concluding that a § 1983 method-of-execution challenge should be construed as an motion for leave to file a successive habeas petition, which was denied
How later courts described this case
- concluding that a § 1983 method-of-execution challenge should be construed as an motion for leave to file a successive habeas petition, which was denied
- one judge concurring on different grounds, one judge dissenting, and a close split among the judges in denying the petition for en banc review
- cited with approval in Central Iowa Power Coop. v. Midwest Indep. Transmission Operator, Inc., 561 F.3d 904, 914 (8th Cir. 2009)
Written by the judges who cited it.
The opinion
SUHRHEINRICH, Circuit Judge,
concurring.
I concur in Judge Kennedy’s opinion. However, I would simply direct the Warden to carry out the execution in the manner advocated by the petitioners’ expert. The petitioners do not challenge the fact of their execution; they challenge only the method currently employed by the State of Ohio. By affidavit they have proposed an alternative method which they advocate does not constitute cruel and unusual punishment. The affidavit of the petitioners’ expert, Dr. Mark J.S. Heath, which is incorporated into the petitioners’ “Motion to Stay and Abey Proceedings,” states in relevant part:
J) The benefits of thiopental in the operating room engender serious risks in the execution chamber. Based on the information I have available to me concerning Ohio’s execution protocol, a two (2) gram dose of sodium thiopental is apparently administered in a single injection from a single syringe. By contrast, based on my research and the research of others into the procedures for executing human beings by means of lethal injection, the original design of the lethal injection protocol called for the continuous intravenous administration of an ultrashort-acting barbiturate. Based on my research and the research of others, the central elements of the lethal-injection procedure used in Ohio is similar to the one adopted many years ago in Oklahoma (which, it appears, many states used as a model without substantive independent research). Oklahoma requires the “continuous intravenous administration of an ultras-hort-acting barbiturate” (Oklahoma Statutes, Title 22 Criminal Procedure, Chapter 17 part 1014A). It does not appear that Ohio’s protocol includes this “continuous” requirement. The use of a continuous administration of the ultras-hort-acting barbiturate is essential to ensure continued and sustained unconsciousness during the administration of pancuronium and potassium chloride. It is my opinion based on a reasonable degree of medical certainty that the failure to require a continuous infusion of thiopental places the condemned inmate at a needless and significant risk for the conscious experience of paralysis during the excruciating pain of both suffocation and the intravenous injection of potassium chloride.
Motion to Stay and Abey Proceedings, at 13 (quoting Heath Affidavit ¶ 17).
If the Warden is ordered to follow the method advanced by the petitioners’ chosen expert, then the procedural question of whether the claim is properly considered a § 1983 action or a successive habeas petition will be moot, as the petitioners would have received the relief that they request.