In the Matter of the Federal Bureau of Prisons' Execution Protocol Cases ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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In the Matter of the )
Federal Bureau of Prisons’ Execution )
Protocol Cases, )
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LEAD CASE: Roane, et al. v. Barr ) Case No. 19-mc-145 (TSC)
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THIS DOCUMENT RELATES TO: )
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Lee v. Barr, et al., 19-cv-2559 )
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Purkey v. Barr, et al., 19-cv-3214 )
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Nelson v. Barr, et al., 20-cv-557 )
)
MEMORANDUM OPINION
In Callins v. Collins, Justice Blackmun, writing in dissent, declared that he would “no
longer . . . tinker with the machinery of death.” 510 U.S. 1141, 1145 (1994). More than twenty-
five years later, this court is tasked with doing just that, in addressing challenges to the manner in
which the federal government seeks to execute inmates who have been sentenced to death under
federal statutes.
After a hiatus in federal executions of more than fifteen years, on July 25, 2019, the U.S.
Department of Justice (DOJ) announced plans to execute five inmates who had been sentenced to
death under the federal death penalty statute. 1 See Press Release, Dep’t of Justice, Federal
Government to Resume Capital Punishment After Nearly Two Decade Lapse (July 25, 2019),
https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-
1
Plaintiffs Bourgeois, Mitchell, Lee, and Purkey were sentenced under the Federal Death
Penalty Act, 18 U.S.C. §§ 3591–3599. Plaintiff Honken was sentenced under the Anti-Drug
Abuse Act of 1988, 21 U.S.C. § 848(e).
1
decade-lapse. To implement these executions, the Federal Bureau of Prisons (BOP) adopted a
new execution protocol: the 2019 Protocol. (ECF No. 39-1, Admin. R. at 1021–75.)
On November 20, 2019, the court preliminarily enjoined the executions of four inmates:
Alfred Bourgeois, Daniel Lewis Lee, Dustin Lee Honken, and Wesley Ira Purkey. (ECF No. 50,
Mem. Op. (2019 Order), at 15.) The court found that these four Plaintiffs had demonstrated a
likelihood of success on the merits of their claims that the 2019 Protocol violates the Federal
Death Penalty Act (FDPA), but the court did not rule on their other statutory and constitutional
claims. (Id. at 13–14.) In April of this year, a divided D.C. Circuit panel vacated the preliminary
injunction. In re Fed. Bureau of Prisons’ Execution Protocol Cases, 955 F.3d 106, 113 (D.C.
Cir. 2020), cert. denied sub nom. Bourgeois v. Barr, No. 19-1348, 2020 WL 3492763 (June 29,
2020). That Court based its ruling solely on the Plaintiffs’ claims under the FDPA and the APA,
and noted that “regardless of our disposition, several claims would remain open on remand.”
Execution Protocol Cases, 955 F.3d at 113 (per curiam).
On June 15, 2020, the DOJ and BOP scheduled new execution dates for three of the four
Plaintiffs whose executions had been preliminarily enjoined by the 2019 Order. (ECF No. 99,
Defs. Notice Regarding Execution Dates.) Defendants intend to execute Lee on July 13, 2020,
Purkey on July 15, 2020, and Honken on July 17, 2020. (Id.) Keith Dwayne Nelson is
scheduled for execution on August 28, 2020. (Id.)
Because these four Plaintiffs are scheduled to be executed before their claims can be fully
litigated, they have asked this court, pursuant to Federal Rule of Civil Procedure 65 and Local
Rule 65.1, to preliminarily enjoin Defendants from executing them while they litigate their
remaining claims. (ECF No. 102, Pls. Mot. for Prelim. Inj.)
2
On July 2, 2020, the Seventh Circuit stayed Purkey’s execution, and at the time of this
filing, that stay remains in place. 2 Purkey v. United States, No. 19-3318, 2020 WL 3603779 (7th
Cir. July 2, 2020). On July 10, 2020, the Southern District of Indiana preliminarily enjoined
Lee’s execution, see Peterson v. Barr, No. 2:20-cv-350 (S.D. Ind. July 10, 2020), ECF No. 21,
but on July 12, 2020, the Seventh Circuit vacated the injunction. See Peterson v. Barr, No. 20-
2252 (7th Cir. July 12, 2020).
The last-minute nature of this ruling is unfortunate, but no fault of the Plaintiffs. Cf.
Bucklew v. Precythe, 139 S. Ct. 112, 1134 (2019) (“the last-minute nature of an application that
could have been brought earlier . . . may be grounds for denial of a stay.”) (internal quotations
omitted). The succession of last-minute rulings is the result of the Government’s decision to set
short execution dates even as many claims, including those addressed here, were pending. 3 The
Government is entitled to choose dates, but the court cannot take short cuts in its obligations in
order to accommodate those dates. As the Seventh Circuit wrote last week, “just because the
death penalty is involved is no reason to take shortcuts—indeed, it is a reason not to do so.”
Purkey v. United States, 2020 WL 3603779, at *11.
I. BACKGROUND
The Eighth Amendment to the Constitution provides that “excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
2
Because the Seventh Circuit affirmed the district court’s denial of Purkey’s petition for writ of
habeas corpus, and only temporarily stayed his execution “pending the completion of
proceedings in the Seventh Circuit,” this court finds it appropriate to preliminarily enjoin his
execution as well as those of the other Plaintiffs. Id. at *11.
3
Three Plaintiffs filed complaints shortly after the DOJ announced the 2019 Protocol, months
before their initially scheduled executions, and Nelson filed his complaint before Defendants
even announced his execution date.
3
CONST. amend. VIII. The Supreme Court declared capital punishment constitutional in 1976,
in Gregg v. Georgia. 428 U.S. 153, 187 (1976) (lifting a de facto moratorium on the death
penalty). Therefore, “there must be a constitutional means of carrying it out.” Glossip v. Gross,
135 S. Ct. 2726, 2732–33 (2015) (citation omitted). Balancing the constitutional legitimacy of
capital punishment with the Eighth Amendment’s prohibition on cruel and unusual methods of
execution has long been the subject of intense debate and litigation since the advent of hanging,
electrocution, and, most recently, lethal injection. Baze v. Rees, 553 U.S. 35, 41–42 (2008).
The Supreme Court first addressed the application of the Eighth Amendment to lethal
injection in Baze, upholding Kentucky’s then-practice of execution by injection with a three-drug
combination: (1) sodium thiopental, a fast-acting barbiturate sedative; (2) pancuronium bromide,
a paralytic agent that paralyzes the body and stops the lungs; and (3) potassium chloride, which
induces cardiac arrest. Id. at 44. The plaintiffs in that case conceded that, if administered
properly, the three drugs in combination eliminated any “meaningful risk” that the inmate would
experience severe pain but argued that the risk of improper administration was so significant that
the protocol violated the Eighth Amendment. Id. at 49.
Although the Court upheld Kentucky’s use of the three-drug injection in Baze, state
methods have changed in recent years. Many of the companies that manufacture drugs such as
sodium thiopental have either ceased production or declined to sell them to states for use in
executions. Glossip, 135 S. Ct. at 2733. Some states have sought to maintain their three-drug
protocols while replacing sodium thiopental with sedatives such as propofol, pentobarbital
sodium, and midazolam, the latter of which was upheld by the Supreme Court in Glossip. Id. at
2731. Other states have opted to conduct executions with a single-drug protocol consisting of a
lethal dose of a single sedative. Bucklew v. Precythe, 139 S. Ct. 1112, 1120 (2019).
4
The federal government has likewise changed its execution protocol. In 2005, three
federal death row inmates sued, alleging that their executions were to be administered under an
unlawful and unconstitutional execution protocol. Roane v. Gonzales, 1:05-cv-02337 (D.D.C.),
ECF No. 1 ¶ 2. The court preliminarily enjoined their executions. Roane, ECF No. 5. Four
other death row inmates intervened, and their executions were enjoined as well. See Roane, ECF
Nos. 23, 27, 36, 38, 67, and 68. During this litigation, the government produced a 50-page
document (2004 Main Protocol) outlining BOP execution procedures. Roane, ECF No. 179-3.
The government then produced two three-page addenda to the 2004 Main Protocol. See Roane,
ECF No. 177-3 (Addendum to Protocol, July 1, 2007) (the 2007 Addendum); ECF No. 177-1
(Addendum to Protocol, Aug. 1, 2008) (the 2008 Addendum). In 2011 the DOJ announced that
the BOP did not have the drugs it needed to implement the 2008 Addendum. See Letter from
Office of Attorney General to National Association of Attorneys General, (Mar. 4, 2011),
https://files.deathpenaltyinfo.org/legacy/documents/2011.03.04.holder.letter.pdf. The
government informed the court that the BOP “has decided to modify its lethal injection protocol
but the protocol revisions have not yet been finalized.” Roane, ECF No. 288 at 2. In response,
the court stayed the Roane litigation.
No further action was taken in the cases for over seven years. On July 24, 2019, the DOJ
announced a new addendum to the execution protocol, (Admin. R. at 874–78), replacing the
three-drug protocol of the 2008 Addendum with a single drug: pentobarbital sodium. (Id. at
879–80.) The BOP also adopted a new protocol to replace the 2004 Main Protocol. (Id. at
1021–72.) The 2019 Protocol provides for three injections, the first two containing 2.5 grams of
pentobarbital in 50 milliliters of diluent each, and the third containing 60 milliliters of a saline
flush. (Id. at 880.) The 2019 Protocol makes no reference to the form or source of the drug, or
5
measures of quality control, and its description of the intravenous administration of the drug
simply provides that the Director or designee “shall determine the method of venous access” and
that “[i]f peripheral venous access is utilized, two separate lines shall be inserted in separate
locations and determined to be patent by qualified personnel.” (Id.)
Following this announcement, the court held a status conference in Roane on August 15,
2019. (See Minute Entry, Aug. 15, 2019.) In addition to the Roane plaintiffs, the court heard
from counsel for three other death row inmates, all of whom cited the need for additional
discovery on the new protocol. (See ECF No. 12, Status Hr’g Tr.) The government indicated
that it was unwilling to stay the executions, and the court bifurcated discovery and ordered
Plaintiffs to complete 30(b)(6) depositions by February 28, 2020, and to file amended complaints
by March 31, 2020. (See Minute Entry, Aug. 15, 2019.)
Four inmates with scheduled execution dates filed complaints or motions to intervene in
the Roane action challenging the 2019 Protocol, and they each subsequently moved to
preliminarily enjoin their executions. 4 On November 20, 2019, the court granted the four
Plaintiffs’ motions for preliminary injunction, finding that they had demonstrated a likelihood of
success on their claims that the 2019 Protocol exceeds statutory authority. (Mem. Op. at 13, 15.)
The court did not rule on Plaintiffs’ other claims, including that the 2019 Protocol is arbitrary
and capricious under the Administrative Procedure Act (APA), that it violates the Food, Drug,
4
Lee filed his complaint on August 23, 2019 (see Lee v. Barr, 1:19-cv-02559 (D.D.C.), ECF No.
1), and his motion for a preliminary injunction on September 27, 2019. (ECF No. 13, Lee Mot.
for Prelim. Inj.) On August 29, 2019, Bourgeois moved to preliminarily enjoin his execution.
(ECF No. 2, Bourgeois Mot. for Prelim. Inj.) Honken filed an unopposed motion to intervene in
Lee v. Barr, which was granted. (ECF No. 26, Honken Mot. to Intervene.) He then moved for a
preliminary injunction on November 5, 2019. (ECF No. 29, Honken Mot. for Prelim. Inj.)
Purkey filed a complaint and a motion for a preliminary injunction under a separate case number,
1:19-cv-03214, which was consolidated with Roane. (ECF No. 34, Purkey Mot. for Prelim. Inj.)
6
and Cosmetic Act (FDCA) and the Controlled Substances Act (CSA), that it violates Plaintiffs’
right to counsel in violation of the First, Fifth, and Sixth Amendments, and that it is cruel and
unusual in violation of the Eighth Amendment. (Id. at 13.) Following the court’s order, three
additional death row inmates filed complaints under separate case numbers, which in turn were
consolidated with Roane. 5 Defendants moved to stay the court’s preliminary injunction, which
the court denied. (See Minute Order, Nov. 22, 2019.) The D.C. Circuit likewise denied
Defendants’ motion to stay, In re Fed. Bureau of Prisons’ Execution Protocol Cases, No. 19-
5322 (D.C. Cir. Dec. 2, 2019), as did the United States Supreme Court on December 6, 2019.
Barr v. Roane, 140 S. Ct. 353 (2019). However, three Justices issued a statement indicating their
belief that Defendants were likely to prevail on the merits. Id.
Defendants also filed an interlocutory appeal of the court’s 2019 Order on November 21,
2019. (See ECF No. 52.) On April 7, 2020, the D.C. Circuit reversed. Execution Protocol
Cases, 955 F.3d at 108. Neither of the two judges on the panel who voted to reverse agreed on
the FDPA’s statutory requirements. Id. at 112 (per curiam). Nonetheless, they agreed that
Plaintiffs were unlikely to prevail on the merits of their claims that the 2019 Protocol exceeds
statutory authority. Id. The panel expressly declined to rule on Plaintiffs’ remaining statutory
and constitutional claims, as “the government did not seek immediate resolution of all the
plaintiffs’ claims” and the claims “were neither addressed by the district court nor fully briefed
in this Court.” Id. at 113. The Court of Appeals denied Plaintiffs’ petition for rehearing en banc
on May 15, 2020, and the Supreme Court denied Plaintiffs’ application for a stay of the mandate
and petition for a writ of certiorari on June 29, 2020. Bourgeois, 2020 WL 3492763.
5
These plaintiffs are Norris G. Holder, Jr., 1:19-cv-3520; Brandon Bernard, 1:20-cv-474; and
Keith Dwayne Nelson, 1:20-cv-557.
7
Meanwhile, Plaintiffs filed their Amended Complaint on June 1, 2020, (ECF No. 90, Am.
Compl.), the same day Holder filed a separate supplemental complaint. (ECF No. 94, Holder
Compl.)
On June 15, 2020, the DOJ announced new execution dates for Plaintiffs. (Defs. Notice
Regarding Execution Dates.) Four days later, Plaintiffs filed a joint motion for a preliminary
injunction on the basis of their unresolved claims. (Pls. Mot. for Prelim. Inj.) Plaintiffs thus ask
the court to preliminarily enjoin Defendants from executing Lee, Purkey, Honken, and Nelson
while they litigate their claims.
II. ANALYSIS
The court’s 2019 Order sets forth the legal standard for considering a motion for a
preliminary injunction, which is an “extraordinary remedy” requiring courts to assess four
factors: (1) the likelihood of the plaintiff’s success on the merits, (2) the threat of irreparable
harm to the plaintiff absent an injunction, (3) the balance of equities, and (4) the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 24 (2008) (citations omitted); John Doe
Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017). The D.C. Circuit has
traditionally evaluated claims for injunctive relief on a sliding scale, such that “a strong showing
on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d
388, 392 (D.C. Cir. 2011). It has been suggested, however, that a movant’s showing regarding
success on the merits “is an independent, free-standing requirement for a preliminary
injunction.” Id. at 393 (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296
(D.C. Cir. 2009) (Kavanaugh, J., concurring)).
8
A. Likelihood of Success on the Merits of Plaintiffs’ Eighth Amendment Claims
Plaintiffs bringing an Eighth Amendment challenge to the method of execution face a
high bar. They must demonstrate that the 2019 Protocol presents a “substantial risk of serious
harm,” and they must identify an alternative method of execution that will significantly reduce
the risk of serious pain and that is feasible and readily implemented. Glossip, 135 S. Ct. at 2737;
see also Bucklew, 139 S. Ct. at 1129 (confirming that “anyone bringing a method of execution
claim alleging the infliction of unconstitutionally cruel pain must meet the Baze-Glossip test.”).
1. Substantial Risk of Serious Harm
It is not enough for Plaintiffs to argue that Defendants’ planned use of pentobarbital will
potentially cause pain. “[B]ecause some risk of pain is inherent in any method of execution, we
have held that the Constitution does not require the avoidance of all risk of pain.” Glossip, 135
S. Ct. at 2733. For the 2019 Protocol to constitute cruel and unusual punishment in violation of
the Eighth Amendment, Plaintiffs must show that it presents a risk of severe pain that is “sure or
very likely to cause serious illness and needless suffering” and gives rise to “sufficiently
imminent dangers,” such that prison officials cannot later plead “that they were subjectively
blameless.” Baze, 553 U.S. at 49–50 (citations omitted). Although the Supreme Court has
cautioned against federal courts becoming “boards of inquiry charged with determining ‘best
practices’ for executions,” id. at 51, this question necessarily requires some weighing of
scientific evidence. See, e.g., Glossip, 135 S. Ct. at 2739 (affirming district court’s findings that
midazolam was “highly likely” to render inmates unable to feel pain during execution).
The scientific evidence before the court overwhelmingly indicates that the 2019 Protocol
is very likely to cause Plaintiffs extreme pain and needless suffering during their executions.
The declarations submitted by Plaintiffs’ experts illustrate that the majority of inmates executed
9
via pentobarbital injection suffered flash pulmonary edema during the procedure. (See ECF No.
26-12, Expert Decl. of Mark Edgar, ¶ 74; ECF No. 24, Expert Decl. of Gail Van Norman,
Autopsy Findings, at 85.) Pulmonary edema, which interferes with breathing, “produces
sensations of drowning and asphyxiation” resulting in “extreme pain, terror and panic.” (Edgar
Decl., ¶¶ 78–80.)
Eyewitness accounts of executions using pentobarbital describe inmates repeatedly
gasping for breath or showing other signs of respiratory distress, and indicate that flash
pulmonary edema is common and extremely painful. (Id.) Dr. Gail Van Norman concluded that
it is a “virtual medical certainty that most, if not all, prisoners will experience excruciating
suffering, including sensations of drowning and suffocation” during an execution conducted in
accordance with the 2019 Protocol. (Van Norman Decl. ¶ 18.)
Defendants urge the court to disregard these findings. They first contend that the
Supreme Court has already upheld similar methods of execution, and that the pain associated
with pulmonary edema is not severe enough to render the 2019 Protocol unconstitutional. (See
ECF No. 113-1, Defs. Opp. to Pls. Mot., at 22–25.) But the cases upon which Defendants rely
are inapposite. Neither Baze nor Glossip involved a single-drug protocol or the use of
pentobarbital, and the fact that some plaintiffs in those and other cases suggested that
pentobarbital would be a constitutional alternative does not invalidate the expert testimony
before the court, which indicates otherwise. Glossip, 135 S. Ct. at 2738; Baze, 553 U.S. at 56–
57. Bucklew did involve a challenge to pentobarbital, but one unique to that plaintiff’s medical
condition—he argued that vascular tumors caused by his cavernous hemangioma would prevent
the pentobarbital from working as intended, and thus brought an as-applied challenge to a
procedure that he conceded was “constitutional in most applications.” 139 S. Ct. at 1118, 1120.
10
Plaintiffs, of course, concede no such thing, and in fact allege the opposite. (See Pls. Mot. for
Prelim. Inj. at 34.)
Defendants also urge the court to follow the Sixth Circuit’s recent decision, In re Ohio
Execution Protocol Litigation, which rejected an Eighth Amendment claim based on the risk of
pulmonary edema during execution, and which Plaintiffs claim misinterpreted Bucklew. 946
F.3d 287 (6th Cir. 2019), (Pls. Mot. for Prelim. Inj. at 35 n.12.) Defendants initially relied on the
Sixth Circuit’s holding that “neither pulmonary edema nor the symptoms associated with it
qualify as the type of serious pain prohibited by the Eighth Amendment,” but after the first round
of briefing in this case last year, the Sixth Circuit issued an amending and superseding opinion
omitting this language. Compare 937 F.3d 759, 762 (6th Cir. 2019), with 946 F.3d at 290.
Although the Sixth Circuit’s amended opinion does suggest that the risk of pain associated with
sensations of drowning and suffocation is akin to that of hanging, it does not reach a conclusion
as to whether pulmonary edema can result in pain that is so severe as to violate the Eighth
Amendment. 946 F.3d at 290.
In any event, this case is factually distinct from Ohio Execution Protocol. That case not
only involved a different execution protocol using a different drug—a three-drug protocol
employing midazolam as the first drug rather than a one-drug protocol relying exclusively on
pentobarbital—but it held that the plaintiff had failed to provide “evidence showing that a person
deeply sedated by a 500 milligram dose of midazolam is still ‘sure or very likely’ to experience
an unconstitutionally high level of pain.” Id. Here, Plaintiffs have amassed an extensive factual
record, and their experts have concluded that there is a “virtual medical certainty” that the 2019
Protocol will result in “excruciating suffering.” (Van Norman Decl. at 7.)
11
Defendants do not contest Plaintiffs’ evidence that the majority of individuals executed
via pentobarbital suffer flash pulmonary edema, but they have submitted expert testimony
arguing that the pulmonary edema occurs either post-mortem or after the inmate has been
rendered insensate. (See Defs. Opp. to Pls. Mot. at 12–13; ECF No. 111-4, Expert Decl. of
Joseph Antognini, ¶ 8.) Thus, the question of whether the 2019 Protocol is significantly likely to
cause serious pain turns on the narrower question of whether the pentobarbital is likely to render
inmates insensate or dead before they experience the symptoms of pulmonary edema.
Plaintiffs have the better of the scientific evidence on this question. Dr. Van Norman
demonstrates that flash pulmonary edema can only occur in still-living subjects, and that it
develops “almost instantaneously” following injection. (ECF No. 117-1, Supp. Decl. of Gail
Van Norman, ¶¶ 19–24.) Defendants argue that Plaintiffs concede that pentobarbital renders
patients insensate very rapidly, (Defs. Opp. to Pls. Mot. at 12), but the evidence indicates no such
concession. Dr. Van Norman specifically states that barbiturates like pentobarbital render
patients “unresponsive” but still conscious and capable of experiencing the severe pain
associated with flash pulmonary edema. (Van Norman Supp. Decl. ¶¶ 10–13, 21.) While Dr.
Antognini disputes these findings, he does not undermine them. (See ECF No. 122-2, Supp.
Decl. of Joseph Antognini, ¶¶ 20–23.) Dr. Van Norman’s conclusion is also supported by
eyewitness accounts of previous executions using pentobarbital, in which inmates visibly gasped
for breath, and autopsies that revealed “foam or froth” in the inmates’ airways, a phenomenon
that occurs when the edema fluid mixes with air while the inmate is still attempting to breathe.
(See, e.g., Edgar Decl. ¶¶ 78–79.)
While it is difficult to weigh competing scientific evidence at this relatively early stage,
the factual record indicates that Plaintiffs are likely to succeed on the merits of their claims that
12
the 2019 Protocol poses a substantial risk of serious pain. They have thus met the first prong of
their burden on their Eighth Amendment claims.
2. Known and Available Alternatives
Plaintiffs argue that several alternative methods of execution will significantly reduce the
substantial risk of serious pain. (Pls. Mot. for Prelim. Inj. at 36–40.)
Procedural safeguards. Plaintiffs claim Defendants could implement a number of
procedural safeguards, including (1) requiring the use of two functioning peripheral IV lines and
placing limits on the use of a central line, (2) administering the lethal-injection protocol bedside,
and (3) implementing additional procedures to respond to unexpected occurrences. (Id. at 37–
39.)
Defendants correctly characterize these proposals as mere “failsafes” that do not render
the planned method of execution unconstitutional. Baze, 553 U.S. at 60–61. Plaintiffs’ proposal
regarding the placement of IV lines is the type of “slightly or marginally safer alternative” that
the Supreme Court has previously rejected. Id. at 51. Moreover, the vague suggestion of adding
procedures to better respond to problems that may arise during the execution seems aimed at an
“isolated mishap,” rather than the substantial risk of serious pain from the use of pentobarbital.
See id. at 50. The alleged benefits of bedside administration of pentobarbital are likewise aimed
at reducing the risk of maladministration. (See Pls. Mot. for Prelim. Inj., at 38–39.) In sum, it
appears likely that implementing these measures would result in a “minor reduction in risk” at
best. Bucklew, 139 S. Ct. at 1130.
Pre-dose of opioid pain or anti-anxiety medication. Plaintiffs have demonstrated that a
pre-dose of certain opioid pain medication drugs, such as morphine or fentanyl, will significantly
reduce the risk of severe pain during the execution. (Pls. Mot. for Prelim. Inj. at 36–37; ECF No.
13
25, Expert Decl. of Craig Stevens, ¶¶ 15–16.) Defendants argue that this proposal lacks
sufficient detail, that no state currently uses analgesics in its execution procedures, and that
pentobarbital alone is sufficiently painless. (Defs. Opp. to Pls. Mot. at 32.)
This court has already found that pentobarbital alone poses an unconstitutionally
significant risk of serious pain, and it finds Defendants’ remaining arguments to be unavailing.
While Bucklew emphasized that a proposed alternative method of execution must be not just
“theoretically feasible but also readily implemented,” this simply means that the proposal must
be “sufficiently detailed to permit a finding that the State could carry it out relatively easily and
reasonably quickly.” 139 S. Ct. at 1129 (internal quotation marks omitted). See also id. at 1128
(noting that the burden of identifying an alternative means of execution “can be overstated.”).
The class of medications identified by Plaintiffs, and the proposed dosage of morphine and
fentanyl more specifically, meet this standard. (Stevens Decl. ¶¶ 7–16.)
The fact that other states have not adopted Plaintiffs’ proposed method of using pain
medication is also not dispositive. See Bucklew, 139 S. Ct. at 1136 (Kavanaugh, J., concurring)
(“I write to underscore the Court’s additional holding that the alternative method of execution
need not be authorized under current state law. . . . Importantly, all nine Justices today agree on
that point.”).
Defendants argue that as in Bucklew and Baze, Plaintiffs’ proposed alternative has “no
track record of successful use,” id. at 1130, and is “untried and untested.” Baze, 553 U.S. at 41.
But this case presents a different scenario. In Bucklew, the plaintiff proposed execution by
nitrogen hypoxia, but even after “extensive discovery,” he provided only a “bare-bones”
proposal premised on “unsupported, if not affirmatively contradicted” assertions regarding its
effectiveness. 139 S. Ct. at 1121, 1129–30. In Baze, the plaintiff’s proposal of a one-drug
14
protocol was offered “without any findings on [its] effectiveness” and relied heavily on
comparisons to animal euthanasia. 553 U.S. at 56–58. Here, Plaintiffs’ proposal is simpler, and
is supported by substantial scientific evidence of its effectiveness in non-lethal human treatment.
Moreover, the parties agree that Nebraska recently used a pre-dose of fentanyl for the precise
purpose of reducing the risk of serious pain during an execution. In sum, Plaintiffs have not
proposed a complex medical procedure, lacking in detail and possibly requiring years of further
research, but a simple addition to the execution procedure that is likely to be as effective as it is
easily and quickly administered. See Bucklew, 139 S. Ct. at 1129.
Finally, Defendants contend that the BOP already considered and rejected using fentanyl
in executions, in part due to speculation that manufacturers would refuse to supply it. (Defs.
Opp. to Pls. Mot. at 32.) Although Defendants do not make the same argument regarding the
availability of morphine, it is true that the government cannot be faulted for failing to use a drug
it has been unable to obtain through good-faith efforts. Glossip, 135 S. Ct. at 2738. But
Defendants have provided no evidence of such efforts; they merely assert that manufacturers
would “most likely” resist efforts to use fentanyl in executions. (Admin. R. at 869.) This is a far
cry from showing that they are unable to procure fentanyl for Plaintiffs’ executions.
Firing squad. Alternatively, Plaintiffs proffer execution by firing squad. (Pls. Mot. for
Prelim. Inj. at 39–40.) Because that method of execution is feasible, readily implemented, and
would significantly reduce the risk of severe pain, it satisfies the Blaze-Glossip requirements for
proposed alternatives. Execution by firing squad is currently legal in three states, Utah,
Oklahoma, and Mississippi, and can hardly be described as “untried” or “untested” given its
historical use as a “traditionally accepted method of execution.” Bucklew, 139 S. Ct. at 1125.
15
Furthermore, the last execution by firing squad in the United States occurred just over a decade
ago, on June 18, 2010, in Utah.
Both the historical use of firing squads in executions and more recent evidence suggest
that, in comparison to the 2019 Protocol, execution by firing squad would significantly reduce
the risk of severe pain. See, e.g., Deborah Denno, Is Electrocution an Unconstitutional Method
of Execution? The Engineering of Death Over the Century, 35 Wm. & Mary L. Rev. 551, 688
(1994) (“A competently performed shooting may cause nearly instant death”); Austin Sarat,
Gruesome Spectacles: Botched Executions and America’s Death Penalty 117, App. A. (2014)
(calculating that, of all executions conducted since 1900, executions by firing squad had the
lowest rate of “botched” executions—zero out of thirty-four—of any method).
Defendants point to several cases from other Circuits in which courts appeared skeptical
of these conclusions. (Defs. Opp. to Pls. Mot. at 34–35.) Again, however, they overlook the
Supreme Court’s guidance in Bucklew that a plaintiff’s burden in identifying an alternative
method of execution “can be overstated” and that there is “little likelihood that an inmate facing
a serious risk of pain will be unable to identify an available alternative.” 139 S. Ct. at 1128–29.
Indeed, members of the Court, including at least one Justice in the Bucklew majority, have
opined that the firing squad may be an immediate and sufficiently painless method of execution.
See, e.g., id. at 1136 (Kavanaugh, J., concurring); Arthur v. Dunn, 137 S. Ct. 725, 734 (2017)
(Sotomayor, J., dissenting from denial of cert.) (“In addition to being near instant, death by
shooting may also be comparatively painless.”). Moreover, given that use of the firing squad is
“well established in military practice,” Baze, 553 U.S. at 102 (Thomas, J., concurring),
Defendants are, if anything, more capable than state governments of finding “trained marksmen
16
who are willing to participate,” and who possess the skill necessary to ensure death is near-
instant and comparatively painless. McGehee v. Hutchinson, 854 F.3d 488, 494 (8th Cir. 2017).
Defendants also argue that execution by firing squad is not a “readily available” method
of execution. It is true that, compared to the relative ease with which opioids could be added to
the existing execution protocol, execution by firing squad would mean a complete transformation
of the government’s method of execution. Therefore, Defendants argue, the court should defer
to the government’s “legitimate reasons” for choosing not to adopt the firing squad as a method
of execution—that legitimate reason being that the firing squad is so rarely used. (Defs. Opp. to
Pls. Mot. at 36.)
Defendants’ logic is somewhat circular. See, e.g., Arthur, 137 S. Ct. at 729 (Sotomayor,
J., dissenting from denial of cert.) (reasoning that allowing a state to conduct an unconstitutional
execution simply because it declines to authorize any alternative “cannot be right”). See also
Bucklew, 139 S. Ct. at 1128 (“The Eighth Amendment is the supreme law of the land, and the
comparative assessment it requires can’t be controlled by the State’s choice of which methods to
authorize in its statutes.”). Indeed, Defendants’ argument implicitly asks the court to follow the
Eleventh Circuit’s holding that a proposed alternative method of execution must be authorized
by law. Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1317–18 (11th Cir. 2016). Yet
the Eleventh Circuit acknowledged last year that Bucklew “demonstrates our conclusion in
Arthur was incorrect.” Price v. Comm’r, Ala. Dep’t of Corr., 920 F.3d 1317, 1326 (11th Cir.
2019), cert. denied sub nom. Price v. Dunn, 139 S. Ct. 1542 (2019).
The court declines to opine on whether the firing squad would be an acceptable
alternative method of execution in every case. However, it finds that Defendants could readily
adopt Plaintiffs’ proposal. Even if Bucklew is read as requiring Plaintiffs to plead a method of
17
execution that is currently authorized by at least one state, the firing squad is currently authorized
by three states and was used relatively recently in one. More importantly, the federal
government is uniquely capable of consulting with Utah and adopting its existing protocol.
Defendants’ final argument is that Plaintiffs’ stated preference for execution by firing squad is
insincere. (Defs. Opp. to Pls. Mot. at 37.) But the court notes that Plaintiffs have argued for it at
length, and have adequately shown that it is readily implemented, available, and would
significantly reduce the risk of severe pain. Cf. Bucklew, 139 S. Ct. at 1136 (Kavanaugh, J.,
concurring) (rejecting possibility of execution by firing squad where the plaintiff had chosen not
to plead it as an alternative).
Plaintiffs have identified two available and readily implementable alternative methods of
execution that would significantly reduce the risk of serious pain: a pre-dose of opioid pain or
anti-anxiety medication, or execution by firing squad. Thus, they have established a likelihood
of success on the merits of their claims that the 2019 Protocol’s method of execution constitutes
cruel and unusual punishment in violation of the Eighth Amendment. Given this finding, the
court need not reach Plaintiffs’ other remaining claims. 6
6
The court is mindful of the prudential rule that when a case can be decided on purely statutory
grounds, courts should avoid constitutional questions. See Ashwander v. Tenn. Valley Auth., 297
U.S. 288, 347 (1936) (Brandeis, J., concurring). But this “is a rule of prudence, not an absolute
command.” Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 351 (4th Cir. 2018)
(Harris, J., concurring) (citations omitted), vacated on other grounds, 138 S. Ct. 2710 (2018); see
also Trump v. Hawaii, 138 S. Ct. 2392, 2434 (2018) (Sotomayor, J., dissenting) (“That rule of
thumb is far from categorical, and it has limited application where, as here, the constitutional
question proves far simpler than the statutory one.”). Plaintiffs’ remaining statutory claims raise
novel and complex questions that, as Defendants themselves note repeatedly, could result in far-
reaching and unpredictable consequences. In contrast, Plaintiffs’ Eighth Amendment claims
require the court to preliminarily enjoin the 2019 Protocol for the “more fundamental reason”
that it creates an unconstitutionally significant risk of serious pain. Id.
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B. Irreparable Harm
The court’s analysis of irreparable harm is unchanged from its 2019 Order. In order to
prevail on a request for preliminary injunction, irreparable harm “must be certain and great,
actual and not theoretical, and so imminent that there is a clear and present need for equitable
relief to prevent irreparable harm,” and it “must be beyond remediation.” League of Women
Voters of U.S. v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016) (citing Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)) (internal quotation marks and
brackets omitted). Here, without injunctive relief, Plaintiffs would be unable to pursue their
remaining claims, including the claims that the method of planned execution under the 2019
Protocol is cruel and unusual in violation of the Eighth Amendment, and would therefore be
executed under a procedure likely to be unconstitutional. This harm is manifestly irreparable.
Other courts in this Circuit have found irreparable harm in similar, but less dire
circumstances. See, e.g., Damus v. Nielsen, 313 F. Supp. 3d 317, 342 (D.D.C. 2018) (finding
irreparable injury where plaintiffs faced detention under challenged regulations); Stellar IT Sols.,
Inc. v. USCIS, No. 18-2015 (RC), 2018 WL 6047413, at *11 (D.D.C. Nov. 19, 2018) (finding
irreparable injury where plaintiff would be forced to leave the country under challenged
regulations); FBME Bank Ltd. v. Lew, 125 F. Supp. 3d 109, 126–27 (D.D.C. 2015) (finding
irreparable injury where challenged regulations would threaten company’s existence); N.
Mariana Islands v. United States, 686 F. Supp. 2d 7, 19 (D.D.C. 2009) (finding irreparable
injury where challenged regulations would limit guest workers). No member of the D.C. Circuit
panel on appeal challenged the court’s finding in its 2019 Order that Plaintiffs would suffer
irreparable harm absent preliminary relief, and Defendants do not dispute that irreparable harm is
likely.
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Based on the record before it, the court finds that Plaintiffs have shown that absent
injunctive relief, they will suffer the irreparable harm of being executed under a likely
unconstitutional procedure before their claims can be fully adjudicated.
C. Balance of Equities
Defendants argue that if the court preliminarily enjoins the 2019 Protocol, they will suffer
the harm of having to delay the scheduled execution dates. (See Defs. Opp. to Pls. Mot. at 57.)
The government’s interest in the finality of criminal proceedings, including capital cases, is
compelling. Calderon v. Thompson, 523 U.S. 538, 556 (1998). On the other hand, the fact that
the government waited eight years to establish a new protocol undermines its arguments
regarding the urgency and weight of that interest. The government may have had valid reasons
to proceed with caution, but it can hardly now claim that any further delay would cause it
substantial harm. The court notes that while almost eight months have passed since its 2019
Order, Plaintiffs still have not been afforded sufficient opportunity to evaluate the 2019
Protocol—it was Defendants who initially declined to stay Plaintiffs’ executions to allow
discovery on the Protocol. (Status Hr’g Tr. at 6, 10–11.)
Indeed, where the Supreme Court has been sympathetic to the government’s need for
finality in capital cases, it has generally been in cases where plaintiffs waited until the last
minute to bring claims that could have been brought earlier, or engaged in a clear “attempt at
manipulation” of the judicial process. Bucklew, 139 S. Ct. at 1134 (quoting Hill v. McDonough,
547 U.S. 573, 584 (2006)). Here, however, three of the four Plaintiffs filed their complaints
shortly after the DOJ announced the 2019 Protocol, months before their initially scheduled
executions, and Nelson filed his complaint before Defendants even announced his execution
20
date. Plaintiffs are not raising new claims that they could have brought in their initial
complaints, but rather renewing the Eighth Amendment arguments made in their initial motions.
Given this background, the court finds that the potential harm to the government caused
by a delayed execution is not substantial, and is outweighed by the irreparable harm Plaintiffs
would face absent an injunction. 7
D. Public Interest
As noted in the court’s 2019 Order, the public interest is not served by executing
individuals before they have had the opportunity to avail themselves of the legal process to
challenge the legality of their executions. “Applying the law in a way that violates the
Constitution is never in the public’s interest.” Minney v. United States Office of Pers. Mgmt.,
130 F. Supp. 3d 225, 236 (D.D.C. 2015) (emphasis in original). See also Purkey v. United
States, 2020 WL 3603779, at *11 (“Just because the death penalty is involved is no reason to
take shortcuts—indeed, it is a reason not to do so.”); Cooey v. Taft, 430 F. Supp. 2d 702, 708
(S.D. Ohio 2006) (“The public interest has never been and could never be served by rushing to
judgment at the expense of a condemned inmate’s constitutional rights.”); Harris v. Johnson, 323
F. Supp. 2d 797, 810 (S.D. Tex. 2004) (“Confidence in the humane application of the governing
laws . . . must be in the public’s interest.”). Accordingly, the court finds that the public interest
is served by preliminarily enjoining Plaintiffs’ executions because it will allow judicial review of
whether the United States Government’s planned execution protocol complies with the Eighth
Amendment, and to ensure that it does so in the future.
7
In his separate Opinion, Judge Katsas found that this was a case in which the balance of
equities favored the government. Execution Protocol Cases, 955 F.3d at 126 (Katsas, J.,
concurring). However, he noted that this was partly because the claims then before the Court
presented no “colorable dispute that pentobarbital will cause anything but a swift and painless
death.” Id. at 128–29. Plaintiffs’ Eighth Amendment claims now raise precisely this dispute.
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III. CONCLUSION
The court finds that at least one of Plaintiffs’ claims has a likelihood of success on the
merits, and that absent a preliminary injunction, Plaintiffs will suffer irreparable harm. It further
finds that the likely harm that Plaintiffs would suffer if the court does not grant injunctive relief
far outweighs any potential harm to Defendants. Finally, because the public is not served by
short-circuiting legitimate judicial process, and is greatly served by attempting to ensure that the
most serious punishment is imposed in a manner consistent with our Constitution, the court finds
that it is in the public interest to issue a preliminary injunction. Accordingly, having reviewed
the parties’ filings, the record, and the relevant case law, and for the reasons set forth above, the
court will GRANT Plaintiffs’ Motion for a Preliminary Injunction. A corresponding order will
be issued simultaneously.
Date: July 13, 2020
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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