Sixth Circuit Holds That Appellants Did Not Establish “Likelihood of Success on the Merits” of Their Claim That Ohio's Midazolam-Based, Three-Drug Execution Protocol Presents a Constitutionally Unacceptable Risk of Pain and Suffering
In In re Ohio Execution Protocol Litigation (Campbell v. Kasich) 881 F.3d 447 (6th Cir. 2018), the U.S. Court of Appeals for the Sixth Circuit considered whether Ohio's execution protocol presented a constitutionally unacceptable risk of pain and suffering, both physical and psychological, as alleged by two Ohio death-row inmates. Holding that the inmates did not show likelihood of success on the merits of their claims, the Sixth Circuit affirmed the decision of the U.S. District Court for the Southern District of Ohio, denying the requested injunctions.
Facts of the Case
The litigation that produced this appeal began in 2004, when death-row inmates challenged Ohio's then-existing three-drug protocol under 42 U.S.C. § 1983 (1996). In 2011, after many more method-of-execution claims, all execution protocol cases in the Southern District of Ohio were consolidated under Case No. 2:11-cv-1016, aptly named In re Ohio Execution Protocol Litigation.
In 2016, Ohio adopted an execution protocol consisting of an initial 500-milligram dose of midazolam, followed by a paralytic agent and potassium chloride. In In re Ohio Execution Protocol (Fears v. Morgan), 860 F.3d 881 (6th Cir. 2017), death-row inmates (including Mr. Raymond Tibbetts) subsequently filed suit, claiming that midazolam would not prevent them from the pain caused by the latter drugs, and that Ohio's protocol thus violated the Eighth Amendment. The district court granted preliminary injunctions; however, the Sixth Circuit disagreed that plaintiffs had met their burden and reversed the district court's decision. The Sixth Circuit held that the district court had erred by addressing “only whether Ohio's procedure presents a ‘substantial risk of serious harm’” without also showing that the execution method “is sure or very likely to cause serious pain” (Fears, p 886). While agreeing that the second and third drugs “would cause severe pain to a person who is fully conscious,” the Sixth Circuit found that plaintiffs had not shown that an inmate receiving “a 500-milligram dose of midazolam is ‘sure or very likely’ to be conscious enough to experience serious pain” (Fears, p 886).
In 2017, after the Fears remand, Mr. Campbell and Mr. Tibbetts sought to enjoin their pending executions, similarly alleging that Ohio's protocol presented a constitutionally unacceptable risk of serious pain and suffering, but now claiming a “substantial risk of serious harm” in the form of “severe, needless physical pain and suffering” and “severe mental or psychological pain, suffering, and torturous agony” (In re Ohio Execution Protocol (“Campbell”), No. 2:11-CV-1016, 2017 WL 5020138 at *8).
The district court thus considered whether Mr. Tibbetts and Mr. Campbell had “added sufficient evidence” to show, with a “sure or very likely” level of certainty, that Ohio's execution protocol caused serious pain. After considering the proffered evidence, the district court determined that the plaintiffs had not met their burden and denied their motions for preliminary injunctions and execution stays.
Mr. Campbell and Mr. Tibbets appealed to the Sixth Circuit, claiming that the district court had “refused to consider the significant evidence of mental and psychological suffering” (Campbell, p 450) and that the court was mistaken in finding they had not sufficiently proved their claims.
Ruling and Reasoning
The Sixth Circuit affirmed the district court's decision to deny the requested injunctions.
In its opinion, the Sixth Circuit referred to the four-factor test for obtaining a preliminary injunction, explaining that the “likelihood of success on the merits” was the determinative factor in the present case, citing Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015). The court said the merits determination itself was a two-part test, in which plaintiffs had to show that the protocol “presents a risk that is sure or very likely to cause serious pain and needless suffering” and, if satisfied, then “prove that an alternative method of execution is available, feasible, and can be readily implemented” and “significantly reduces a substantial risk of severe pain” (Campbell, p 449) (citations omitted).
The Sixth Circuit then addressed the claim that the district court had failed to consider evidence of psychological suffering. First, the Sixth Circuit pointed out the district court's consideration of “psychological pain unaccompanied by physical pain” (Campbell, p 450). The district court had presumed that all death-row inmates faced psychological pain when sentenced and anticipating execution, noting that because executions were not per se unconstitutional, it was unclear “how a plaintiff could segregate anxiety from anticipated execution in general from anxiety about execution by a particular method,” and adding, “in any event, no evidence was offered to support a claim that either Campbell or Tibbets suffers particular psychological pain associated with the Execution Protocol” (Campbell, p 450) (citing Campbell, 2017 WL 5020138 at *9).
The appellants argued “this suffering is not mere generalized anxiety in the face of impending death; it is the specific and acute suffering arising from the choking … attendant to the administration of Ohio's Execution Protocol [due] to an inmate['s] [being] insufficiently rendered unconscious, unaware, and insensate to pain,” which the Sixth Circuit viewed as a request “to consider more pain, physical and psychological” (Campbell, p 450). The Sixth Circuit explained that additional psychological pain was “immaterial, given that we had already accepted that the physical pain alone was sufficiently serious” and reiterating the relevant issue as being “the likelihood” that the inmate would be conscious enough to experience the pain (Campbell, p 450).
Discussion
The litigation of the execution protocol in Ohio (and other states) began after a Supreme Court decision in 2004, which allowed method-of-execution claims to be brought under 42 U.S.C. § 1983, Nelson v. Campbell 541 U.S. 637 (2004). The predecessors of In re Ohio Execution Protocol Litigation and the many parallel § 1983 claims (and precedent-setting court decisions) in other states provide context for the Sixth Circuit's reasoning in Campbell v. Kasich, which relied heavily on U.S. Supreme Court precedent set by Baze v. Rees, 553 U.S. 35 (2008), and, later, Glossip v. Gross.
In Baze, the U.S. Supreme Court addressed whether the three-drug execution protocol (a barbiturate followed by a paralytic agent and potassium chloride) used by Kentucky (and many other states including Ohio at the time), violated the Eighth Amendment's ban on cruel and unusual punishments. In a 7-2 decision, the Court upheld Kentucky's execution protocol. The Court conceded, “Some risk of pain is inherent in even the most humane execution method,” but “the Constitution does not demand the avoidance of all risk of pain” (Baze, p 36). The Court rejected the proposed “unnecessary risk” standard, favoring the “substantial risk of serious harm” test, which it said could be met “if the conditions presenting the risk are sure or very likely to cause serious illness and needless suffering and give rise to sufficiently imminent dangers” (Baze, p 36) (quotations omitted). The Court said a proposed alternative procedure “must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain,” adding that it was not enough for a prisoner to challenge an execution method “merely by showing a slightly or marginally safer alternative” (Baze, p 37).
In the years thereafter, death penalty opponents successfully pressured pharmaceutical companies to stop selling barbiturates to states for use in executions, nullifying the feasibility of execution methods using barbiturates and prompting some states to substitute midazolam for the barbiturate in three-drug protocols (Glossip, p 2733).
In Glossip, the U.S. Supreme Court addressed whether Oklahoma's use of a 500-milligram dose of midazolam as the first drug in its three-drug protocol violated the Eighth Amendment, in part arguing that midazolam would not adequately protect an inmate from the pain caused by the protocol's latter drugs, citing medical literature of midazolam's ineffectiveness (at clinical doses). In a 5-4 decision, the Court affirmed the denial of preliminary injunctions, holding that the petitioners had not met their burden to “show Oklahoma's use of a massive dose of midazolam” entailed a “substantial risk of severe pain” (Glossip, p 2731) or that the “risk of harm was substantial when compared with a known and available” alternative (Glossip, p 2727). The Court remarked, “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” (Glossip, p 2742).
In summary, the Sixth Circuit's ruling in In re Ohio Execution Protocol Litigation (Campbell v. Kasich) emphasized that the seriousness of pain involved in execution protocols using a paralytic drug and potassium chloride was already sufficiently established, so that the only remaining issue is the actual likelihood that the protocol as a whole will cause such serious pain. While psychological pain was considered immaterial in the present case, the door was left open for future claims of psychological suffering if that “sure or very likely” level of certainty (of serious pain and needless suffering) could be proved. Forensic psychiatrists may be asked to assist in the determination of the severity of psychological pain and the risk an inmate would experience it due to a particular execution method.
- © 2018 American Academy of Psychiatry and the Law
