The U.S. Court of Appeals for the Eighth Circuit has ruled that death-row inmates in Missouri don’t have a First Amendment right to learn the identities of the pharmacies that compound the drug used in executions.
The Eighth Circuit, sitting en banc, noted that there has not been a history of public access to the identities of the pharmacies that supply the drugs used in lethal injections.
Second, the court said the inmates’ complaint “provides no basis to conclude that public access to detailed information about execution protocols plays a significant positive role in the functioning of the process in question, given that the practical effect of public disclosure would likely be frustration of the state’s ability to carry out lawful sentences.”
In a per curiam opinion, the Eighth Circuit also ruled that death-row inmates must show in their complaints that execution methods are unconstitutional by alleging, one, that the method of execution is very likely to cause unconstitutionally painful deaths and, two, that there is an alternative method of execution that would “significantly reduce a substantial risk of serious pain.”
Several death-row prisoners in Missouri are challenging the use of compounded pentobarbital in executions as cruel and unusual punishment. Among other arguments, the defendants allege that super-potent pentobarbital could result in their suffocation and difficulty breathing before they lose consciousness.
In dissent, Circuit Judge Kermit E. Bye said that the majority’s ruling would impose heightened pleading standards when death-row inmates challenge their method of execution.
“The majority opinion establishes heightened pleading requirements for death-row inmates challenging a state’s method of execution under the Eighth Amendment,” Bye said. “This imposition is in opposition to governing Supreme Court precedent and the Federal Rules of Civil Procedure. In other words, the Eighth Circuit now prevents death-row inmates from truly accessing the federal courts: a death-row inmate cannot benefit from discovery and is prohibited from challenging even a truly unconscionable method of execution if no other methods are readily available and obvious at the pleading stage.”
The majority disagreed that they imposed a heightened pleading requirement, ruling “the prisoners fail to satisfy their burden under the Eighth Amendment because they rely entirely on hypothetical and speculative harms that, if they were to occur, would only result from isolated mishaps,” according to the per curiam opinion.
The court’s ruling was 7-3 on most issues.
Judge Steven M. Colloton joined the majority except for the section of the opinion finding that the death-row inmates inadequately plead in their complaint that they face a substantial risk of severe pain by the use of pentobarbital. Judge Bobby E. Shepherd joined the majority except for the ruling that prisoners must identify an alternative method of execution in their complaints.
While the court rejected the facial challenge in this case, the court did allow an as-applied challenge to proceed in the case of Bucklew v. Lombardi. The inmate in that case alleges that his execution could result in excruciating pain because of a serious medical condition.
Lawyer and Legal Journalist
