Death of the challenge to lethal injection? Missouri's protocol deemed constitutional yet again.

• Author: Maerz, Tanya M.
• Position: NOTE

Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009).

1. INTRODUCTION

   Lethal injection is currently the predominant form of execution nationwide. (1) Most proponents of this method cite the convenience and the humanity of this procedure over past methods of execution. (2) However, lethal injections are fraught with problems such as the specificity and safety of the written procedures themselves, implementation of such procedures, and whether lethal injection and executions in general are constitutional. Most often, prisoners file constitutional challenges to lethal injections under the Eighth Amendment, which prevents imposing cruel and unusual punishment on an American citizen. (3)

   One of the more recent cases in Missouri cited such a challenge to the implementation of Missouri's lethal injection guidelines. (4) Missouri revised its guidelines in 2006, under a court order to include more specificity and to solidify the process in writing to guarantee uniformity in application of the protocol. (5) Despite the fact that the U.S. Court of Appeals for the Eighth Circuit ultimately upheld the constitutionality of Missouri's new procedure, (6) prisoners continue to challenge its legality in hopes of someday bringing a fruitful claim. Aside from the constitutional questions, lethal injection raises a host of other concerns, most notably the ethical dilemma of including medical personnel on the execution team. The interpretation of these statutes and society's perception of the circumstances surrounding the death penalty and lethal injections remain to be seen as courts continue to examine these issues.

2. FACTS AND HOLDING

   Eight Missouri prisoners filed suit against the State of Missouri through its prison officials, alleging Missouri's lethal injection protocol was unconstitutional. (7) The plaintiffs were condemned to await execution on death row. (8) The prisoners brought a claim under 42 U.S.C. [section] 1983, (9) claiming that the manner in which Missouri conducts lethal injection executions violates the Eighth Amendment. (10) Specifically, the prisoners alleged that previous lethal injection proceedings demonstrated that Missouri failed to take the requisite care and consideration to refrain from imposing cruel and unusual punishment on prisoners. (11)

   Since 2006, Missouri has followed a written execution protocol, detailing the parameters of each lethal injection execution. (12) Prior to this time, Missouri followed an unwritten execution protocol that required medical professionals to administer three drugs, in a specific order, to complete the lethal procedure. (13) These drugs were administered into a vein on the patient's arm through an intravenous line (IV). (14) The procedure began with five grams of sodium pentothal, which causes the prisoner to lose consciousness. (15) Then, sixty milligrams of pancuronium bromide were injected, which paralyzes the muscles in the prisoner's body. (16) Lastly, a doctor injected 240 milliequivalent of potassium chloride into the prisoner's IV tube, thereby stopping his or her heart and resulting in the death of the prisoner. (17) When Missouri was ordered to outline its procedures in written form, the procedure remained substantially the same, including the amounts of each drug administered to the patient and the order in which the drugs were injected. (18)

   In the complaint, the prisoners alleged that Missouri had "a 'well-documented history of employing incompetent and unqualified personnel to oversee [the] crucial element[s] of executions by lethal injection.'" (19) This statement referred to previous executions in which Missouri employed a medical professional who admitted that he did not keep accurate logs of the lethal injections he administered. (20) This medical professional was named "John Doe I" or "Dr. Doe" for purposes of this litigation. (21) Dr. Doe was a licensed and experienced medical professional, yet the prisoners claimed he did not conform to the high standards of the medical profession. (22) In prior litigation involving a similar issue, Dr. Doe admitted that he believed he had the authority, independent of that of the State of Missouri, to change the doses of each chemical administered to the prisoner. (23) He said that he chose the dosage of each chemical based upon "his medical judgment" and the prisoner's appearance during the execution. (24) Dr. Doe claimed he monitored the prisoner's progress throughout the execution "by observing the prisoner's facial expression through a window which was partially obstructed by blinds." (25) In addition to these problems, the prisoners in the instant case primarily accosted Dr. Doe's "medical licensure problems." (26) They also complained of the inadequate assistance of the nurse (Nurse Doe), claiming she was unqualified because she was unable to tell that Dr. Doe routinely altered the dosages of each chemical. (27)

   To remedy these problems, the court demanded that Missouri implement a new policy that eventually resulted in its current written protocol. (28) Apposite cases have found Missouri's current execution guidelines consistent with constitutional requirements. (29) The prisoners did not challenge these cases, nor did they challenge the constitutionality of the outlined procedures themselves. (30) Instead, the prisoners claimed that Missouri's history of employing unqualified and inept medical "professionals" meant that the State would "continue to employ such incompetent and unfit personnel for future executions." (31) The prisoners argued that there remained an unjust and substantial risk that prison officials and medical personnel would not follow the constitutional, written protocol. (32) They claimed that failure to follow the written protocol could result "in the condemned prisoners being insufficiently anesthetized and suffering extreme pain before their deaths." (33) Due to the uncertainty based on previous actions, the prisoners contended that Missouri's lethal injection protocol violated the Eighth Amendment. (34)

   Missouri moved for a judgment on the pleadings, claiming that the protocol was constitutional and that any speculation as to implementation was insufficient to sustain the prisoners' claim. (35) Initially, the district court denied Missouri's motion, but it later revisited the motion sua sponte and granted it. (36) The plaintiffs appealed this ruling to the Eighth Circuit, which affirmed the district court's decision. (37) After the original eight petitioners filed suit in the district court, three other condemned prisoners sought to intervene as plaintiffs in the action. (38) The district court denied the motions of these three potential plaintiffs, prompting an appeal of the ruling. (39) The Eighth Circuit rejected the interveners' contentions on appeal and affirmed the district court's denial of their motions. (40) The Eighth Circuit also affirmed the district court's ruling that Missouri's written protocol is a constitutional execution procedure and that any contention that the procedure might be implemented incorrectly is too speculative to maintain a constitutional challenge. (41)

3. LEGAL BACKGROUND

   1. The United States

      In the late 1960s, the United States experienced a moratorium on capital punishment as a result of the Supreme Court's decision in Furman v. Georgia. (42) Furman was a review of three cases, one involving a conviction of murder and the other two examining convictions of rape. (43) All three defendants received death sentences and appealed, citing violations of the Eighth (44) and Fourteenth (45) Amendments to the Constitution. (46) Upon review, a five-to-four decision of the Supreme Court found the states' current use of the death penalty unconstitutional. (47) It ultimately ruled that the state statutes prescribing executions violated the Eighth Amendment's ban on cruel and unusual punishment. (48) This decision cast doubt on the constitutionality of the way all states implemented the death penalty. (49)

      After the Supreme Court's decision, it was unclear whether creating statutes with more specificity would remedy the problem or if executions as a form of punishment were de facto unconstitutional. (50) over the next few years, states tried to amend their statutes to comport with the requirements alluded to in Furman, while the Supreme Court attempted to elucidate acceptable procedures. (51) Statutes upheld as constitutional gave considerable discretion to juries, limited the categories of eligible defendants, and clearly defined the aggravating and mitigating factors. (52)

      While states amended current death penalty statutes, legislators also became interested in new methods of execution. originally, some states hanged prisoners sentenced to death. (53) When public sentiment expressed distaste for this method, many states invoked the electric chair, which offered a more "humane" way to die through a quick jolt of electricity. (54) However, frequent botched executions horrified prison officials, prisoners, and the public alike. (55) As such, some states shifted to employing the gas chamber as the preferred method; other states used a firing squad to execute prisoners. (56) Public acceptance of these procedures eventually waned, causing wardens and legislators alike to look for a new direction. (57) In 1977, Dr. Stanley Deutsch refined the procedure known as the lethal injection. (58) Lethal injection is now the prescribed method of execution in the majority of states. (59)

   2. Missouri

      Missouri originally enacted its capital punishment law in 1939. (60) Missouri amended its law in 197761 and again in 1988, when the legislature formally adopted procedures relatively similar to those still in place today. (62) The Missouri statute declares that "[t]he manner of inflicting the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection." (63) When the capital punishment statute was enacted, lethal...