Okla. Stat.
tit. 22, § 1014 (2016).
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Constitution. Absent a showing that Alabama’s chosen methods of execution
present an unconstitutional risk of severe pain, Alabama is under no obligation to
deviate from its widely accepted, presumptively constitutional methods in favor of
Arthur’s retrogressive alternative.
Moreover, the Supreme Court has recognized that requiring a state to amend
its method-of-execution statute or to authorize a variance from that statute
“impos[es] significant costs on the State and the administration of its penal
system.” See Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct. 2117, 2123
(2004). That is particularly true where, as here, the necessary legislation would
retreat from a method of execution that is employed by the overwhelming majority
of states that still authorize the death penalty and is widely considered the “most
humane available,” and would replace it with a method of execution that has long
been abandoned by almost every state in this country. 33 See Baze, 553 U.S. at 62,
128 S. Ct. at 1537. As the Supreme Court has recognized, “[t]he firing squad,
hanging, the electric chair, and the gas chamber have each in turn given way to
more humane methods [of execution], culminating in today’s consensus on lethal
injection.” Id. at 62, 128 S. Ct. at 1538; see also id. at 42, 128 S. Ct. at 1526-27
(“A total of 36 States have now adopted lethal injection as the exclusive or primary
means of implementing the death penalty, making it by far the most prevalent
33
This wide adoption of lethal injection also serves to undermine Arthur’s argument that the
district court’s holding “will result in state-by-state variation in federal constitutional rights.”
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method of execution in the United States.”). The dissent’s suggestion that our
decision nullifies Arthur’s right to a “humane execution” by preventing his access
to execution by firing squad is peculiar, and, moreover, flatly contradicted by the
Supreme Court.
In considering whether Arthur’s proposed alternative is “feasible” and
“readily implemented,” it is also important to note that the firing squad is a vastly
different method of execution from electrocution and lethal injection, which are the
only methods of execution that Alabama has employed in the past ninety years. As
far as we can tell, Alabama has never carried out an execution by firing squad or
statutorily recognized it as a method for carrying out executions. Indeed, Arthur
does not say that any ADOC employee would have the first idea about how to
carry out an execution by this method, and, undeniably, doing so would require a
lot more than merely buying some new supplies for the ADOC to begin carrying
out executions by this new method. The firing squad has not been used even in
Utah since 2010. This sits in stark contrast to the numerous executions by lethal
injection that were carried out across the country during the past decade or so. The
fact that a few other states could theoretically carry out an execution by firing
squad without violating their own laws tells us nothing about whether that method
is, in fact, readily implementable for use in actual executions in Alabama today.
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As we see it, our dissenting colleague errs in claiming that our opinion
contravenes Baze and Glossip. Our dissenting colleague writes that, under our
analysis, “if a state legislatively rejects an alternative, the alternative is not feasible
and readily implemented. . . . State opposition . . . has no bearing on the ‘feasible
and readily implemented’ inquiry as set forth in Baze and Glossip.” This is not at
all what we have said. What we say is (1) Alabama has chosen two constitutional
methods of execution, (2) Arthur has not shown that they are, or that either one is,
unconstitutional (per se or as applied to him), and (3) Arthur is not entitled to veto
the Alabama legislature’s choice of two constitutional methods of execution.
Furthermore, by requiring Arthur to show a feasible, readily implementable, and
significantly safer alternative, we are abiding by the rules set forth in the Supreme
Court’s Baze and Glossip opinions, and also giving credence to Alabama’s
prerogative to choose any constitutional method of execution it deems appropriate.
It is true that neither Baze nor Glossip held that an execution alternative must be
statutorily authorized as that, of course, was not the issue. But those opinions did
not direct that we ignore constitutional state laws in employing constitutional
methods of execution.
We are also unpersuaded by the concerns forwarded by Arthur and the
dissent that giving this deference to states will effectively cut off inmates’ ability to
advocate for more humane alternative methods of execution, as contemplated by
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Baze and Glossip. We see no merit to the dissent’s hypothesis that a state could,
for example, offer the gas chamber as its method of execution. It seems clear that
if a state’s sole method of execution is deemed unconstitutional, while other
methods remain constitutional (even if they are not authorized by the state statute),
our inquiry into whether those other options are feasible and readily implemented
would be a different one. Among other things, Alabama’s statute plainly allows
for other options if its statutory methods are declared unconstitutional, making
those other options more feasible and readily implementable. But that is not the
case here. Alabama’s two methods of execution have not been declared
unconstitutional, nor has Arthur even argued that they are.
Furthermore, our dissenting colleague is concerned that our opinion will
foreclose all but lethal-injection-alternative challenges and that inmates can never
win such suits due to the secrecy surrounding executions and states’ admitted
challenges in locating sources for the drugs. These practical constraints do not rob
the State of Alabama, or any other state, of its right to choose the method of
execution it wishes to use, so long as the state complies with the requirements of
the United States Constitution. These constraints should also be weighed against
the practical problems of instituting an untested (in Alabama) protocol for
execution by firing squad. While Arthur points to Utah as an exemplar, the reality
is that formulating a new protocol and locating the people and resources necessary
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to carry out such an alternative (even if feasible, readily implementable, and
significantly safer), would take considerable time and would, inevitably, lead to an
entire new round of legal challenges regarding the details of the protocols for
constitutionally conducting an execution by firing squad. Arthur’s own nine-year
history of § 1983 litigation well proves that point.34
Arthur’s strategy here to avoid execution is to claim that the ADOC should
employ a profoundly different method of execution that is not legal in Alabama
and has long been abandoned by states seeking to employ the “most humane”
method of execution available, lethal injection. See Baze, 553 U.S. at 62, 128 S.
Ct. at 1537. Arthur’s strategic choice left him with a steep hill to climb, requiring
him to show that this method of execution that is beyond the ADOC’s statutory
authority somehow could be feasible and readily implemented by the ADOC. He
failed to surmount that obstacle.
For these reasons, the firing squad is not an alternative method of execution
that is available, feasible, or readily implemented by the ADOC and, thus, the
district court did not err in disallowing this third amendment to Arthur’s complaint.
34
The dissent isolates Arthur’s firing-squad claim (first made in 2015) from the rest of his
§ 1983 case and complains that Arthur has not had any chance for discovery or a trial on that
claim. But this argument wholly ignores that Arthur’s complaint challenging Alabama’s three-
drug lethal injection protocol was filed in 2011, and Alabama changed the first drug to
midazolam back in 2014. Thus, Arthur has had literally years of discovery and even a 2016
evidentiary hearing to demonstrate that the midazolam drug protocol is, either per se or as
applied, unconstitutional. But Arthur has never sustained his heavy burden. Arthur’s firing-
squad claim fails under both prongs of Glossip.
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And furthermore, absent a showing that the methods chosen by the Alabama
legislature pose an unconstitutional risk of pain, either per se or as applied to
Arthur, the Constitution does not compel Alabama to search for a new method.
Accordingly, we find that amending Arthur’s Second Amended Complaint to add
the firing squad as an alternative method of execution would have been futile, and
affirm the district court’s denial of leave to amend. 35
XIX. CONCLUSION
The district court did not err in entering final judgment in favor of the
ADOC and against Arthur on all claims. Accordingly, we affirm.
Given that this Court has determined Arthur’s appeal lacks merit, the Court
denies Arthur’s motion to stay his November 3, 2016 execution for failure to show
a likelihood of success on the merits of his claims. “It is by now hornbook law that
a court may grant a stay of execution only if the moving party establishes that:
35
As an alternative and independent ground, we also conclude Arthur’s firing-squad claim is
barred by laches. See Williams v. Allen, 496 F.3d 1210 (11th Cir. 2007) (upholding dismissal of
§ 1983 method-of-execution action based on unreasonable delay); Jones v. Allen, 485 F.3d 635
(11th Cir. 2007) (denying a stay). The Supreme Court made clear in 2008—three years before
Arthur filed this § 1983 case in 2011—that a petitioner-inmate had the burden to show that a
proffered alternative was “feasible, readily implemented, and in fact significantly reduce[d] a
substantial risk of severe pain,” such that the state’s failure to adopt that alternative constituted
cruel and unusual punishment under the Eighth Amendment. Baze, 553 U.S. at 41, 52, 128 S.
Ct. at 1526, 1532. Despite this language, Arthur nevertheless waited until August 2015 before
seeking to add this firing-squad alternative method to his § 1983 complaint. Such dilatory filing
“leaves little doubt that the real purpose behind his claim is to seek a delay of his execution, not
merely to effect an alteration of the manner in which it is carried out.” Jones, 485 F.3d at 640.
In light of this delay, there was no error in the district court’s denying Arthur leave to amend to
add his firing-squad claim in August 2015.
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(1) he has a substantial likelihood of success on the merits; (2) he will suffer
irreparable injury unless the injunction issues; (3) the stay would not substantially
harm the other litigant; and (4) if issued, the injunction would not be adverse to the
public interest.” Brooks, 810 F.3d at 818 (citation omitted) (internal quotation
marks omitted). Because Arthur has not satisfied the first requirement for a stay,
we need not reach the other three requirements.
AFFIRMED.
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WILSON, Circuit Judge, dissenting:
Under the Majority’s decision, state law can dictate the scope of the
Constitution’s protections. Thomas Arthur raises a method-of-execution claim
proposing the firing squad as an execution alternative, and the Majority finds that
state law defeats this constitutional claim. By misreading an Alabama statute, the
Majority creates a conflict between the claim and state law. The Majority then
resolves that faux conflict in favor of state law, taking the unprecedented step of
ascribing to states the power to legislatively foreclose constitutional relief. These
missteps nullify countless prisoners’ Eighth Amendment right to a humane
execution.
I. INTRODUCTION
The Eighth Amendment guarantees a death row prisoner the right to relief
when he faces a method of execution that is “sure or very likely to cause serious
illness and needless suffering” and there is a “feasible” and “readily implemented”
alternative that “significantly reduce[s] a substantial risk of severe pain.” Baze v.
Rees, 553 U.S. 35, 50–52, 128 S. Ct. 1520, 1531–32 (2008) (plurality opinion)
(internal quotation marks omitted); Glossip v. Gross, 576 U.S. ___, ___, 135 S. Ct.
2726, 2737 (2015). Arthur seeks to vindicate this right. He asserts that Alabama’s
current three-drug lethal injection protocol is sure or very likely to cause him
severe pain, and he seeks to amend his complaint to propose the firing squad as an
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execution alternative.1 The firing squad is a well-known, straightforward
procedure that is regarded as “relatively quick and painless.”2 See Glossip,
135 S. Ct. at 2739 (internal quotation marks omitted), Baze, 553 U.S. at 48,
128 S. Ct. at 1530. And one state has recently used the firing squad to execute a
prisoner. See Kirk Johnson, Double Murderer Executed by Firing Squad in Utah,
N.Y. Times (June 18, 2010), www.nytimes.com/2010/06/19/us/19death.html?_r=0.
Arthur should be permitted to amend his complaint to include the firing
squad as an execution alternative to Alabama’s lethal injection protocol. The firing
squad is a potentially viable alternative, and Arthur may be entitled to relief under
Baze and Glossip based on that method of execution.
Arthur requested to amend his complaint shortly after the Supreme Court
confirmed in Glossip that prisoners must plead and prove an execution alternative
to obtain method-of-execution relief.3 The district court denied Arthur’s request
1
Arthur’s proposed allegations about the firing squad are attached as an appendix.
2
In recent years, several scholars have advocated for wider use of the firing squad.
See Deborah W. Denno, The Firing Squad As “A Known and Available Alternative Method of
Execution” Post-Glossip, 49 U. Mich. J. L. Reform 749 (2016); P. Thomas Distanislao, III,
Note, A Shot in the Dark: Why Virginia Should Adopt the Firing Squad As Its Primary Method of
Execution, 49 U. Rich. L. Rev. 779 (2015); Alexander Vey, Note, No Clean Hands in a Dirty
Business: Firing Squads and the Euphemism of “Evolving Standards of Decency”, 69 Vand. L.
Rev. 545 (2016). One such scholar concluded that “the firing squad is the most viable ‘known
and available [execution] alternative’ . . . . Indeed, [it] is the only current form of execution
involving trained professionals, and it delivers a swift and certain death.” Denno, 49 U. Mich. J.
L. Reform at 753 (quoting Glossip, 135 S. Ct. at 2731).
3
Given that Arthur requested to amend his complaint immediately after the Supreme
Court’s decision in Glossip, the Majority’s conclusion that the request is barred by laches is
unavailing. Indeed, in a similar case, the same district court judge who presided over Arthur’s
proceedings rejected the Majority’s position. In Boyd v. Myers, the prisoner—a few weeks after
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on futility grounds, finding that the “firing squad is not permitted by [an Alabama]
statute and, therefore, is not a method of execution that could be considered either
feasible or readily implemented by Alabama at this time.”
The Majority now affirms that finding. The Majority determines that the
firing squad is not feasible and readily implemented because § 15-18-82.1 of the
Alabama Code does not authorize the firing squad. Thus, according to the
Majority, a state can restrict a prisoner’s access to Eighth Amendment relief by
legislatively rejecting a viable execution alternative.
The Majority’s analysis of Arthur’s request to amend his complaint is legally
flawed and has unacceptable consequences for death row prisoners throughout this
circuit.4 First, the Majority misreads § 15-18-82.1; that statute is not a barrier to
the Glossip decision—sought to amend his complaint to include the firing squad, and the State
argued that the request was untimely. See No. 2:14-cv-1017-WKW, slip op. at 6–7 (M.D. Ala.
Oct. 7, 2015). The district court judge concluded that, because “Glossip clarified” the “execution
alternative” requirement and the prisoner made his request shortly after Glossip, the request was
timely. See id. at 6, 10.
4
As an initial matter, the Majority appears to confuse the posture of Arthur’s firing-squad
claim. Arthur has only moved to add to his complaint the firing-squad claim. He has not been
provided an opportunity to proceed to discovery, summary judgment, or trial on the claim.
Evidence and proof therefore have no relevance in the discussion of whether the district court
erred in denying Arthur relief on this issue. However, in arguing the futility of Arthur’s request,
the Majority emphasizes Arthur’s failure to “present any admissible evidence”—a feat that
Arthur is expected to accomplish in the absence of the amended pleading and corresponding
discovery.
Although a district court has discretion in whether to grant a request to amend the
complaint, the court in denying the request must articulate a valid reason for the denial. See 3-15
Moore’s Federal Practice § 15.15 (Matthew Bender 3d ed.) (“[A] trial court must provide a
reason for denying a motion to amend.”); Fed. R. Civ. P. 15(a)(2) (“The court should freely give
leave [to amend a pleading] when justice so requires.”). The Majority claims that the district
court could have listed several reasons for its denial here, but the court offered only one reason:
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Arthur relying on the firing squad. The plain language of § 15-18-82.1 permits
Alabama to turn to the firing squad under the circumstances presented here.
Section 15-18-82.1 states, in relevant part:
(c) If electrocution or lethal injection is held to be
unconstitutional by . . . the United States Supreme
Court under the United States Constitution, or if the
United States Supreme Court declines to review any
judgment holding a method of execution to be
unconstitutional under the United States Constitution
made by . . . the United States Court of Appeals that
has jurisdiction over Alabama, all persons sentenced
to death for a capital crime shall be executed by any
constitutional method of execution.
....
(h) No sentence of death shall be reduced as a result of a
determination that a method of execution is declared
unconstitutional under the Constitution of Alabama of
1901, or the Constitution of the United States. In any
case in which an execution method is declared
unconstitutional, the death sentence shall remain in
force until the sentence can be lawfully executed by
any valid method of execution.
Ala. Code § 15-18-82.1 (2002). The Majority concludes that Alabama cannot
deviate from a prisoner’s designated method of execution unless electrocution or
futility due to an Alabama statute. We review a finding of futility de novo. Mizzaro v. Home
Depot, Inc., 544 F.3d 1230, 1236 (11th Cir. 2008). And this dissent argues that under de novo
review, the Majority’s finding of futility based on Alabama law is erroneous.
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lethal injection is declared per se unconstitutional. 5 Because no court has declared
electrocution or lethal injection per se unconstitutional, the Majority holds that
§ 15-18-82.1 forbids the firing squad.
This interpretation of § 15-18-82.1 does not pass muster. Subsection (h)
allows Alabama to turn to the firing squad—a “valid method of execution”—in
“case[s]” where our court declares Alabama’s planned “execution method” for a
prisoner unconstitutional. See § 15-18-82.1(h). Alabama’s planned “execution
method” for Arthur is Alabama’s three-drug lethal injection protocol, and Arthur
claims that the protocol is unconstitutional. See id. If our court agreed with him,
then subsection (h) would allow Alabama to utilize the firing squad to enforce
Arthur’s death sentence. Because this case could implicate subsection (h) and
open the door to the firing squad, § 15-18-82.1 is not a barrier to Arthur relying on
the firing squad. Arthur’s firing-squad claim thus conflicts only with the
Majority’s flawed interpretation of Alabama law, not Alabama law itself.
Second, even if § 15-18-82.1 did not permit the firing squad here, the
Majority’s conclusion that the statute precludes Arthur from relying on the firing
squad would still be erroneous. The Majority contravenes Baze and Glossip, as
well as the Supremacy Clause, in relying on a state statute to limit Arthur’s access
5
The Majority however muddies this finding, as it also appears to reach a contradictory
conclusion: that Alabama cannot turn to a non-designated method of execution unless a prisoner
attacks both electrocution and lethal injection.
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to Eighth Amendment relief. Under Baze and Glossip, a state cannot make an
execution alternative not feasible and readily implemented by legislatively
rejecting the alternative. A state’s rejection of an execution alternative is irrelevant
to the “feasible and readily implemented” inquiry. Moreover, in holding that a
state can dictate that inquiry and foreclose an execution alternative, the Majority
infringes the Supremacy Clause. The Majority’s holding affords states the power
to thwart viable method-of-execution claims. That is unprecedented. States cannot
render an execution alternative not feasible and readily implemented—and thereby
insulate themselves from constitutional scrutiny—by opposing the alternative
through legislation or any other means. The Supremacy Clause precludes that type
of state incursion on the Eighth Amendment.
Finally, the practical consequences of the Majority’s mistakes are deeply
troubling. The Majority’s decision nullifies countless prisoners’ right to a humane
execution. Based on the Majority’s approach to § 15-18-82.1, Alabama prisoners
such as Arthur must rely on lethal-injection-based execution alternatives 6 to obtain
method-of-execution relief. A myriad of Florida prisoners are likewise limited to
lethal-injection-based alternatives because Florida has a statute that is identical to
§ 15-18-82.1, compare Ala. Code § 15-18-82.1, with Fla. Stat. § 922.105 (2005).
6
Lethal injection is not a unitary form of execution; it is a category of execution that can
be carried out using a variety of methods. I use the term “lethal-injection-based execution
alternative” to refer to an execution method that falls within that category.
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However, due to the scarcity of and secrecy surrounding lethal injection drugs,
identifying an available lethal-injection-based alternative is a Sisyphean task.
Consequently, relief under Baze and Glossip is now a mirage for prisoners across
Alabama and Florida.
II. THE PLAIN LANGUAGE OF
§ 15-18-82.1 PERMITS THE FIRING SQUAD.
Arthur’s request to die by the firing squad is not at odds with Alabama law.
The plain language of § 15-18-82.1 permits Alabama to turn to the firing squad
under the circumstances presented here. The Majority erroneously concludes that
the statute bars Alabama from using the firing squad to execute Arthur. The
Majority’s misreading of the statute not only creates a faux conflict with Arthur’s
firing-squad claim but also impairs Alabama’s ability to enforce the death penalty.
Section 15-18-82.1 states:
(a) A death sentence shall be executed by lethal injection,
unless the person sentenced to death affirmatively
elects to be executed by electrocution.
(b) A person convicted and sentenced to death for a
capital crime at any time shall have one opportunity to
elect that his or her death sentence be executed by
electrocution. The election for death by electrocution
is waived unless it is personally made by the person in
writing and delivered to the warden of the correctional
facility within 30 days after the certificate of
judgment pursuant to a decision by the Alabama
Supreme Court affirming the sentence of death or, if a
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certificate of judgment is issued before July 1, 2002,
the election must be made and delivered to the warden
within 30 days after July 1, 2002.
(c) If electrocution or lethal injection is held to be
unconstitutional by the Alabama Supreme Court
under the Constitution of Alabama of 1901, or held to
be unconstitutional by the United States Supreme
Court under the United States Constitution, or if the
United States Supreme Court declines to review any
judgment holding a method of execution to be
unconstitutional under the United States Constitution
made by the Alabama Supreme Court or the United
States Court of Appeals that has jurisdiction over
Alabama, all persons sentenced to death for a capital
crime shall be executed by any constitutional method
of execution.
....
(f) Notwithstanding any law to the contrary, a person
authorized by state law to prescribe medication and
designated by the Department of Corrections may
prescribe the drug or drugs necessary to compound a
lethal injection. Notwithstanding any law to the
contrary, a person authorized by state law to prepare,
compound, or dispense medication and designated by
the Department of Corrections may prepare,
compound, or dispense a lethal injection.
....
(h) No sentence of death shall be reduced as a result of a
determination that a method of execution is declared
unconstitutional under the Constitution of Alabama of
1901, or the Constitution of the United States. In any
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case in which an execution method is declared
unconstitutional, the death sentence shall remain in
force until the sentence can be lawfully executed by
any valid method of execution.
Ala. Code § 15-18-82.1. Alabama enacted this section in 2002 when it first
changed its default method of execution from electrocution to lethal injection. In
doing so, Alabama shrewdly expected challenges to the constitutionality of lethal
injection and its administration of lethal injection. Section 15-18-82.1 not only
prescribes lethal injection as the default method of execution but also establishes
contingency plans in the event that: (1) lethal injection is declared per se
unconstitutional or (2) Alabama’s lethal injection protocol is declared
unconstitutional.
Subsections (a) and (b) of § 15-18-82.1 designate lethal injection as
Alabama’s primary method of execution, while affording prisoners a one-time
opportunity to choose electrocution as their designated method in lieu of lethal
injection. And subsections (c) and (h) afford Alabama the flexibility to deviate
from a prisoner’s designated method of execution and specific execution protocol
if either is declared unconstitutional. Those subsections serve as complementary
safety valves, ensuring that Alabama can fulfill its goal of carrying out executions.
Subsection (c) guarantees Alabama flexibility by providing that Alabama can
utilize “any constitutional method of execution” if lethal injection or electrocution
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is struck down as per se unconstitutional. § 15-18-82.1(c). Subsection (h)
complements subsection (c), as it protects Alabama’s ability to carry out an
execution when a prisoner successfully attacks the specific lethal-injection or
electrocution protocol that Alabama plans to use to kill him. That subsection states
that Alabama can turn to “any valid method of execution” in “any case” in which
its planned “execution method is declared unconstitutional.” § 15-18-82.1(h).
Arthur’s designated method of execution is lethal injection, as he did not
opt for electrocution during the time period allotted in subsection (b). See
§ 15-18-82.1(a), (b). Pursuant to subsection (f), the Alabama Department of
Corrections has elected to carry out Arthur’s lethal injection using a three-drug,
midazolam-based protocol. Arthur asserts that this planned “execution method”
violates the Eighth Amendment. See § 15-18-82.1(h). If our court agreed with
Arthur, then Alabama would be able to resort to “any valid method of execution,”
including the firing squad, to fulfill its goal of executing Arthur. See id.; Glossip,
135 S. Ct. at 2732 (noting that the firing squad is a presumably valid, constitutional
method of execution). As such, through this litigation, § 15-18-82.1(h)’s safety
valve could be implicated, thereby opening the door to the firing squad. The firing
squad is a plausible execution alternative in Alabama.
However, the Majority departs from the plain language of § 15-18-82.1 and
concludes that the statute bars the firing squad here. The Majority makes a
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threshold error by determining that Alabama currently authorizes both
electrocution and lethal injection as methods of execution for Arthur. See Maj. Op.
at 103 (“Alabama has chosen death by lethal injection or electrocution.”). Based
on that finding, the Majority suggests that Arthur cannot rely on the firing squad
because he has not challenged both lethal injection and electrocution. But the text
of subsections (a) and (b) belie the Majority’s conclusion that Alabama has
“chosen” both lethal injection and electrocution for Arthur. Because Arthur did
not opt for electrocution, he “shall be executed by lethal injection.” See Ala. Code
§ 15-18-82.1 (a), (b). Therefore at this time § 15-18-82.1 authorizes Alabama to
kill Arthur only by lethal injection. Alabama has not “chosen” electrocution for
Arthur merely because electrocution is mentioned in the statute as a contingency
option. If that were the case, then “any valid method of execution” would also be
“chosen” for Arthur. See § 15-18-82.1(h). Moreover, the Majority’s suggestion
that Arthur was required to attack electrocution and lethal injection to trigger
§ 15-18-82.1’s safety valves is clearly inconsistent with the statute. Neither
subsection (c) nor subsection (h) states that lethal injection and electrocution must
be struck down to trigger its safety valve.
The Majority also erroneously determines that under § 15-18-82.1 Alabama
can turn to the firing squad only if lethal injection or electrocution is declared
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per se unconstitutional.7 See Maj. Op. at 100–01 (suggesting that Alabama would
have authority to use the firing squad if a court struck down “as unconstitutional
either electrocution or lethal injection”). And since no court has declared either
method per se unconstitutional, the Majority finds that § 15-18-82.1 precludes
Alabama from using the firing squad in this case. A proper textual analysis reveals
that subsection (h) forecloses this reading of the statute.
As noted above, subsection (h) states:
In any case in which an execution method is declared
unconstitutional, the death sentence shall remain in force
until the sentence can be lawfully executed by any valid
method of execution.
Ala. Code § 15-18-82.1(h). At first glance, it is possible to read this sentence in a
manner consistent with the Majority’s interpretation of § 15-18-82.1. That is, the
sentence could be interpreted as permitting Alabama to turn to an alternative
method of execution, such as the firing squad, only if lethal injection or
electrocution is declared per se unconstitutional. But because, as the Majority
concludes, subsection (c) stands for that exact proposition, interpreting
subsection (h) to convey the same message violates an elementary rule of statutory
interpretation—that we must give effect to each provision. See United States v.
Butler, 297 U.S. 1, 65, 56 S. Ct. 312, 319 (1936) (“These words cannot be
7
Of course, this determination is inconsistent with the Majority’s suggestion that
Alabama cannot turn to the firing squad absent an attack on both lethal injection and
electrocution.
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meaningless, else they would not have been used.”). The correct interpretation of
subsection (h)—and the only interpretation that avoids surplusage—is that, if the
specific “execution method” in a “case” is declared unconstitutional, Alabama can
resort to “any valid method of execution.” See Ala. Code § 15-18-82.1(h).
This interpretation is also consistent with the subsections immediately
preceding subsection (h). Subsections (f) and (g) charge the Department of
Corrections with the administration of executions. See § 15-18-82.1(f), (g).
Specifically, subsection (f) provides that the Department of Corrections shall
designate who selects the drugs used in the administration of lethal injection, and
subsection (g) exempts from Alabama’s ordinary rulemaking procedure the
Department of Corrections’s “policies and procedures” for administering
executions. See § 15-18-82.1(f), (g). Immediately following this discussion,
subsection (h) is correctly understood to discuss the constitutionality of the
Department of Corrections’s chosen execution protocol. See Antonin Scalia &
Bryan A. Garner, Reading Law 167 (2012) (“Context is a primary determinant of
meaning.”); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S. Ct. 1811,
1818 (1988) (“In ascertaining the plain meaning of the statute, the court must look
to the particular statutory language at issue, as well as the language and design of
the statute as a whole.”). Based on the plain language of § 15-18-82.1, the statute
permits Alabama to turn to the firing squad when its planned execution protocol
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for a particular prisoner is declared unconstitutional. The Majority’s interpretation
clearly fails.
Yet, even assuming that the plain language of § 15-18-82.1 is ambiguous
and the Majority’s interpretation is plausible, the statute must still be read to permit
the firing squad in this case. In the face of such ambiguity, an interpretation that
“furthers rather than obstructs [the statutory text]’s purpose should be favored.”
See Scalia, supra, at 63; SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 350,
64 S. Ct. 120, 123 (1943) (“[C]ourts [sha]ll construe the details of an act in
conformity with its dominating general purpose.”). This rule of statutory
construction militates against the Majority’s interpretation of § 15-18-82.1.
The purpose of subsections (c) and (h) is clear: to ensure that Alabama can
enforce the death penalty through an alternative form of execution when its chosen
means of executing a prisoner is declared unconstitutional. Under the reading
described above, § 15-18-82.1 provides Alabama the authority to (1) turn to an
alternative form of execution upon a per se finding that lethal injection or
electrocution is unconstitutional, see Ala. Code § 15-18-82.1(c), and (2) employ
“any valid method of execution” when its specific execution protocol is declared
unconstitutional, see § 15-18-82.1(h). In contrast, the Majority’s interpretation
affords Alabama the authority to use an alternative form of execution only when
lethal injection or electrocution is declared per se unconstitutional. This reading
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plainly limits Alabama’s ability to turn to an alternative form of execution in the
face of constitutional scrutiny. The interpretation obstructs the purpose of
subsections (c) and (h) and impairs Alabama’s ability to enforce the death penalty.
The Majority’s determination that § 15-18-82.1 precludes Arthur from
relying on the firing squad is inconsistent with the plain language of the statute and
the purpose underlying subsections (c) and (h). Arthur’s firing-squad claim
conflicts only with the Majority’s flawed interpretation of Alabama law, not
Alabama law itself.
III. THE MAJORITY’S RELIANCE ON STATE LAW CONTRAVENES
BAZE, GLOSSIP, AND THE SUPREMACY CLAUSE.
Even assuming that § 15-18-82.1 does not permit the firing squad under the
present circumstances, the Majority’s dismissal of Arthur’s claim would still be
erroneous. The Majority’s rejection of the firing squad rests on its determination
that, if a state legislatively opposes an execution alternative, then the alternative is
not feasible and readily implemented and method-of-execution relief is foreclosed.
State law however is irrelevant to the Eighth Amendment inquiry established by
Baze and Glossip, and more fundamentally, under the Supremacy Clause, state law
cannot thwart a viable constitutional claim. In relying on state law to deny Arthur
relief, the Majority commits constitutional error. The Majority’s decision in effect
turns Baze and Glossip’s method-of-execution test—a test designed to protect the
Eighth Amendment rights of death row prisoners—into a test that narrows, and in
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many cases defeats, those rights. This transformation is not only unprecedented, it
is completely unmoored from precedent.
A. Baze and Glossip
1. An Overview of Baze and Glossip
In Baze, the Supreme Court first held that a method-of-execution claimant
must identify a “feasible” and “readily implemented” execution alternative that
“significantly reduce[s] a substantial risk of severe pain.” See Baze, 553 U.S.
at 52, 128 S. Ct. at 1532; Glossip, 135 S. Ct. at 2737. According to the Baze
Court, “[i]f a [s]tate refuses to adopt . . . an alternative in the face of these
documented advantages, without a legitimate penological justification for adhering
to its current method of execution, then [the] [s]tate’s refusal . . . can be viewed as
‘cruel and unusual.’” Baze, 553 U.S. at 52, 128 S. Ct. at 1532. Baze neither placed
any restrictions on the categories of execution alternatives that a claimant can rely
on to demonstrate such cruel and unusual conduct, nor limited possible alternatives
to those that the claimant’s state has approved. See id., 128 S. Ct. at 1532. To
satisfy Baze, an alternative must simply have the “documented advantages” of
being “feasible, readily implemented,” and significantly safer than the state’s
designated execution method. See id., 128 S. Ct. at 1532.
Subsequently, Glossip confirmed this “execution alternative” requirement,
stating:
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The controlling opinion [in Baze] summarized the
requirements of an Eighth Amendment
method-of-execution claim as follows: . . . the
condemned prisoner [must] establish[] that the [s]tate’s
[method of execution] creates a demonstrated risk of
severe pain. And he must show that the risk is
substantial when compared to the known and available
alternatives.
Glossip, 135 S. Ct. at 2737 (internal quotation marks omitted). Consistent with
Baze, Glossip also indicated that, when attempting to satisfy the “execution
alternative” requirement, prisoners are neither limited to certain categories of
execution alternatives nor constrained by state-approved alternatives. See id.
at 2739 (stating that a prisoner is required only “to plead and prove a known and
available alternative”); id. (rejecting the dissent’s argument that “the methods of
execution employed before the advent of lethal injection,” such as the firing squad,
are not permissible execution alternatives).
In Glossip, the prisoners argued that Oklahoma’s lethal injection cocktail
posed an unacceptable risk of cruel and unusual punishment. They proposed a
different cocktail as an execution alternative. However, the Court found that the
proposed cocktail was not a “known and available” alternative because the record
showed that “despite a good-faith effort,” Oklahoma was unable to procure the
drugs in the cocktail. Id. at 2738. Due to the scarcity of those drugs, it was
functionally impossible for Oklahoma to obtain them. See id. at 2733–34, 2738.
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Our court has applied the “execution alternative” requirement on multiple
occasions. We have found, in accord with Glossip, that a proposed execution
alternative does not satisfy the requirement when a state is unable to obtain the
materials necessary for the alternative. See, e.g., Brooks v. Warden, 810 F.3d 812,
820–21 (11th Cir. 2016) (concluding that, due to scarcity, the lethal injection
cocktail that the prisoner proposed as an execution alternative was not available to
Alabama), cert. denied sub nom. Brooks v. Dunn, 136 S. Ct. 979 (2016); Chavez v.
Fla. SP Warden, 742 F.3d 1267, 1274 (11th Cir. 2014) (Carnes, C.J., concurring)
(rejecting a method-of-execution claim in part because the prisoner admitted that
the relevant lethal injection drug alternatives were unavailable), cert. denied
sub nom. Chavez v. Palmer, 134 S. Ct. 1156 (2014). We have never concluded
that an execution alternative fails to satisfy Baze and Glossip because a state has
rejected the alternative by legislation or some other means.
2. The Majority’s Misapplication of Baze and Glossip
Although neither Baze nor Glossip holds that an execution alternative must
be state authorized, the Majority imposes such a requirement on Arthur. The
Majority finds that, if a state legislatively rejects an alternative, the alternative is
not feasible and readily implemented. But the “feasible and readily implemented”
inquiry cannot serve as a vessel for the Majority’s novel requirement. State
opposition to an execution alternative—through legislation or any other means—
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has no bearing on the “feasible and readily implemented” inquiry as set forth in
Baze and Glossip.
Whether an execution is feasible and readily implemented is considered
separately from a state’s rejection of the alternative. Again, in setting forth the
“execution alternative” requirement, Baze emphasized:
[An] alternative procedure must be feasible, readily
implemented, and in fact significantly reduce a
substantial risk of severe pain. If a [s]tate refuses to
adopt such an alternative in the face of these documented
advantages, without a legitimate penological justification
for adhering to its current method of execution, then a
[s]tate’s refusal to change its method can be viewed as
“cruel and unusual” under the Eighth Amendment.
Baze, 553 U.S. at 52, 128 S. Ct. at 1532. Hence, in considering a
method-of-execution claim, we determine whether a proposed alternative has
“documented advantages,” such as being feasible and readily implemented, and
then we consider separately the state’s refusal to adopt the alternative. See id.,
128 S. Ct. at 1532. Those are clearly distinct inquiries. An alternative can have
the “documented advantages” of being “feasible” and “readily implemented” even
though a state “refuses to adopt” the alternative. See id., 128 S. Ct. at 1532. A
state’s decision to embrace or reject an alternative therefore does not bear on the
“feasible and readily implemented” inquiry. Yet, under the Majority’s reasoning,
when a state refuses to adopt an execution alternative—by, for example, passing
legislation that rejects the alternative and then adhering to that legislation—the
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alternative is ipso facto not feasible and readily implemented. That novel
conclusion contravenes Baze.
Indeed, Baze and Glossip’s method-of-execution standard would be
internally inconsistent if the “feasible and readily implemented” inquiry took into
account a state’s opposition—via legislation or another means—to an execution
alternative. A state’s refusal to adopt a viable execution alternative is the very
conduct that gives rise to an Eighth Amendment violation under Baze and Glossip.
See id., 128 S. Ct. at 1532. The Eighth Amendment prohibits states from ignoring
an “objectively intolerable risk of harm” when imposing punishment. See id.
at 49–50, 128 S. Ct. at 1530–31 (internal quotation marks omitted). The
method-of-execution standard implements this constitutional protection. When a
state uses a dangerous method of execution and “refuses to adopt” an alternative
that is feasible, readily implemented, and significantly safer than the state’s
method, the state ignores an avoidable risk of harm, thereby violating the Eighth
Amendment. See id. at 52, 128 S. Ct. at 1532.
The Majority’s decision allows this exact conduct to shield a state from
method-of-execution liability. According to the Majority, Alabama has
legislatively opposed the firing squad, and that “refus[al] to adopt” the firing squad
defeats Arthur’s method-of-execution claim. See id. at 52, 128 S. Ct. at 1532.
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That application of Baze and Glossip is clearly inconsistent with those precedents.
State law cannot render the firing squad not feasible and readily implemented.
B. The Supremacy Clause
Beyond its incongruence with Baze and Glossip, the Majority’s treatment of
state law conflicts with the Supremacy Clause. In determining that state law can
thwart an execution alternative, the Majority improperly grants states the power to
dictate the scope of federal constitutional relief. See U.S. Const. art. VI, cl. 2
(“[The Constitution] shall be the supreme Law of the Land . . . Laws of any State
to the Contrary notwithstanding.”). The upshot of this novel allocation of power is
that a state statute can abrogate prisoners’ Eighth Amendment right to a humane
execution.
Under the Majority’s decision, § 15-18-82.1 constricts Eighth Amendment
relief and protects Alabama from claims that are viable under Baze and Glossip.
The Eighth Amendment guarantees method-of-execution relief when a prisoner
identifies any viable alternative. See Baze, 553 U.S. at 51–52, 128 S. Ct. at 1531–
32; Glossip, 135 S. Ct. at 2737–39. However, because the only method of
execution that § 15-18-82.1 currently authorizes for Arthur is lethal injection,
Arthur must identify a viable lethal-injection-based alternative to obtain
method-of-execution relief. Any other type of alternative is not contemplated by
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§ 15-18-82.1 and is not feasible and readily implemented.8 Section 15-18-82.1
thus severely restricts the circumstances in which Arthur can obtain
method-of-execution relief. This narrowing of Arthur’s access to relief flouts the
Supremacy Clause; states cannot override the Constitution’s protections. See
Reynolds v. Sims, 377 U.S. 533, 582–84, 84 S. Ct. 1362, 1392–93 (1964) (“When
there is an unavoidable conflict between the Federal . . . Constitution [and state
law], the Supremacy Clause of course controls.”); Cox v. Louisiana, 348 F.2d 750,
752 (5th Cir. 1965) (“When a [s]tate . . . [limits] citizens [in] the exercise of their
constitutional rights[,] . . . the federal system is imperiled.”).
The Majority’s state-law determination however does not merely allow
states to constrict prisoners’ Eighth Amendment rights—it permits states to
abrogate such rights. Moving forward, a state can pass legislation requiring all
executions to be performed with a certain gas chamber protocol or a certain
electrocution protocol, and since the legislation would authorize only those two
particular protocols, no other protocol or method of execution would be feasible
8
While concluding that Arthur must rely on an alternative currently authorized by
§ 15-18-82.1, the Majority indicates that, under its reading of § 15-18-82.1, Arthur could have
obtained relief based on an alternative that is not currently authorized if he successfully raised a
per se challenge to lethal injection or electrocution. However, that point is a red herring. First, a
prisoner such as Arthur who Alabama plans to kill via lethal injection has no standing to
challenge electrocution. Second, it strains credulity to suggest that Arthur could, at this time,
raise a legitimate argument that lethal injection is per se unconstitutional. Lethal injection is a
category of execution that can be carried out in a variety of ways. A finding that lethal injection
is per se unconstitutional would require a finding that every possible method of lethal injection is
unconstitutional. Hence, it was not feasible for Arthur to successfully bring a per se challenge to
electrocution or lethal injection. Such challenges do not provide a means for Arthur or others to
obtain relief based on a method of execution not currently authorized by § 15-18-82.1.
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and readily implemented. As a result, even in the face of evidence that both
protocols are excruciatingly painful, condemned prisoners could never obtain relief
from the protocols—it would be impossible to meet Baze and Glossip’s “execution
alternative” requirement, and Baze and Glossip provide the only avenue for
method-of-execution relief. The state’s legislation would thus nullify prisoners’
right to a humane execution.
Although this example is merely a hypothetical, it underscores the troubling
constitutional issues that arise from the Majority’s decision. The decision allows
state law to trump the Eighth Amendment’s basic guarantee against cruel and
unusual punishment. 9 Contra U.S. Const. art. VI, cl. 2.
IV. THE MAJORITY’S DECISION FORECLOSES RELIEF FOR
PRISONERS ACROSS THIS CIRCUIT WHO ARE DESIGNATED TO DIE
BY LETHAL INJECTION.
Prisoners in Alabama and Florida10 who, like Arthur, are designated to die
by lethal injection must now identify a viable lethal-injection-based alternative to
obtain method-of-execution relief. But given the “difficult realities” surrounding
lethal injection drugs, that is not practicable. See Brief of Defendant-Appellee
9
These serious constitutional concerns provide yet another reason why the Majority’s
interpretation of § 15-18-82.1 is improper. Even if the text of the statute is susceptible both to
the reading the Majority ascribes and to the one advanced above, because the reading advanced
above avoids a clash with the Supremacy Clause, it is the one that must be employed. See Clark
v. Martinez, 543 U.S. 371, 381, 125 S. Ct. 716, 724 (2005).
10
As previously noted, because Florida has a statute that is identical to § 15-18-82.1, the
Majority’s decision has the same consequences for Florida and Alabama prisoners. Compare
Ala. Code § 15-18-82.1, with Fla. Stat. § 922.105.
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at 10, Arthur v. Comm’r, Ala. Dept. of Corr., ___ F.3d ___, No. 16-15549
(11th Cir. Oct. 11, 2016) (noting the practical barriers to identifying a viable
lethal-injection-based alternative). Due to the scarcity of and secrecy surrounding
lethal injection drugs, it is all but impossible for a prisoner to set forth a viable
lethal-injection-based alternative. The Majority’s decision therefore checkmates
countless Alabama and Florida prisoners, nullifying their constitutional right to a
humane execution.
Many condemned prisoners have attempted to propose lethal injection drug
alternatives in method-of-execution cases but those attempts have been futile
because lethal injection drugs are extremely scarce. See, e.g., Glossip, 135 S. Ct.
at 2738 (rejecting a method-of-execution claim after finding that “Oklahoma has
been unable to procure [two formerly widely-used lethal injection] drugs despite a
good-faith effort to do so”); Brooks, 810 F.3d at 820–21; Chavez, 742 F.3d at 1274
(Carnes, C.J., concurring) (discussing the scarcity of lethal injection drugs);
Sepulvado v. Jindal, 729 F.3d 413, 416 (5th Cir. 2013) (“Since 2010, the first drug
in [Louisiana’s former lethal injection] procedure—sodium thiopental—has been
unavailable.”); cf. Wood v. Ryan, 759 F.3d 1076, 1097 (9th Cir. 2014) (Bybee, J.,
dissenting) (remarking that “Tennessee recently reauthorized the use of the electric
chair as an alternative method of execution” due to concerns about the
unavailability of “the drugs necessary to perform a lethal injection”), vacated,
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135 S. Ct. 21 (2014); Distanislao, Note, 49 U. Rich. L. Rev. at 804–05
(“[A]mid . . . widespread drug shortages, capital punishment is losing its position
as a functional element of American society.”). In fact, Arthur himself proffered to
the district court two alternative lethal injection drug compounds, but the district
court rejected those proposed alternatives after discovery, finding them unavailable
to Alabama. See Arthur v. Dunn (Dunn I), No. 2:11-cv-438-WKW-TFM, slip op.
at 19–21 (M.D. Ala. Apr. 15, 2016); Brief of Defendant-Appellee at 10, Arthur,
No. 16-15549. And the Majority now affirms that finding. See Maj. Op. at 68, 78.
Furthermore, to the extent that some limited supply of viable, alternative
lethal injection drugs exists, prisoners cannot gather the information needed to use
those drugs in a method-of-execution claim because details about lethal injection
drugs and their suppliers are heavily concealed. See, e.g., Arthur v. Thomas,
674 F.3d 1257, 1263 (11th Cir. 2012) (per curiam) (noting “the veil of secrecy that
surrounds Alabama’s execution protocol”); Terrell v. Bryson, 807 F.3d 1276, 1281
(11th Cir. 2015) (Martin, J., concurring) (discussing Georgia’s lethal injection
“secrecy rules”). This veil of secrecy is evident here. Arthur was stonewalled in
his attempts to gather information about the availability of the drugs in his
proposed lethal injection compounds. According to testimony from an expert
witness who asked members of the drug community about the availability of one of
the compounds, “none of the pharmacists” that he spoke to “provided [him]
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permission to share their names [or] contact information.” See Arthur v. Dunn
(Dunn II), No. 2:11-cv-438-WKW-TFM, slip op. at 41 (M.D. Ala. July 19, 2016).
Another expert witness also spoke to the secrecy surrounding the compound,
stating, “I have no knowledge of where any state has [in the past] secured [the
compound].” See Dunn I, slip op. at 11 n.5.
The scarcity of and secrecy surrounding lethal injection drugs make it
basically impossible to identify a “feasible” and “readily implemented”
lethal-injection-based alternative that “significantly reduce[s] a substantial risk of
severe pain.” See Baze, 553 U.S. at 52, 128 S. Ct. at 1532; Glossip, 135 S. Ct.
at 2737. This bears out in our case law. Based on my research, no prisoner has
ever successfully challenged his method of execution relying on a lethal-injection-
based alternative.
Accordingly, the Majority’s decision all but forecloses method-of-execution
relief for a myriad of Alabama and Florida prisoners. 11 This case is telling.
Arthur proffered an execution alternative that was not lethal-injection-based, but
the Majority’s interpretation of § 15-18-82.1 thwarted that potentially safe and
available alternative, leaving Arthur with no choice but to rely solely on
lethal-injection-based alternatives. Arthur attempted to identify such an alternative
11
The Majority’s decision may also chill the rights of prisoners outside our circuit.
Several states have legislation similar to § 15-18-82.1. Compare Ala. Code § 15-18-82.1, with,
e.g., Tenn. Code § 40-23-114 (2014); Ky. Rev. Stat. § 431.220–223 (1998).
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but was stymied by the limited supply of lethal injection drugs and the secrecy
surrounding such drugs. Checkmate.
V. CONCLUSION
The Majority misinterprets Alabama law, reads a new restriction into Baze
and Glossip that is directly at odds with those decisions, and empowers states to
thwart constitutional claims. Taken together, these errors have jarring practical
consequences; relief under Baze and Glossip is now a mirage for prisoners across
this circuit.
Arthur is entitled to amend his complaint and proceed with his method-of-
execution claim proposing the firing squad. 12 I respectfully dissent.
12
In addition to finding that the firing squad is not feasible and readily implemented, the
Majority opines that the district court’s denial of Arthur’s request to amend was not error
because Arthur has failed to prove that Alabama’s three-drug lethal injection protocol is sure or
very likely to cause serious harm. Based on the posture of this case, that is not a proper basis for
affirming the district court. The parties have not litigated whether Alabama’s protocol, as a
general matter, is sure or very likely to cause serious harm. The district court dismissed all of
Arthur’s general method-of-execution claims based on the “execution alternative” requirement,
and Arthur’s as-applied challenge did not present the issue of whether the protocol is sure or very
likely to cause serious harm to prisoners. Because the parties have not litigated that issue, the
Majority’s reliance on the issue is misplaced.
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APPENDIX
In offering the firing squad as an execution alternative, Arthur’s proposed
complaint states:
Alternative #3 – Firing Squad
134. A third potential alternative is the firing squad. The
Supreme Court has held that the firing squad is a
constitutionally permissible form of execution.
See Wilkerson v. Utah, 99 U.S. 130, 134–35 (1879)
(upholding sentence of death by firing squad). Indeed, as
recently as 2010 Utah executed an inmate by firing
squad. On March 23, 2015, Utah Governor Gary Herbert
signed into law an amendment providing that firing
squads will serve as the backup method of execution if
lethal injection drugs are not available.
135. Protocols for execution by firing squad, which has
been carried out at least three times since 1976 without
apparent incident, are known and available. For
example, under Utah’s recent law, the prisoner is seated
in a chair set up between stacked sandbags to prevent the
bullets from ricocheting. A target is pinned over the
inmate’s heart. Five shooters are set up approximately
25 feet from the chair where the prisoner is seated, with
.30 caliber Winchester rifles pointing through slots in the
wall. The gunmen are chosen from a pool of volunteer
officers. (Utah Rep. Paul Ray, the sponsor of the firing
squad bill, has said that there are always more volunteers
than spots on the firing squad. Upon information and
belief, the same would be true in Alabama and/or the
State would otherwise be able to supply officers to carry
out an execution.) The shooters’ identities are kept
anonymous, and one rifle is loaded with a blank so that
no one knows which officer killed the inmate.
136. The firing squad is a known and available
alternative in the state of Alabama. Upon information
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and belief, there are numerous people employed by the
State who have the training necessary to successfully
perform an execution by firing squad. The State already
has a stockpile of both weapons and ammunition.
137. Moreover, execution by firing squad, if
implemented properly, would result in a substantially
lesser risk of harm than the State’s continued use of a
three-drug protocol involving midazolam. Evidence and
recent experience strongly suggest that the firing squad is
“significantly more reliable than other methods.”
Glossip, 135 S. Ct. at 2796 (Sotomayor, J., dissenting).
A recent study, which analyzed the contemporaneous
news reports of all executions in the United States from
1900 to 2010, found that 7.12% of the 1,054 executions
by lethal injection were “botched” and that 0 of the 34
executions by firing squad had been botched.
138. Accordingly, if implemented properly, an execution
by firing squad is a known and available alternative
method of execution that presents a substantially lower
risk of pain and suffering than the current [Alabama
Department of Corrections] protocol described above.
Motion for Leave to File Third Amended Complaint, Exhibit A at 43–
44, No. 2:11-CV-438-WKW-TFM (M.D. Ala. Aug. 25, 2015), ECF
No. 256-1 (footnotes omitted).
140