Federal Appeals Court Sides with Alabama Prisoners on Lethal-Injection Case, Sends Back to District Court

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.