The U.S. Court of Appeals for the Eleventh Circuit has issued a rul­ing reviv­ing a law­suit brought by Alabama death-row pris­on­ers that chal­lenged the con­sti­tu­tion­al­i­ty of the state’s three-drug exe­cu­tion pro­to­col using the con­tro­ver­sial lethal-injec­tion drug mida­zo­lam. The unan­i­mous deci­sion by the three-judge fed­er­al appeals pan­el on September 1 reversed a fed­er­al dis­trict court rul­ing against sev­er­al death-row pris­on­ers who sued the Alabama Department of Corrections, alleg­ing that the state’s planned exe­cu­tion process cre­at­ed an unnec­es­sary risk of a tor­tur­ous death that could be elim­i­nat­ed if the state used oth­er avail­able drugs. The low­er fed­er­al court had issued sum­ma­ry judg­ment for the state, find­ing that there was no fea­si­ble and read­i­ly imple­mentable alter­na­tive drug pro­to­col with­out hav­ing first deter­mined whether Alabama’s lethal-injec­tion pro­to­col cre­at­ed a sub­stan­tial risk of pain. In revers­ing the dis­trict court’s deci­sion, the Eleventh Circuit held that the court failed to ​“first mak[e] a find­ing regard­ing the risk of pain, if any, the cur­rent three-drug pro­to­col presents,” say­ing that a court can­not eval­u­ate whether an alter­na­tive reduces a risk if it does not know ​“what that risk is.” The appel­late court returned the case to the dis­trict court for fur­ther fact-find­ing pro­ceed­ings, say­ing res­o­lu­tion of the issue ​“will require the pre­sen­ta­tion of expert opin­ion tes­ti­mo­ny” from both sides. The appeals court also reject­ed the low­er court’s find­ing that pen­to­bar­bi­tal was not avail­able as an alter­na­tive exe­cu­tion drug, not­ing that Texas, Georgia, and Missouri had con­duct­ed numer­ous recent exe­cu­tions with the drug. ​“From these facts it can rea­son­ably be inferred that com­pound­ed pen­to­bar­bi­tal was avail­able” to Alabama, the court said. John Palombi, coun­sel for the pris­on­ers, called the deci­sion encour­ag­ing and said he was ​“very pleased that that the 11th Circuit has rec­og­nized that there are seri­ous ques­tions about the uncon­sti­tu­tion­al­i­ty of this pro­to­col.” He said the pris­on­ers were ​“look­ing for­ward to final­ly get­ting to present evi­dence that we believe will demon­strate that the pro­to­col is uncon­sti­tu­tion­al.” That evi­dence is like­ly to include detailed accounts of botched exe­cu­tions that have used mida­zo­lam, includ­ing Alabama’s exe­cu­tion of Ronald Bert Smith last December, dur­ing which Smith heaved, coughed, and clenched his fist for 13 min­utes after receiv­ing the injec­tion of mida­zo­lam. Alabama cur­rent­ly has two exe­cu­tions sched­uled for October—Jeffrey Borden on October 5 and Torrey McNabb on October 19. Neither of those pris­on­ers is a par­ty to this case, but both have sim­i­lar chal­lenges to the state’s lethal-injec­tion pro­to­col pend­ing on appeal before the Eleventh Circuit. Palombi has indi­cat­ed that Borden and McNabb will ask the Alabama Supreme Court to vacate the sched­uled exe­cu­tion dates in light of the Eleventh Circuit’s rul­ing. [UPDATE: On September 6, Borden and McNabb filed emer­gency motions in the Alabama Supreme Court to vacate their exe­cu­tion dates. Later that day, the 11th Circuit over­turned the dis­trict court’s dis­missal of their lethal injec­tion chal­lenges and remand­ed the case for further proceedings.]

(K. Chandler, ​“11th Circuit rules revives lethal injec­tion law­suit,” Associated Press, September 1, 2017; B. Lyman, ​“Federal court orders new hear­ings in lethal injec­tion chal­lenge,” Montgomery Advertiser, September 1, 2017.) Read the 11th Circuit’s deci­sion in Frazier v. Warden, No. 16 – 16876 (11 Cir. Sept. 1, 2017). See Lethal Injection.

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