calling it “obviously correct” that “there are not now and never will be clinical studies of the effect of injecting 500 mg of midazolam into a person” and “we certainly cannot ask the executed whether they experienced pain after the injection of midazolam” but nevertheless emphasizing that “the applicable legal standard requires the plaintiffs to prove their allegations to a high level of certainty”
How later courts described this case
- calling it “obviously correct” that “there are not now and never will be clinical studies of the effect of injecting 500 mg of midazolam into a person” and “we certainly cannot ask the executed whether they experienced pain after the injection of midazolam” but nevertheless emphasizing that “the applicable legal standard requires the plaintiffs to prove their allegations to a high level of certainty”
- discounting testimony that the witness "believed 'there are pharmacists in the United States that are able to compound pentobarbital for use in lethal injections because other states have been reported to have obtained compounded pentobarbital for use in executions,' " because "that is quite different from saying that any given state can actually locate those pharmacies and readily obtain the drugs"
- holding that evidence insufficient to show “that a 500-milligram dose of midazolam is very likely to leave an inmate conscious enough to feel serious pain”
- rejecting argument that “because other states have been reported to have obtained compounded pentobarbital for use in executions,” a barbiturate-only protocol was a feasible alternative
Written by the judges who cited it.
The opinion
CONCURRING IN THE DISSENT
JANE B. STRANCH, Circuit Judge,
concurring in the dissent.
I concur in Judge Moore’s dissenting opinion because its legal analysis applied to the record before us fully supports and explains where the majority opinion errs. I write separately to address other concerns that intertwine with our merits determination. The majority raises one such fundamental concern by recounting the crimes that underlie the death penalty sentences of prisoners involved in this execution protocol challenge. The recitation of these crimes reveals what they are—horrific. But even in the face of such crimes and their powerful provocation to respond in *910 kind, our American legal system and current experience with the death penalty provide reasons to stay the hand of those implementing this lethal injection protocol so that the court may evaluate whether the latest protocol complies with the requirements of our Constitution.
In her dissent from the denial of certio-rari in Arthur v. Dunn, an Alabama case addressing the same issues raised here, Justice Sotomayor explains why the Eighth Amendment requires a “national conversation”—a continuing dialogue between the legislatures and the courts on the meaning of the Amendment’s prohibition on cruel and unusual punishments. — U.S.-, 137 S.Ct. 725, 731 , 197 L.Ed.2d 225 (2017) (Sotomayor, J., dissenting). She reminds us that the meaning of this prohibition is derived from “the evolving standards of decency that mark the progress of a maturing society.” Id. (quoting Kennedy v. Louisana, 554 U.S. 407, 419 , 128 S.Ct. 2641 , 171 L.Ed.2d 525 (2008)).
This case contains a conversation that implicates that standard. The majority begins and ends its argument with the conclusion that “death-penalty opponents successfully prevented Ohio (along with other states) from obtaining the drugs necessary to use the one-drug protocol.” Majority at 892; see also id. at 884-85. These framing comments grow from an argument made by various states that death-penalty opponents have employed improper means to prevent sale of the protocol drugs to states. But that argument ignores the possibility that our national conversation simply may have resulted in an evolution in the standard of decency upon which the Eighth Amendment relies. The refusal of drug companies to sell execution drugs may well evidence a recognition of changing societal attitudes toward the death penalty and a conclusion—whether based on principle, profit motivation, or both— that the business in which drug companies engage, selling drugs that improve health and preserve life, is not consistent with selling drugs that are used to put people to death.
This dialogue about the constitutional prohibition on cruel and unusual punishment is closely intertwined with our ongoing national conversation about the American criminal justice system. Woven through both is disquiet about issues such as punishing the innocent, discrimination on the basis of race, and effective deterrence of crime. These concerns are present throughout the criminal justice processes from arrest, to trial, to sentencing, to appeals, and to the final chapter in death penalty litigation such as this.
Such concerns, along with myriad others, have a role in public opinion that impacts “the evolving standards of decency” governing the Eighth Amendment’s prohibition on cruel and unusual punishment. See Kennedy, 554 U.S. at 419 , 128 S.Ct. 2641 . A 2015 survey found that a majority of Americans prefer life without parole over the death penalty for people convicted of murder. Robert P. Jones et al., Public Religion Research Institute, Anxiety, Nostalgia, and Mistrust: Findings from the 2015 American Values Survey 47 (2015), http://www.prri.org/wp-content/uploads/2015/ll/PRRI-AVS-2015-l. pdf. This matches polling in 2016 finding that public support for the death penalty has dropped below 50%, to its lowest level in 45 years. Baxter Oliphant, Support for death penalty lowest in more than four decades, Pew Research Center: Fact Tank (Sept. 29, 2016), http://www.pewresearch. org/fact-tank/2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades. Our opinion as a people on whether the death penalty is acceptable is a mark of the progress of our maturing society.
I fully agree with the analysis in the dissenting opinion and believe that affirm *911 ing the grant of a preliminary injunction would be the correct outcome based on governing precedent and the factual record before us. In light of the majority’s determinations, I also write to stress my agreement with Justice Sotomayor that the Eighth Amendment requires a continuing national discussion—a civil, thoughtful conversation among the American people, legislatures, and the courts—on the meaning of the Amendment’s prohibition on cruel and unusual punishment.