Michael Taylor v. Larry Crawford etc. , 487 F.3d 1072 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 06-3651
________________
*
Michael Anthony Taylor, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Larry Crawford, Director, Missouri * [PUBLISHED]
Department of Corrections; James *
D. Purkett, Superintendent, Eastern *
Reception Diagnostic & *
Correctional Center, *
*
Appellants. *
________________
Submitted: January 10, 2007
Filed: June 4, 2007
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Before RILEY, BEAM, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
The State of Missouri, through its officers Larry Crawford and James D. Purkett
(collectively "the State"), appeals the district court's judgment, which concludes that
Missouri's lethal injection protocol is unconstitutional. Finding no wanton infliction
of cruel and unusual punishment in violation of the Eighth Amendment, we reverse.
I.
Michael Anthony Taylor pleaded guilty and was sentenced to death in Missouri
state court for the abduction, abuse, and brutal murder of 15-year-old Ann Harrison.1
His convictions and sentence have withstood judicial scrutiny on direct appeal, see
State v. Taylor, 929 S.W.2d 209 (Mo. 1996) (en banc), cert. denied, 519 U.S. 1152(1997), and in federal habeas corpus proceedings, see Taylor v. Bowersox, 329 F.3d
963 (8th Cir. 2003), cert. denied, 541 U.S. 947 (2004). Mr. Taylor filed this 42 U.S.C.
§ 1983 action in the federal district court, the timeliness of which was not contested,
challenging the State's three-chemical procedure used in carrying out a sentence of
death by lethal injection. See Mo. Rev. Stat. § 546.720 (describing the manner of
execution as either the administration of lethal gas or lethal injection, and authorizing
the department director to make sufficient provisions for carrying out either method).
At the time Mr. Taylor brought suit, the State intended to use its unwritten
procedure of administering a lethal combination of three chemicals through an
intravenous line (IV) placed in the femoral vein. In prior executions, a physician
placed the IV and prepared the chemicals, and nonmedical prison personnel
administered the injections in a three-step process. First, a 5-gram dose of sodium
pentothal (also known as thiopental) was injected to render the inmate unconscious.
Second, a 60-milligram dose of pancuronium bromide was administered to paralyze
the inmate's muscles, and third, a 240-milliequivalent injection of potassium chloride
was injected to stop the heart. A saline flush followed each injection. Mr. Taylor now
asserts that Missouri's procedure creates a significant risk that he might suffer the
1
We will not here recount the facts of his crime as they are not relevant to this
appeal.
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wanton infliction of pain because if the first chemical, thiopental, does not sufficiently
anesthetize him, he will feel the pain of the third chemical, potassium chloride, which
indisputably will cause an excruciating burning sensation as it travels through his
veins to induce a heart attack, and yet he would be unable to indicate that he is
experiencing pain due to the paralyzing effects of the second chemical, pancuronium
bromide.
The district court failed to set a hearing on the merits of Taylor's complaint in
a timely fashion, and this court ultimately ordered the chief district judge to reassign
the case to a different judge who would hold an immediate hearing and make a ruling.2
In an order dated January 31, 2006, the district court initially concluded that the three-
chemical sequence was not unconstitutional, and Mr. Taylor appealed. Concluding
that justice was not served by the expedited nature of that hearing, though the district
court had fully complied with our prior order requiring it, we remanded for additional
discovery and a continuation of the evidentiary hearing to provide Mr. Taylor an
adequate opportunity to fully present the merits of his claim.
On remand, the district court permitted the parties to engage in a period of
additional discovery and reconvened the evidentiary hearing on June 12-13, 2006.
The additional discovery permitted access to the Department of Correction's
documents and logs pertaining to the last six executions and a limited anonymous
deposition of John Doe I ("Dr. Doe I"), the physician in charge of mixing the
chemicals and inserting the IVs for the past six executions. The execution logs reveal
2
The procedural particularities of this case are recounted fully in our prior
decisions, Taylor v. Crawford, 445 F.3d 1095, 1096-98 (8th Cir. 2006) (retaining
jurisdiction but remanding for additional discovery and a continued evidentiary
hearing), and Taylor v. Crawford, 457 F.3d 902, 904 (8th Cir. 2006) ( remanding for
the district court to consider the State's proposed written protocol in the first instance).
We will not repeat that procedural history here, except as necessary for a clear
understanding of the current appeal.
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that Missouri does no toxicology reporting following an execution to ascertain the
amount of chemicals actually in the body at the time of death. Dr. Doe I indicated that
the chemical amounts listed in the execution logs are not always accurate as they
represent only "an approximation" of the chemicals used and disposed of; he does not
record the amount of the dose actually administered to the inmate as the logs are used
only for prison inventory and DEA reporting requirements. (See Appellants' App. at
647-49.) In each of the past six executions, however, death occurred in five minutes
or less from the time the first chemical was administered, and there was not a scintilla
of evidence that any prisoner ever suffered any pain other than what was necessary to
acquire access to the prisoner's circulatory system through the insertion of the needed
intravenous lines.
Dr. Doe I revealed that he has dyslexia, which causes him to transpose letters
and numbers, but he asserted that his condition is not significant to his work. "I can
make these mistakes, but it's not medically crucial in the type of work I do as a
surgeon." (Id. at 660.) As he understood Missouri's unwritten procedure, he had the
independent authority to alter the chemical doses at will based on his medical
judgment, and that in fact, there were occasions when he chose to give a dose of only
2.5 grams of thiopental without notifying the director, but in his opinion, this dose was
sufficient. Under the unwritten procedure, Dr. Doe I would monitor the anesthetic
depth of the inmate to ensure he was fully unconscious solely by observing the
inmate's facial expression through an observation window.
The district court allowed the plaintiff to conduct a Rule 34 inspection and
videotaped tour of Missouri's execution chamber. The inspection revealed that the
operations room in which the chemicals are mixed and administered is lit when the
chemicals are mixed but dark during the execution, though the execution chamber
remains lit during the execution. The observation window from which Dr. Doe I
observes the procedure is partially obstructed by blinds, and the inmate faces away
from the window. During the procedure, the inmate's face is left uncovered, but the
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rest of his body, including the femoral vein injection site, is completely covered by a
sheet.
At the continued evidentiary hearing, Mr. Taylor presented the testimony of Dr.
Mark Heath, an anesthesiologist, and Dr. Thomas Henthorn, an expert in
pharmacokinetics. These experts agreed that the third injection (the potassium
chloride) would be exceedingly painful if administered without having first achieved
adequate anesthetization of the condemned inmate.
Dr. Heath criticized the State's lack of a written protocol, asserting that a clearly
written protocol is important so the procedure can be rehearsed and to ensure a
humane execution. He noted that significant variations from the articulated procedure
had occurred, citing Dr. Doe I's testimony that he had in fact prepared a dose of only
2.5 grams for the previously carried out execution, as well as for Taylor's previously
scheduled execution despite the State's representation that it used a 5-gram dose. Dr.
Heath noted that Dr. Doe I admitted he did not keep accurate chemical logs, contrary
to standard practice. In Dr. Heath's opinion, Dr. Doe I, a board-certified surgeon, is
not competent to oversee the induction of general anesthesia and would not be hired
at any hospital in the United States as an anesthesiologist.
Dr. Heath opined that a humane execution under this three-chemical protocol
requires a state of anesthesia deep enough for surgery. He admitted that a dose of
either 2.5 or 5 grams of thiopental would be sufficient to reach this depth and that, in
fact, rapid induction of anesthesia for surgery is generally achieved in the average
adult with a 0.28-gram dose. He expressed concern, however, that setting a high
dosage level alone does not guarantee the successful delivery of that dose into
circulation and urged the use of additional independent monitoring to ensure
successful delivery of the chemical into the bloodstream.
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Dr. Henthorn testified that an anesthetic depth known as "burst suppression,"
which is deeper than that required for surgery, must be reached for a humane lethal
injection protocol because absent this depth, it is possible to be unconscious and still
feel pain. He testified that burst suppression will be achieved in one minute and 45
seconds using a 5-gram dose of thiopental and in just under three minutes using a dose
of 2.5 grams. He was of the opinion that the State's past practice did not include a
long enough wait time to ensure adequate anesthetization before administering the
second and third chemicals. He also stated that once burst suppression is achieved
with a 5-gram dose of thiopental, it will be maintained for at least 45 minutes with no
additional monitoring necessary. He identified several potential problems that can
adversely affect the proper delivery of the anesthetic, such as an improperly prepared
dose, a leaking tube that could not be detected if the IV site is covered by a sheet, or
an IV insertion error that could cause the anesthetic to be administered into tissue
rather than the bloodstream.
Mr. Taylor also presented the testimony of Dr. Stephen Johnson, a radiologist
and expert in femoral line placement. Dr. Johnson testified that femoral vein access,
which had been used routinely under the unwritten protocol, is unnecessary and
produces an unreasonable risk of unnecessary pain. He opined that the risk of pain
from the IV procedure can be significantly reduced by using peripheral access–the
standard IV placement on the top of the hand.
Testifying for the State, Dr. Mark Dershwitz, an anesthesiologist, stated that
rapid sequence inducement of unconsciousness is achieved in approximately 45
seconds with a dose of as little as 0.3 to 0.4 grams of thiopental in a clinical setting,
and no pain beyond that point will be perceptible to the inmate. In his opinion, while
the high dose of thiopental administered in the lethal injection process will achieve
burst suppression, that level of anesthesia is far in excess of the anesthetic depth
targeted for surgery, and in his opinion, a depth of unconsciousness sufficient to
eliminate pain occurs much earlier than burst suppression. Dr. Dershwitz testified that
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he had recently examined the results of a bispectral index monitor ("BIS monitor")
that had been used in a North Carolina execution to monitor the level of the inmate's
consciousness. Dr. Dershwitz stated that a BIS value of between 60 and 40 is targeted
for surgery, with 40 being the deepest level of unconsciousness used in a clinical
setting. He stated that a BIS level of 40 is the point at which burst suppression begins,
and any level lower than 40 is considered to be unnecessarily deep for surgery. He
testified that the North Carolina execution logs indicated that a three-gram dose of
thiopental was administered and the protocol required a BIS level of 60 before
permitting the administration of the remaining two chemicals. Dr. Dershwitz said that
the logs indicated that there had been no pause in the injection of the chemicals in that
case because once the thiopental and saline flush had been completely administered,
a process that lasted approximately 1-1/2 minutes, the BIS value was already at zero
with a flat line electroencephalogram (EEG).
Dr. Dershwitz agreed with Dr. Henthorn that either a 2.5-gram or a 5-gram dose
of thiopental, successfully delivered, will produce burst suppression requiring no
further need to monitor anesthetic depth. He stated that mixing the thiopental is not
a difficult task and that "certainly, most people who are intelligent can be taught to
mix up a drug like thiopental properly." (June 13, 2006, Hearing Tr. at 331.) Dr.
Dershwitz expressed the opinion that putting a patient to sleep is easy; the skill of the
anesthesiologist lies in keeping the surgery patient stable and alive and successfully
waking the patient at the end of the procedure. The last two purposes, of course, are
not the objects of a lethal injection execution procedure.
Larry Crawford, the Director of the Department of Corrections (the
Department) since early 2005, acknowledged that he has the overall responsibility for
the execution process, that the process had been put in place before his arrival in the
office with heavy reliance on the expertise of Dr. Doe I, but that he had independently
considered the procedure when he first arrived. He admitted he had not been notified
when Dr. Doe I made the decision to lower the dose of thiopental to 2.5 grams.
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Director Crawford indicated that he was planning to issue a new directive with a
defined protocol setting forth the procedure and articulating the areas of discretion.
Director Crawford indicated that he was confident in Dr. Doe I’s competence and
expected that he would continue working with the execution process.3 Director
Crawford testified that he did not intend to carry out Mr. Taylor's execution before
issuing a new directive, stating, "I want to assure that the process is better." (Id. at
377.)
Following the hearing, the district court entered an order on June 26, 2006,
concluding that Missouri's existing three-chemical procedure presents an unnecessary
risk that an inmate will suffer unconstitutional pain during the lethal injection process.
See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035 (W.D. Mo. June
26, 2006) (unpublished). The district court identified several concerns with Missouri's
execution protocol, namely, the lack of a written protocol specifying the chemicals
and doses, the lack of consistency in its administration, the total discretion placed in
the hands of Dr. Doe I, and the lack of any oversight of his conduct during the
process. Additional concerns included Dr. Doe I's dyslexia, his lack of concern over
how that might affect his ability to mix the lethal chemicals, and his limited ability to
monitor the anesthetic depth of the inmate reliably when his view is partially
obstructed by blinds, and the inmate's position in the execution room.
The district court then invoked its equitable powers to fashion a detailed
remedy. Specifically, the court ordered the Department of Corrections to prepare a
written protocol requiring the participation of a board-certified anesthesiologist, not
less than a 5-gram dose of thiopental, certification that the inmate has achieved
3
In a post-oral argument submission, the State informed our court that it was no
longer its intention to utilize the services of Dr. Doe I. Although the State's frequent
and solemn prior representations to us and to the district court that it had always used
a 5-gram dose of thiopental proved to be erroneous, in this instance we will take the
State at its word.
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sufficient anesthetic depth before injecting the last two chemicals, and giving
discretion to the anesthesiologist to choose the best method and location for the
injection site. The order also required the Department to include a procedure for
monitoring anesthetic depth, which may require the purchase of additional equipment
and the repositioning of the inmate in the execution room; a contingency plan to deal
with problems that may arise during the procedure; and an auditing process to ensure
that the individuals involved are complying with the protocol. The district court
further ordered that once approved, the protocol may not be changed absent prior
court approval. Finally, the district court stayed all executions pending approval of
a new protocol. In compliance with our prior instructions, see Taylor, 445 F.3d at
1099, the district court certified its order to this court.
On July 14, 2006, the State submitted a written lethal injection protocol to the
district court. Taylor objected on grounds that this new protocol was too vague and
did not follow the district court's requirement to secure the participation of a board-
certified anesthesiologist. The district court correctly noted that it lacked jurisdiction
to consider the new protocol because the case was on appeal to this court. On August
9, 2006, we therefore remanded the entire dispute to provide the district court the first
opportunity to consider the constitutionality of the newly propounded protocol.
Taylor, 457 F.3d at 904.
On September 12, 2006, the district court entered an order concluding that the
State's written protocol, while "an improvement over the previous procedures," was
still inadequate to provide sufficient constitutional protections. (Appellants' Add. at
27.) The district court ordered that to continue using the three-chemical protocol, the
State must modify the proposal to provide that Dr. Doe I shall not participate, to
require a physician with training in anesthesia to mix the chemicals, to provide for the
possibility of purchasing additional equipment to monitor anesthetic depth, and to
alter the record-keeping requirements. Instead of complying with that order, the State
sought reconsideration, which the district court denied.
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The State appeals, asserting that the district court erred in concluding that its
lethal injection protocol violates the Eighth Amendment. We review de novo
questions of law arising under the Constitution, Hayes v. Faulkner County, Ark., 388
F.3d 669, 673 (8th Cir. 2004), and the district court's findings of fact for clear error,
Royal v. Kautzky, 375 F.3d 720, 722 (8th Cir. 2004), cert. denied, 544 U.S. 1061(2005).
II.
We think it prudent at the outset to set forth clearly what this case is not about.
To do so, we borrow the apt words penned recently by Judge Fogel, United States
District Judge for the Northern District of California, dealing with the same issue:
[C]ourts . . . exist not to resolve broad questions of social policy but to
decide specific legal and factual disputes . . . . This case is not about
whether the death penalty makes sense morally or as a matter of policy:
the former inquiry is a matter not of law but of conscience; the latter is
a question not for the judiciary but for the legislature and the voters. Nor
is it about whether [Missouri's] primary method of execution–lethal
injection–is constitutional in the abstract: the arguments and evidence
presented by the parties address the specific manner in which [Missouri]
has implemented that method and proposes to do so in the future.
Morales v. Tilton, 465 F. Supp. 2d 972, 973 (N.D. Cal. 2006) (internal citations
omitted) (finding serious but correctable deficiencies in the implementation of
California's lethal injection protocol and urging California's executive branch to
address the implementation problems).
The Eighth Amendment's prohibition of cruel and unusual punishments, which
applies to the states through the Fourteenth Amendment, Wilson v. Seiter, 501 U.S.
294, 296-97 (1991), requires, in part, an inquiry into whether a punishment is
excessive, and that inquiry has two aspects. See Gregg v. Georgia, 428 U.S. 153, 173
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(1976) (plurality). "First, the punishment must not involve the unnecessary and
wanton infliction of pain. Second, the punishment must not be grossly out of
proportion to the severity of the crime." Id. (internal citations omitted). Mr. Taylor
presents no argument that the penalty of death by lethal injection is grossly out of
proportion to the severity of his crime. Instead, the question in this case is limited to
whether the process of carrying out the lethal injection sentence involves "the
unnecessary and wanton infliction of pain." Id.The State begins by challenging the standard used by the district court. The
State first argues that the district court erred in finding a constitutional violation on
the basis of its determination that the Missouri lethal injection protocol involves an
unnecessary risk of causing the wanton infliction of pain. The State asserts that the
Supreme Court's articulation of the standard forbids only punishment that actually
involves "the unnecessary and wanton infliction of pain," id. at 173 (emphasis added),
not a mere risk of pain. We respectfully disagree. "An inmate's challenge to the
circumstances of his confinement . . . may be brought under § 1983." Hill v.
McDonough, 126 S. Ct. 2096, 2101 (2006). In Hill, the Court included within this
rule an action challenging a state's lethal injection protocol. The Court quoted the
petitioner's statement of his claim, noting, "[t]he specific objection is that the
anticipated protocol allegedly causes 'a foreseeable risk of . . . gratuitous and
unnecessary' pain." Id. at 2102. While we do not imply that the Court thereby
adopted a new constitutional standard, we do observe that the Court expressed no
dissatisfaction with that statement of the issue, and further, we find it to be consistent
with settled Eighth Amendment jurisprudence.
In general conditions-of-confinement claims involving either a prison condition
allowed to exist or the specific conduct of prison officials, neither of which is
sanctioned as part of the prisoner's sentence, the Court has recognized that "conditions
posing a substantial risk of serious harm" may rise to the level of an Eighth
Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). "That the
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Eighth Amendment protects against future harm to inmates is not a novel
proposition." Helling v. McKinney, 509 U.S. 25, 33 (1993); see also id. at 34-35(rejecting the proposition "that only deliberate indifference to current serious health
problems of inmates are actionable under the Eighth Amendment," and permitting the
case to proceed). "Court of Appeals cases to the effect that the Eighth Amendment
protects against sufficiently imminent dangers as well as current unnecessary and
wanton infliction of pain and suffering are legion." Id. at 34; see also Aswegan v.
Henry, 49 F.3d 461, 464 (8th Cir. 1995) (noting that deliberate indifference to
"conditions posing a substantial risk of serious future harm" violates the Eighth
Amendment).
Although Mr. Taylor's situation does not fit neatly within the general
conditions-of-confinement context because the conduct of which he complains is
necessary to carry out his punishment, as opposed to a mere condition of his
imprisonment, we nevertheless see no logical reason to disregard a substantial risk that
may exist in the procedure necessary to carry out a sentence of death. It is our grave
responsibility to apply constitutional principles that will guard against the unnecessary
and wanton infliction of pain in the procedure through which the State proposes to
carry out a sentence of death, and to successfully do so in the death penalty context,
we must consider whether the procedure to be used presents a substantial risk of
inflicting unnecessary pain. We see no error in the district court's consideration of
whether there is an unnecessary risk that the State's proposed lethal injection protocol
will cause the unnecessary and wanton infliction of pain. See Hudson v. McMillian,
503 U.S. 1, 8 (1992) ("What is necessary to show sufficient harm for purposes of the
Cruel and Unusual Punishments Clause depends on the claim at issue, for two
reasons:" (1) we must apply the wanton infliction of pain standard by giving "due
regard for differences in the kind of conduct against which the Eighth Amendment
objection is lodged," and (2) the "prohibition of cruel and unusual punishments
draw[s] its meaning from the evolving standards of decency that mark the progress of
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a maturing society, and so admits of few absolute limitations." (internal quotations and
citations omitted) (alteration in original)).
We emphasize, as did the district court, that we are not concerned with a risk
of accident. The focus of our inquiry is whether the written protocol inherently
imposes a constitutionally significant risk of pain. "The cruelty against which the
Constitution protects a convicted man is cruelty inherent in the method of punishment,
not the necessary suffering involved in any method employed to extinguish life
humanely." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947)
(plurality). A "risk of accident cannot and need not be eliminated from the execution
process in order to survive constitutional review." Campbell v. Wood, 18 F.3d 662,
687 (9th Cir.), cert. denied, 511 U.S. 1119 (1994). If Missouri's protocol as written
involves no inherent substantial risk of the wanton infliction of pain, any risk that the
procedure will not work as designated in the protocol is merely a risk of accident,
which is insignificant in our constitutional analysis. Resweber, 329 U.S. at 464(noting that a risk of an "unforeseeable accident" interfering with the designated
procedure is not constitutionally significant).
Second, the State asserts that the district court applied the wrong standard by
not requiring Mr. Taylor to demonstrate deliberate indifference on the part of the
prison officials in order to prevail on his § 1983 claim. As noted above, this claim is
not the typical conditions-of-confinement claim challenging prison conditions in
general nor does it involve the action of a particular officer that is not part of the
designated punishment for the crime. See Nelson v. Campbell, 541 U.S. 637, 644
(2004) (articulating the difficulty of categorizing this particular type of claim). The
Supreme Court requires an inquiry into the state of mind of particular state officials
only where the official conduct does not purport to be part of the official penalty for
the crime. See Wilson, 501 U.S. at 302.
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The source of the intent requirement is . . . the Eighth Amendment itself,
which bans only cruel and unusual punishment. If the pain inflicted is
not formally meted out as punishment by the statute or the sentencing
judge, some mental element must be attributed to the inflicting officer
before it can qualify.
Id. at 300. The potential pain alleged in this case would be inflicted as the state-
sanctioned punishment because the proposed protocol is intended to be used to carry
out the lawfully imposed sentence. See Nelson, 541 U.S. at 644 (noting that the
"imposition of the death penalty presupposes a means of carrying it out"). The
infliction of capital punishment is itself a deliberate act, deliberately administered for
a penal purpose. See Wilson, 501 U.S. at 300. The protocol at issue is created by the
Department's director, in whose discretion state law places the matter, and it is created
for the purpose of carrying out the sentence in a humane manner. See Mo. Rev. Stat.
§ 546.720 (placing the responsibility for carrying out a lawful sentence of death by
lethal injection solely within the hands of the Director of the Department of
Corrections). The propriety of this proposed protocol in the first instance (that is,
whether it achieves the goal of carrying out the punishment in a humane manner or
in fact uses torturous methods), therefore, depends upon whether the protocol as
written would inflict unnecessary pain, aside from any consideration of specific intent
on the part of a particular state official.
The State relies on language in Resweber for its insistence that the plaintiff
must demonstrate a purpose to inflict harm, but Resweber presented a different
situation. The Court there concluded that a second attempt at electrocution (after the
first attempt had failed due to technical problems) was not unconstitutional, finding
there was "no purpose to inflict unnecessary pain." Resweber, 329 U.S. at 464(emphasis added). A state of mind inquiry was necessary in that case because the
conduct at issue – a second application of electrocution – was not authorized by
statute nor was it the regular procedure adopted by state officials for carrying out a
sentence of death. The Court found that the state official's decision to apply
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electrocution a second time was constitutional because it was the result of an accident
and was not done for the purpose of inflicting pain. See id. (emphasizing that the
unforeseeable equipment failure during the first electrocution made a second attempt
necessary, and "an unforeseeable accident . . . cannot . . . add an element of cruelty");
see also id. at 471 (Frankfurter, J., concurring) (indicating that a different outcome
may have resulted had there been a showing of willful multiple applications of
electrocution). The conduct challenged in the present case is neither alleged to be
accidental nor a deviation from the official procedure, which would require a showing
of an intent to harm or deliberate indifference. Instead, the official conduct challenged
is the State's designated procedure for deliberately carrying out the prescribed penalty
intended to punish the inmate.
We turn then to the task of assessing whether Missouri's lethal injection
protocol amounts to cruel and unusual punishment, involving a substantial foreseeable
risk of the wanton infliction of pain. The Eighth Amendment prohibits the
unnecessary and wanton infliction of pain through torture, barbarous methods, or
methods resulting in a lingering death. See Gregg, 428 U.S. at 170. The Eighth
Amendment is interpreted in a flexible manner, "'acquir[ing] meaning as public
opinion becomes enlightened by a humane justice.'" Id. at 171 (quoting Weems v.
United States, 217 U.S. 349, 378 (1910)). "'The Amendment must draw its meaning
from the evolving standards of decency that mark the progress of a maturing society'"
and "accord with 'the dignity of man.'" Id. at 173 (quoting Trop v. Dulles, 356 U.S.
86, 100-01 (1958) (plurality)).
The evidence reveals that the only inherent risk in Missouri's written procedure
arises from the specific chemicals chosen by the State to carry out the sentence of
death by lethal injection. Lethal injection itself "is commonly thought to be the most
humane form of execution." Abdur'Rahman v. Bredesen, 181 S.W.3d 292, 306 (Tenn.
2005), cert. denied, 126 S. Ct. 2288 (2006); see also Beardslee v. Woodford, 395 F.3d
1064, 1074 (9th Cir.) (specifically noting that humane concerns were a motivation for
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adopting lethal injection as the presumptive method of execution in California), cert.
denied, 543 U.S. 1096 (2005). There is no dispute, however, that the third and last
chemical chosen for use in this protocol will cause excruciating pain if the inmate is
not adequately anesthetized and that use of the second chemical in the sequence will
simultaneously mask any visible sign of that pain. Because of those inherent
properties of two of the chemicals chosen to carry out the sentence of death, we must
carefully evaluate the designated procedure to determine whether it sufficiently
safeguards against the infliction of this excruciating pain such that any lingering risk
is not of constitutional magnitude.
The written protocol is a four-page document divided into six sections–(A)
describing the execution team; (B) describing the preparation of the chemicals; (C)
describing the process for inserting the intravenous lines; (D) setting rules for
monitoring the prisoner; (E) setting rules for administering the chemicals; and (F)
documenting the chemicals. The protocol requires a more than adequate 5-gram dose
of thiopental, and the quantities of chemicals prescribed in the sequence may not be
changed without prior approval of the department director.4 The execution team
consists of contracted medical personnel and department employees. As noted earlier,
the State has indicated that Dr. Doe I will not be participating in the procedure. A
physician, nurse, or pharmacist prepares the chemicals, which are injected by
nonmedical department employees. A physician, nurse, or emergency medical
technician holding either an "EMT-intermediate or EMT-paramedic" certification
inserts the intravenous lines, establishing both a primary and a secondary IV (which
4
Specifically, the procedure requires 15 syringes – the first 4 syringes contain
a total quantity of 5 grams of thiopental, the next syringe contains only saline solution,
then 60 milligrams of pancuronium bromide, then saline solution, then two syringes
containing a total of 240 milliequivalents of potassium chloride, and the tenth syringe
contains saline solution. Four additional syringes, each containing an extra 1.25 gram
dose of thiopental, are prepared in case additional anesthetic is required, and one
additional syringe of extra saline solution is prepared.
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must be a peripheral line) unless the prisoner's physical condition prevents the use of
two lines. (Appellants' Add. at 32.) The protocol provides the medical personnel with
discretion to determine the best place to insert the IV lines, and it requires that the
medical personnel be qualified with the appropriate training, education, and
experience to perform the IV placement procedure determined to be most appropriate.
The protocol requires medical personnel to confirm that the IV lines are
working properly both before and during the procedure and to attach and monitor an
electrocardiograph during the execution procedure. Medical personnel must supervise
the injection of the contents of the syringes by department employees. Before the
second and third chemicals are injected, medical personnel must examine the prisoner
physically to confirm that he is unconscious using standard clinical techniques and
must inspect the catheter site again. The second and third chemicals are injected only
after confirmation that the prisoner is unconscious and after a period of at least three
minutes has elapsed from the first injection of thiopental. The protocol also requires
accurate documentation of the chemicals given, the order in which they were given,
and the quantities of chemicals used and discarded. Any deviations from the written
protocol must be promptly reported to the department director.
The district court concluded that the State's written protocol, while an
improvement over the unwritten procedure, was still constitutionally deficient. The
court ordered the State to modify its proposal as follows: (1) the written protocol
must require the participation of a physician with training in the administration of
anesthesia and must prohibit Dr. Doe I from participating in the lethal injection
process, (2) the written protocol must provide for the purchase of additional
equipment to adequately monitor anesthetic depth, (3) the written protocol's record-
keeping procedures must comply with specific requirements set forth by the court, (4)
the protocol must provide for court review of any deviation from it, and (5) the written
protocol may not be implemented by medical personnel such as paramedics or EMTs
unless they are employed by the supervising physician.
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Our independent review of the State's written protocol and the record in this
case leads us to the conclusion that the written protocol does not violate the Eighth
Amendment, and thus, the district court had no basis on which to impose an equitable
remedy requiring further modification of the protocol. The concerns that the district
court noted and required to be modified do not rise to the level of creating a
constitutionally significant risk of pain.
The experts agree that if a 5-gram dose of thiopental is successfully delivered,
there is virtually no risk that an inmate will suffer pain through Missouri's three-
chemical sequence. The experts also agree that a properly functioning IV, even
peripherally placed, will adequately deliver the dose and that the inmate will then be
sufficiently unconscious in less than two minutes, without the need of any further
monitoring. The written protocol requires a 5-gram dose of thiopental and a three-
minute wait before injecting the final two chemicals. The written protocol sufficiently
provides for proper delivery of that dose by requiring the IV insertions to be
accomplished by medical personnel (a physician, nurse, or EMT) who is qualified to
perform the task, who must confirm before the procedure begins that the IV is
functioning properly and not obstructed, and who must inspect the site again before
the final two chemicals are injected. The physician, nurse, or EMT is given discretion
only with regard to determining the proper placement of the IV and the appropriate
procedure for insertion of the IV. The physician, nurse, or EMT is required to
examine the prisoner physically using standard clinical techniques to determine that
he is unconscious before the second and third chemicals are administered.
Because of the pain that undoubtedly would be inflicted by the third chemical
if administered without adequate anesthetization, it is imperative for the State to
employ personnel who are properly trained to competently carry out each medical step
of the procedure. The protocol adequately requires trained medical personnel to carry
out these steps and to verify that the IV is working properly. The protocol provides
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no opportunity for personal judgment regarding the proper dose, because the protocol
mandates a dose large enough to render anyone deeply unconscious, as long as it is
delivered properly. The protocol is designed to ensure a quick, indeed a painless,
death, and thus there is no need for the continuing careful, watchful eye of an
anesthesiologist or one trained in anesthesiology, whose responsibility in a hospital's
surgery suite (as opposed to an execution chamber) is to ensure that the patient will
wake up at the end of the procedure. "For exceedingly practical reasons, no State can
carry out an execution in the same manner that a hospital monitors an operation."
Workman v. Bredesen, No. 07-5562, 2007 WL 1311330, at *12 (6th Cir. May 7,
2007), cert. denied, 127 S. Ct. 2160 (May 8, 2007). Absent some specific
disqualifying characteristic of the chosen medical personnel, we would be hard
pressed to say that a physician, a trained nurse, or a licensed pharmacist is not
qualified to mix the chemicals. We know of no decision holding that the Constitution
requires a physician to become the executioner. See generally id. at *12 (stating that
the Constitution does not require the State to hire an anesthesiologist for each
execution); McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir.), cert. denied, 514 U.S.
1104 (1995) (stating, "we are aware of no authority for the proposition that the
prisoner is entitled, for example, to have a lethal injection administered by a
physician").
Neither does the record justify requiring the continuous monitoring of the
anesthetic depth of the inmate by one trained in anesthesia or by additional equipment.
The written protocol requires a 5-gram dose of thiopental to be delivered through a
properly placed and working IV, combined with a three-minute wait and a physical
confirmation of unconsciousness before the last two chemicals are administered. The
experts agree that this dose, successfully delivered, will cause burst suppression in less
than three minutes and last at least 45 minutes, which eliminates any need for further
monitoring. Given the dose of thiopental provided in the protocol, the precautions
taken to ensure it is successfully delivered, the three-minute wait built into the
protocol before administration of the second and third chemicals, the ready
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availability of syringes containing an additional five grams of thiopental, and the
physical examination of the prisoner and the IV site prior to administering the second
and third chemicals, there simply is no realistic need for further monitoring of
anesthetic depth by a physician or sophisticated equipment to prevent a
constitutionally significant risk of pain.
The Constitution does not require the use of execution procedures that may be
medically optimal in clinical contexts. See Hamilton v. Jones, 472 F.3d 814, 816
(10th Cir.), cert. denied, 127 S. Ct. 1054 (2007). "The state has broad discretion to
determine the procedures for conducting an execution . . . ." McKenzie, 57 F.3d at
1469. "[W]e recognize that what could be done to update or even improve the
protocol is not the appropriate legal inquiry to be undertaken by this or any other
reviewing court." Abdur'rahman, 181 S.W.3d at 309. Where the "procedures are
reasonably calculated to ensure a swift, painless death," they are "immune from
constitutional attack," McKenzie, 57 F.3d at 1469, as the Constitution protects only
against the wanton and unnecessary infliction of pain. What the Sixth Circuit said
about the Tennessee protocol is equally true about Missouri's: "The whole point of
the [Missouri] lethal-injection protocol is to avoid the needless infliction of pain, not
to cause it." Workman, 2007 WL 1311330, at *9. The State's written protocol does
not present any substantial foreseeable risk that the inmate will suffer the unnecessary
or wanton infliction of pain. The abundant dose of thiopental, lethal in itself and over
17 times that given for surgeries, combined with built-in checks to ensure that the IV
is properly placed by medical personnel trained for the procedure and that the IV is
working and not obstructed, renders any risk of pain far too remote to be
constitutionally significant. See id. at *12 (noting that the risks of pain in a similar
protocol "remain remote []and do not occur when the procedure is properly
implemented"); Hamilton, 472 F.3d at 816-17 (noting that the risk involved must be
of constitutional magnitude; and denying an injunction upon concluding that the
district court correctly determined, in light of the precautions built into Oklahoma's
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protocol, that the risk of failure to monitor resulting in the alleged pain is far too
remote to rise to a constitutional level).
We emphasize that Mr. Taylor has not adduced evidence at any stage of this
litigation that carries his burden of proving a constitutional violation. We have very
carefully examined the entire record, and we find no evidence to indicate that any of
the last six inmates executed suffered any unnecessary pain that would rise to an
Eighth Amendment violation or that any state actor was deliberately indifferent to the
Constitution's requirement that no unnecessary pain be wantonly inflicted during the
execution process.
III.
We conclude that Missouri's written lethal injection protocol does not violate
the Eighth Amendment. The judgment of the district court is reversed, and the
injunction the district court issued is vacated.
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