Petition for Writ of Certiorari — Raymond Tibbetts, Petitioner v. John Kasich, Governor of Ohio, et al.

Supreme Court briefJul 2, 2018

Ask Donna

What actually matters in this document.

Text

No. 18IN THE

Supreme Court of the United States

_____________

RAYMOND TIBBETTS,

Petitioner,

JOHN KASICH, et al.,

_____________

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

EXECUTION SCHEDULED

FOR OCTOBER 17, 2018

_____________

DEBORAH WILLIAMS

FEDERAL PUBLIC DEFENDER

SOUTHERN DISTRICT OF

OHIO

CAROL A. WRIGHT

ALLEN L. BOHNERT

ERIN G. BARNHART

ADAM M. RUSNAK

10 W. Broad Street

Suite 1020

Columbus, OH 43215

(614) 469-2999

JAMES A. KING

PORTER, WRIGHT, MORRIS

& ARTHUR LLP

41 South High Street

Columbus, OH 43215

(614) 227-2051

JEFFREY T. GREEN *

SIDLEY AUSTIN LLP

1501 K Street N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

COLLIN P. WEDEL

ANDREW B. TALAI

SIDLEY AUSTIN LLP

555 W. Fifth Street

Suite 4000

Los Angeles, CA 90013

(213) 896-6000

Counsel for Petitioner

July 2, 2018

* Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether a prisoner challenging a midazolam

three-drug lethal-injection protocol must, as the Sixth

Circuit requires, “prove” with “scientific evidence” that

the first drug is “sure or very likely to fail to prevent

serious pain”—an unattainable standard given the impossibility of clinically testing whether a massive overdose of a sedative will fail to block pain—or whether

the prisoner meets his Eighth Amendment burden by

showing that the protocol poses a “substantial risk of

serious harm,” as this Court articulated the standard

in Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion),

and Glossip v. Gross, 135 S. Ct. 2726 (2015), and as petitioner showed here.

2. Whether Glossip’s requirement of an alternative

method of execution that “significantly reduces a substantial risk of severe pain” requires the elimination of

all pain from an execution, or is satisfied by a proposal

to remove one of two distinct types of pain that the execution method will inflict.

(i)

PARTIES TO THE PROCEEDING

Petitioner is Raymond Tibbetts, an inmate incarcerated at the Chillicothe Correctional Institution.

Respondents are John Kasich, Governor of the State

of Ohio; Tim Shoop, Warden of the Chillicothe Correctional Institution; Gary C. Mohr, Director of the Ohio

Department of Rehabilitation and Correction; and

Anonymous Execution Team Members 1-50, all sued

in their official capacities.

There are no corporate parties involved in this case.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................

PARTIES TO THE PROCEEDING .....................

TABLE OF AUTHORITIES .................................

PETITION FOR A WRIT OF CERTIORARI .......

OPINIONS AND ORDERS BELOW ...................

STATEMENT OF JURISDICTION .....................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...........................................

INTRODUCTION .................................................

STATEMENT OF THE CASE..............................

REASONS FOR GRANTING THE PETITION ...

I. THE SIXTH CIRCUIT’S HEIGHTENED

STANDARD FOR EIGHTH AMENDMENT

CLAIMS CONFLICTS WITH BAZE AND

GLOSSIP AND FORECLOSES EIGHTH

AMENDMENT REVIEW OF OHIO’S LETHAL-INJECTION PROTOCOL .................

A. The Sixth Circuit’s “High Level Of Certainty” Standard Conflicts With This

Court’s “Substantial Risk Of Serious

Harm” Standard ........................................

B. The Sixth Circuit Wrongly Refuses To

Consider Alternative Methods Of Execution That Substantially Reduce, But Do

Not Completely Eliminate, The Risk Of

Pain............................................................

II. THE QUESTIONS PRESENTED ARE EXCEPTIONALLY IMPORTANT .....................

(iii)

TABLE OF CONTENTS—continued

III. THIS CASE IS AN EXCELLENT VEHICLE

FOR ADDRESSING THE QUESTIONS

PRESENTED ................................................

CONCLUSION .....................................................

Page

APPENDIX

APPENDIX A: Campbell v. Kasich (In re Ohio

Execution Protocol Litig.), 881 F.3d 447 (6th

Cir. 2018) ..........................................................

APPENDIX B: In re Ohio Execution Protocol

Litig., No. 2:11-cv-1016, 2017 WL 5020138

(S.D. Ohio Nov. 3, 2017) ...................................

CASES

TABLE OF AUTHORITIES

Page

Advocate Health Care Network v. Stapleton,

137 S. Ct. 1652 (2017) ................................

Alaska Dep’t of Envtl. Conservation v. EPA,

540 U.S. 461 (2004) ....................................

Arizona v. Evans, 514 U.S. 1 (1995) .............

Baze v. Rees, 553 U.S. 35 (2008) ............... passim

Bucklew v. Precythe, 138 S. Ct. 1706

(2018) ..........................................................

Bucklew v. Precythe, 883 F.3d 1087 (8th

Cir.), cert. granted, 138 S. Ct. 1706

(2018) ..........................................................

Chester v. Wetzel, No. 1:08-cv-1261, 2012 WL

5439054 (M.D. Pa. Nov. 6, 2012) ...............

Cooey v. Strickland, 589 F.3d 210 (6th Cir.

2009) ...........................................................

Cook v. FDA, 733 F.3d 1 (D.C. Cir. 2013).....

Crawford v. Marion Cty. Election Bd., 553

U.S. 181 (2008) ...........................................

Farmer v. Brennan, 511 U.S. 825 (1994)......

Fears v. Morgan (In re Ohio Execution

Protocol), 860 F.3d 881 (6th Cir.

2017) ............................................... 7, 13, 14, 23

First Amend. Coal. of Ariz. v. Ryan, 188 F.

Supp. 3d 940 (D. Ariz. 2016), appeal

docketed, No. 17-16330 (9th Cir. June 28,

2017) ...........................................................

Florida v. Nixon, 543 U.S. 175 (2004) ..........

Ford v. Wainwright, 477 U.S. 399 (1986) .....

Glossip v. Gross, 135 S. Ct. 2726

(2015) ...................................................... passim

Hamm v. Comm’r, Ala. Dep’t of Corr., 725 F.

App’x 836 (11th Cir.), cert. denied, 138 S.

Ct. 828 (2018) .............................................

Haywood v. Drown, 556 U.S. 729 (2009) ......

TABLE OF AUTHORITIES—continued

Page

Helling v. McKinney, 509 U.S. 25 (1993) .....

Layne & Bowler Corp. v. W. Well Works, Inc.,

261 U.S. 387 (1923) ....................................

In re Lombardi, 741 F.3d 888 (8th Cir.

2014) ...........................................................

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) ..........

In re Ohio Execution Protocol Litig., 235 F.

Supp. 3d 892 (S.D. Ohio), vacated, 860

F.3d 881 (6th Cir.), cert. denied, Otte

v. Morgan, 137 S. Ct. 2238 (2017) ............. 6, 7

Otte v. Morgan, 137 S. Ct. 2238 (2017) ........

Pavatt v. Jones, 627 F.3d 1336 (10th Cir.

2010) ...........................................................

Pharm. Research & Mfrs. of Am. v. Walsh,

538 U.S. 644 (2003) ....................................

Rice v. Sioux City Mem’l Park Cemetery, Inc.,

349 U.S. 70 (1955) ......................................

Schwab v. Crosby, 451 F.3d 1308 (11th Cir.

2006) ...........................................................

Towery v. Brewer, 672 F.3d 650 (9th Cir.

2012) ...........................................................

Wellons v. Comm’r, Ga. Dep’t of Corrs., 754

F.3d 1260 (11th Cir. 2014) .........................

Whitaker v. Collier, 862 F.3d 490 (5th Cir.

2017) ...........................................................

Whitaker v. Livingston, 732 F.3d 465 (5th

Cir. 2013) ....................................................

CONSTITUTION AND STATUTE

U.S. Const. amend. VIII ................................

42 U.S.C. § 1983 ............................................

vii

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES

Page

Brady Dennis & Lena H. Sun, Execution

Chamber Becomes a Laboratory, Wash.

Post, May 1, 2014 .......................................

Denise Grady & Jan Hoffman, States Turn

to an Unproven Method of Execution:

Nitrogen Gas, N.Y. Times (May 7, 2018),

https://nyti.ms/2FSCBcO ...........................

Frank Green, Pathologist Says Ricky Gray’s

Autopsy Suggests Problems with Virginia’s

Execution Procedure, Richmond TimesDispatch (July 7, 2017), https://bit.ly/

2Hophh7 .....................................................

David H. Kaye, The Double Helix and the

Law of Evidence (2010) ..............................

Press Release, Hospira, Inc., Hospira Statement Regarding Pentothal™ (Sodium Thiopental) Market Exit (Jan. 21, 2011),

https://bit.ly/2HujiHs .................................

Press

Release,

Lundbeck,

Lundbeck

Overhauls Pentobarbital Distribution

Program to Restrict Misuse (July 1, 2011),

https://bit.ly/2KmXG6b ..............................

Ed Pilkington & Jacob Rosenberg, Fourth

and Final Arkansas Inmate Kenneth

Williams Executed, Guardian (Apr. 28,

2017), https://bit.ly/2Jwrmwr ....................

Austin Sarat, Why Nevada’s New Lethal Injection Protocol is Unethical, Salon (Nov.

16, 2017), https://bit.ly/2zImaR6 ...............

Andrew Welsh-Huggins, Gary Otte’s Reaction to Death Drugs Wasn’t Enough to Stop

Execution, Judge Says, Cleveland.com

(Sept. 20, 2017), https://bit.ly/2sBdYgW ...

viii

TABLE OF AUTHORITIES—continued

Alan M. Wolf, Hospira Halts Rocky Mount

Production of Death Penalty Drug, News &

Observer (Raleigh, N.C.), Jan. 21, 2011 ....

Page

PETITION FOR A WRIT OF CERTIORARI

Raymond Tibbetts respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit in this case.

OPINIONS AND ORDERS BELOW

The opinion of the court of appeals (Pet. App. 1a–8a)

is reported at 881 F.3d 447. The order of the district

court (Pet. App. 9a–38a) is not published in the Federal Supplement, but is available at 2017 WL 5020138.

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on

February 1, 2018. Pet. App. 1a. On April 20, 2018, Justice Kagan extended the time within which to file a petition for a writ of certiorari to and including Sunday,

July 1, 2018, making the petition due on Monday, July

2, 2018 under Rule 30.1. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the U.S. Constitution

provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual

punishments inflicted.”

Section 1983 of Title 42 of the U.S. Code provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any

State . . . , subjects, or causes to be subjected, any

citizen of the United States . . . to the deprivation

of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .

INTRODUCTION

Ohio intends to execute petitioner, Raymond Tibbetts, in a manner that both the district court and

court of appeals understood would entail a substantial

risk of serious harm. See Pet. App. 3a, 16a. The State

uses a lethal-injection protocol that hinges on the ability of one drug, midazolam, to block the otherwise torturous sensations of entombment and burning caused

by two other drugs. Petitioner showed, as the district

court found and the court of appeals understood, a substantial risk that midazolam is unfit for the task.

A “substantial risk of serious harm” is precisely the

standard that this Court articulated in its method-ofexecution cases, Baze v. Rees, 553 U.S. 35, 50 (2008)

(plurality opinion), and Glossip v. Gross, 135 S. Ct.

2726, 2737 (2015). Despite acknowledging that petitioner met this standard, the court of appeals nevertheless denied relief, reckoning that this Court’s decisions in Baze and Glossip established a “more rigorous” Eighth Amendment standard that requires proof

to a higher “level of certainty” than a “substantial risk

of serious harm.” Pet. App. 3a, 16a. Departing from

this Court’s precedent, the Sixth Circuit now holds

that a plaintiff seeking relief under the Eighth Amendment must “prove,” with “scientific evidence,” that a

state’s attempts to render a prisoner insensate to pain

in advance of an otherwise excruciating execution are

“sure or very likely to fail.” Pet. App. 7a.

The Constitution requires no such thing. The Sixth

Circuit’s refusal to grant relief to a plaintiff that met

his burden to show a “substantial risk of serious harm”

cannot be squared with Baze, Glossip, or with this

Court’s other Eighth Amendment jurisprudence. The

Sixth Circuit’s heightened “certainty” standard also

impaired its analysis of Glossip’s second element—

which requires plaintiffs to show that a less painful alternative is available—and led the court to reject a

proposal that significantly reduces, but does not entirely eliminate, that risk of harm.

Whether Ohio’s execution method is constitutional is

an exceptionally important question that this Court

should review now. The Sixth Circuit’s replacement of

the “substantial risk” standard with a new one requiring “scientific evidence” and a “high level of certainty”

insulates Ohio’s midazolam-based execution protocol

from meaningful constitutional scrutiny, as numerous

ethical, logistical, and empirical considerations place

that evidentiary burden well beyond reach. Moreover,

the Sixth Circuit has now joined the few other circuits

that have had occasion to address method-of-execution

issues after Glossip. As a result, the Sixth Circuit’s decision in this case all but forecloses judicial review of

lethal-injection protocols. And it does so at the precise

moment when, in light of a series of mishaps and

botches, such review is sorely needed. This Court

should grant the petition to ensure that the Constitution’s prohibition of cruel and unusual punishment remains applicable to methods of execution.

STATEMENT OF THE CASE

1. Ohio’s current execution protocol calls for intravenous administration of three drugs. The first drug,

midazolam hydrochloride, is a sedative that the State

hopes will render the condemned prisoner unconscious, unaware, and insensate to pain. The second

drug is a paralytic that restricts movement and

breathing. And the third drug, potassium chloride,

causes the heart to stop beating.

It is undisputed that, without proper administration

of an adequate first drug, the prisoner experiences a

torturous death from the second and third drugs. Behind a veneer of tranquility, the second drug prevents

the prisoner from exhaling carbon dioxide, which, as it

acidifies in the lungs, causes extremely painful sensations of air hunger, crushing, and suffocation. Separately, the third drug causes excruciating burning as

it travels through the prisoner’s veins and ultimately

stops his heart.

Thus, an execution that satisfies the Eighth Amendment’s prohibition against cruel and unusual punishment depends upon the effectiveness of the first drug.

For decades, states had relied upon barbiturates for

that purpose, as there is no medical dispute that barbiturates, if effectively administered, will reliably produce prolonged and “deep, comalike unconsciousness.”

Baze, 553 U.S. at 44 (plurality opinion). But, starting

in 2010, states began to encounter difficulties in obtaining barbiturates for executions, when the sole domestic manufacturer faced regulatory and supply issues and subsequently exited the market altogether. 1

Several states then began importing sodium thiopental from unregistered foreign sources. See Cook

v. FDA, 733 F.3d 1, 4 (D.C. Cir. 2013). But that violated federal law. Id. at 10–11. Others replaced sodium

thiopental with another barbiturate, pentobarbital. 2

1 See Alan M. Wolf, Hospira Halts Rocky Mount Production of

Death Penalty Drug, News & Observer (Raleigh, N.C.), Jan. 21,

2011; Press Release, Hospira, Inc., Hospira Statement Regarding

Pentothal™ (Sodium Thiopental) Market Exit (Jan. 21, 2011),

https://bit.ly/2HujiHs.

2 Several states, including Ohio, abandoned the three-drug approach in favor of a one-drug method using an overdose of a single

barbiturate—essentially the method the petitioners in Baze had

Yet, in July 2011, the manufacturer of pentobarbital,

Lundbeck, placed distribution controls on the drug to

prevent what it deemed “misuse” of its products in executions. 3 Lundbeck’s corporate decision gradually reduced the supply of pentobarbital to prisons, and

states began seeking pentobarbital from other

sources. 4 Some states considered different drug combinations. Others, including Ohio, developed a threedrug protocol with midazolam as the first drug.

Both scientific evidence and experience have shown

that, unlike barbiturates, midazolam is inadequate to

render a prisoner insensate to the pain of the second

and third drugs. Midazolam belongs to a family of

drugs known as benzodiazepines, which includes wellknown anti-anxiety medications like Valium and

Xanax. As this Court has acknowledged, unlike barbiturates, “midazolam is not recommended or approved

for use as the sole anesthetic during painful surgery.”

proposed. See, e.g., Towery v. Brewer, 672 F.3d 650, 657 (9th Cir.

2012) (per curiam) (Arizona); Pavatt v. Jones, 627 F.3d 1336, 1337

n.1 (10th Cir. 2010) (Washington); Cooey v. Strickland, 589 F.3d

210, 215 (6th Cir. 2009) (Ohio).

Press Release, H. Lundbeck A/S, Lundbeck Overhauls

Pentobarbital Distribution Program to Restrict Misuse (July 1,

2011), https://bit.ly/2KmXG6b.

3 See

4 See, e.g., Wellons v. Comm’r, Ga. Dep’t of Corrs., 754 F.3d

1260, 1262 (11th Cir. 2014) (per curiam) (suggesting that Georgia

is using compounded pentobarbital); In re Lombardi, 741 F.3d

888, 891 (8th Cir. 2014) (en banc) (Missouri using compounded

pentobarbital); Whitaker v. Livingston, 732 F.3d 465, 468 (5th

Cir. 2013) (per curiam) (Texas using compounded pentobarbital);

Chester v. Wetzel, No. 1:08-cv-1261, 2012 WL 5439054, at *7

(M.D. Pa. Nov. 6, 2012) (Pennsylvania using compounded pentobarbital); Brady Dennis & Lena H. Sun, Execution Chamber Becomes a Laboratory, Wash. Post, May 1, 2014, at A1.

Glossip, 135 S. Ct. at 2742. Nevertheless, in the aftermath of Glossip, Ohio adopted a three-drug, midazolam-based lethal-injection protocol.

2. Petitioner was one of several prisoners who thereafter moved to preliminarily enjoin Ohio’s midazolambased method of execution. The district court held a

five-day evidentiary hearing at which it considered extensive testimony from fourteen witnesses—including

two experts from each side. In re Ohio Execution Protocol Litig., 235 F. Supp. 3d 892, 902–51 (S.D. Ohio

2017). Petitioner’s evidence showed, among other

things, that midazolam does not have the pharmacologic ability to block pain from the second and third

drugs and, as a result, the paralytic and potassium

chloride would cause the inmate to suffer severe pain.

See id. at 952–53.

The district court issued, on an expedited basis, a

119-page decision. The court concluded that the “use

of midazolam as the first drug in Ohio’s present threedrug protocol will create a ‘substantial risk of serious

harm’ or an ‘objectively intolerable risk of harm’ as required by Baze and Glossip,” id. at 953, and enjoined

Ohio from using its lethal-injection protocol pending a

trial on the merits of petitioner’s Eighth Amendment

claim, id. at 960.

The district court’s conclusion was supported by several key evidentiary findings. The court began by

“find[ing] that administration of a paralytic drug and

potassium chloride will cause a person severe pain.”

Id. at 952. Regarding the paralytic, which causes severe pain distinct from potassium chloride, the court

found “that realizing one is unable to breathe and

is . . . likely to be terrified and equating that phenomenon with severe suffering has not been refuted.” Id.

The court then explained its finding, “from both the

expert opinions and the lay descriptions,” that “deep

sedation” (which midazolam can produce) is “distinct”

from “general anesthesia” (which barbiturates, but not

midazolam, produce). Id. The district court summarized the expert testimony: “[I]f a person who is sedated is exposed to increasingly severe stimulation,

that person will eventually respond, but a person under general anesthesia would not respond to even the

most painful stimulus.” Id. at 913. “[B]ecause the ‘responsiveness’ associated with general anesthesia is

‘unarousable even with painful stimulus,’ that is the

state in which you would want a condemned inmate to

be.” Id. at 912. The court noted an “obvious” lack of

“clinical studies of the effect of injecting 500 mg of midazolam into a person,” which made it hard to know

“precisely why” the drug operates differently than a

barbiturate. Id. at 952. But it found those differences

exist, corroborated by observations of eyewitnesses to

several recent midazolam-based executions. Id.; see

also id. at 905–06, 921–22.

After a panel of the Sixth Circuit affirmed, the Sixth

Circuit took the case en banc and narrowly reversed.

Fears v. Morgan (In re Ohio Execution Protocol), 860

F.3d 881, 892 (6th Cir. 2017) (en banc). The en banc

court held that, although petitioner had indeed shown

a “substantial risk of serious harm,” id. at 886, a “more

rigorous” constitutional showing was required, which

demanded that petitioner “prove” his allegations to “a

high level of certainty,” id. at 886–87.

This Court denied certiorari. Otte v. Morgan, 137

S. Ct. 2238 (2017). Subsequently, two of the plaintiffs

in the underlying litigation were executed. 5

5 Ronald Phillips and Gary Otte were also plaintiffs in the underlying litigation and parties to the first motion for a preliminary injunction. Ohio eventually executed both men using its

3. On remand in the district court, petitioner and another condemned prisoner, Alva Campbell, moved for

a second preliminary injunction based on additional

evidence and in an effort to satisfy the Sixth Circuit’s

new, more demanding standard.

During a five-day evidentiary hearing, petitioner

bolstered the expert testimony regarding midazolam’s

unsuitability for blocking the severe pain caused by

the second and third drugs in Ohio’s protocol. Pet. App.

11a, 19a–24a. For example, petitioner showed that

midazolam possesses no pain blocking properties,

(Hr’g Tr., R. 1363, PageID 51521, 51540, 51549–53), as

even the State’s expert acknowledged, (Antognini Report, R. 1310-1, PageID 47499), and ordinarily cannot

cause and maintain unconsciousness, unawareness,

and insensitivity to pain by itself. Petitioner further

established that, even at high doses, midazolam is

pharmacologically incapable of inducing such a deep

state of unconsciousness as to effectively eliminate, or

substantially diminish, an inmate’s ability to experience any pain. Hr’g Tr., R. 1363, PageID 51536–40. Petitioner also demonstrated that, even if midazolam

could induce such a state, Ohio’s hasty administration

of the paralytic makes it impossible for midazolam to

reach full effectiveness—regardless of the dosage. Stevens Report, R. 1288-1, PageID 47118–19, 47129; Hr’g

Tr., R. 1359, PageID 50854, 50893–94. Petitioner then

introduced firsthand observations from recent midazolam-initiated executions that showed inmates remained aware and sensate to pain. Pet. App. 21a–22a.

According to witness descriptions, Ohio inmate Gary

Otte appeared to cry during his execution—even after

the State injected him with midazolam—which would

three-drug protocol. Phillips was executed on July 26, 2017, and

Otte was executed on September 14, 2017.

have been impossible for a person who was properly

anesthetized. Id. at 22a–23a.

Nevertheless, while again acknowledging petitioner’s prior showing of a substantial risk of serious

harm, the district court concluded that petitioner did

not “add[] sufficient evidence to the case to now show

the [e]xecution [p]rotocol is sure or very likely to cause

[him] severe pain and needless suffering.” Pet. App.

18a–19a. 6

Petitioner also proposed an available and significantly less-painful alternative to Ohio’s three-drug

protocol. Guided by Glossip’s directive that plaintiffs

must propose an alternative that significantly reduces

a substantial risk of pain, petitioner suggested a twodrug protocol that, by removing the paralytic, entirely

eliminates all risk of experiencing the unique pain of

suffocation from the paralytic. The district court rejected petitioner’s proposed two-drug protocol of midazolam and potassium chloride. The court remarked

that “[i]t is difficult to credit this proposal as being

made in good faith,” because the proposed method

6 The district court issued an order on the eve of Alva Campbell’s scheduled execution, (Order, R. 1375), which reveals the impossibility of satisfying the Sixth Circuit’s heightened “certainty”

standard. Campbell sought to raise an access-to-the court claim,

arguing that anticipated difficulties during his execution, due to

health conditions, could prompt legitimate requests for intervention by the court to stop ongoing Eighth Amendment violations.

Mot. for Leave to Amend, R. 1369; Proposed Amendment

& Suppl., R. 1369-1, PageID 51717. Yet the district court held

that any claims based on reported trouble during Campbell’s execution would be “precluded by precedent,” concluding that “it is

difficult to anticipate what evidence regarding the effect of midazolam [Campbell] might present to the Court in a mid-execution

motion for temporary restraining order that would overcome the

effect of the Sixth Circuit’s rejection of the prior evidence” in

Fears. Order, R. 1375, PageID 51888–89.

would, given petitioner’s view of midazolam’s ineffectiveness, still inflict significant pain from the potassium chloride. Pet. App. 29a. The district court denied

the motion for a preliminary injunction.

4. The Sixth Circuit affirmed. Judge Batchelder,

writing for the panel, again credited the district court’s

finding that petitioner had shown “some risk that

Ohio’s execution protocol may cause some degree of

pain.” Pet. App. 3a. But, building on the en banc Fears

decision, the panel questioned whether petitioner had

“added sufficient evidence” to what was previously before the court to satisfy the higher “level of certainty”

now required for Eighth Amendment claims. Id. at 3a.

The panel then embellished Fears with an additional

requirement that a petitioner “prove,” with “scientific

evidence,” that “a 500-mg dose of midazolam . . . is

sure or very likely to fail to prevent serious pain.” Id.

at 7a. The panel held that petitioner’s evidence of a

“substantial risk” did not meet this new standard of

“scientific evidence” and a “high level of certainty.”

The panel also misconstrued petitioner’s proposed

alternative, variously concluding that it would either

“do nothing to reduce the risk of serious pain”—misunderstanding the distinct types of pain inflicted by the

second and third drugs—or, that it was only “a slightly

or marginally safer alternative,” because the alternative would still inflict some pain. Pet. App. 8a.

5. During the pendency of the proceedings here, Ohio

tried to execute Alva Campbell, on November 15, 2017,

but could not locate a suitable vein. Governor Kasich

then postponed that execution until June 5, 2019. But

Campbell, who was elderly and suffered from numerous ailments, passed away in his cell on March 3, 2018.

Thus, Petitioner Tibbetts is now the last litigant from

the original group of prisoners who participated in the

Fears preliminary injunction and en banc proceedings.

He is also the last to have demonstrated a “substantial

risk” of severe pain in the underlying proceedings,

which was, by the court of appeals’ own logic, based on

a fully developed record at the preliminary injunction

stage—short only of containing the results of unethical

and impractical experimentation. Ohio is currently set

to execute petitioner on October 17, 2018.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit’s misreading of Baze and Glossip

has effectively foreclosed constitutional inquiry into

the ways that states carry out executions. Now, in the

Sixth Circuit, a prisoner must “prove” with “scientific

evidence” that the ostensibly pain-blocking portion of

a lethal-injection protocol “is sure or very likely to fail

to prevent serious pain.” Pet. App. 7a. That standard

is far stricter than the one this Court set in Baze and

Glossip, which required only that prisoners show that

the method entailed a “substantial risk of serious

harm.” The Sixth Circuit’s heightened “certainty”

standard is also one that a prisoner cannot meet: due

to ethical and practical constraints of testing what 500

milligrams of midazolam would do to a human body,

no such “scientific evidence” that such a large dose is

“sure or very likely to fail” will ever exist.

The Sixth Circuit’s “certainty” requirement also infected its consideration of proposed alternative methods of execution, causing the court to reject an alternative that is substantially less risky, simply because it

would not wholly eliminate the risk of pain.

It is especially important for this Court to address

the Sixth Circuit’s decision because it shields Ohio’s

lethal-injection protocol against constitutional challenge at a time when the stakes of removing that protocol from judicial review are high. At least two states

have abandoned midazolam in the face of mounting evidence of its ineffectiveness; others have forsworn use

of a paralytic; and, since the Sixth Circuit decided

Fears, there have been troubling midazolam-initiated

executions in Ohio and elsewhere. And this case is an

ideal vehicle for addressing the questions presented

because it is unlikely that future petitioners will so

clearly present a finding by the lower courts that they

face a “substantial risk” of harm, but not one that is

“sure or very likely to fail to prevent serious pain.”

On this point, the lack of an apparent split of authority counsels in favor of review, not against it. This

Court often grants review where the issues are of exceptional importance—indeed, neither Baze nor Glossip presented a split. More important, though, the

Sixth Circuit’s alignment with the few other circuits

that hear lethal-injection appeals makes it unlikely

that a split ever could or would develop. The time to

review the questions presented is now.

I. THE SIXTH CIRCUIT’S HEIGHTENED

STANDARD FOR EIGHTH AMENDMENT

CLAIMS CONFLICTS WITH BAZE AND

GLOSSIP AND FORECLOSES EIGHTH

AMENDMENT REVIEW OF OHIO’S LETHAL-INJECTION PROTOCOL.

In Glossip, 135 S. Ct. 2726, this Court held that an

Eighth Amendment method-of-execution claim has

two elements. First, the plaintiff must show that the

state’s method of execution entails a “substantial risk

of serious harm” or “severe pain.” Id. at 2737 (quoting

Baze, 553 U.S. at 50). Second, the plaintiff must identify “an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’” Id. (alterations in original)

(quoting Baze, 553 U.S. at 52). The Sixth Circuit has

distorted both elements of the Eighth Amendment

standard, insulating Ohio’s execution protocol from

constitutional scrutiny.

A. The Sixth Circuit’s “High Level Of Certainty” Standard Conflicts With This

Court’s “Substantial Risk Of Serious

Harm” Standard.

1. The Sixth Circuit has created an Eighth Amendment standard regarding the likelihood of harm that

is both at odds with this Court’s jurisprudence and, in

practice, impossible to satisfy.

The departure from this Court’s precedents began in

Fears. There, the en banc Sixth Circuit reversed the

district court’s grant of a preliminary injunction, even

though the trial judge had found that Ohio’s protocol

presented a “substantial risk of serious harm” under

Baze and Glossip. Fears, 860 F.3d at 886. The Sixth

Circuit held that a “more rigorous” constitutional

showing was required; that prisoners were actually required to prove that “the method of execution is sure

or very likely to cause serious pain.” Id. Erasing any

doubt about whether the ruling rested on mere semantic differences between the two phrases, moreover, the

court explained that the “substantial risk” standard

was materially distinct from the “sure or very likely”

standard, which, “fairly or not, . . . requires the plaintiffs to prove their allegations to a high level of certainty.” Id. at 886–87.

Then, in the decision underlying this petition, the

Sixth Circuit confirmed its departure from this Court’s

precedents and further expounded on its “high level of

certainty” standard. Acknowledging the district

court’s original findings of a “substantial risk,” the

panel held that petitioner’s showing of “some risk that

Ohio’s execution protocol may cause some degree of

pain” was not sufficient unless petitioner could also

“prove,” by producing “scientific evidence,” that “a 500mg dose of midazolam . . . is sure or very likely to fail

to prevent serious pain.” Pet. App. 7a.

By this metric, petitioner’s burden at the preliminary injunction stage was transformed from a likelihood of success on the merits into an impossible burden of providing empirical proof. As the Sixth Circuit

acknowledged, given the “obvious[]” ethical constraints, “there are not now and never will be clinical

studies of the effect of injecting 500 mg of midazolam

into a person.” Fears, 860 F.3d at 887 (emphasis

added).

The court’s acknowledgement of the impossibility of

obtaining such scientific evidence, coupled with its

holding that relief depends on introducing exactly this

sort of evidence, places success on the merits of an

Eighth Amendment claim forever out of reach. From a

practical standpoint, the court’s rule implicitly gives

short shrift to many forms of “scientific evidence” that

are already used in cases like this one, e.g., testimony

from pharmacologists and anesthesiologists about how

drugs work on the brain, and observational data from

witnessing prisoners’ physiological responses during

other executions. Moreover, it would be impossible to

administer a massive overdose of a sedative to a subject just to test whether that sedative would block sensations of pain. Such a test would be even odder, given

that midazolam does not block pain and is not used as

an anesthetic at normal doses. Indeed, the testing that

the Sixth Circuit seems to envision would be premised

on the counterfactual assumption that a massive overdose of midazolam will do something (block pain) that

the highest testable clinical dose does not.

2. The Sixth Circuit’s heightened “certainty” standard, in addition to conflicting with basic principles of

proof and logic, is inconsistent with Glossip, Baze, and

decades of this Court’s Eighth Amendment jurisprudence.

In Helling v. McKinney, 509 U.S. 25 (1993), a prisoner filed a civil rights complaint about the risk of

harm caused by his cellmate’s cigarette smoke. Id. at

28. The question presented was whether the prisoner

could state an Eighth Amendment claim by alleging

that exposure to second-hand smoke posed a risk of future harm to his health. Id. at 31. This Court rebuffed

the assertion that a prisoner must “prove that he is

currently suffering serious medical problems,” explaining that prison authorities could not “ignore a

condition of confinement that is sure or very likely to

cause serious illness and needless suffering the next

week or month or year.” Id. at 32–33. The Court also

rejected the United States’ request, as amicus curiae,

to conclude that the risk of harm involved was too

“speculative.” Id. at 34. Even though the scientific evidence at the time was equivocal, see id. at 28–29, this

Court held that a plaintiff need only allege that the

defendants “have, with deliberate indifference, exposed [a plaintiff] to levels of [second-hand smoke] that

pose an unreasonable risk of serious damage to his future health.” Id. at 35 (emphasis added).

In Farmer v. Brennan, 511 U.S. 825 (1994), a

transgender prisoner alleged that federal officials

were deliberately indifferent to the risk of harm she

faced in general population—largely due to her physical appearance, and the penitentiary’s history of violent inmate assaults. Id. at 830–31. The primary task

for this Court was to “explain the meaning of the term

‘deliberate indifference.’” Id. at 835. Prefacing that discussion, however, this Court elaborated on the nature

of the risk of harm actionable under the Eighth

Amendment: the harm “must be, objectively, ‘sufficiently serious,’” and the risk must be “substantial.”

Id. at 834 (citing Helling, 509 U.S. at 35). Although

this Court declined to address “[a]t what point a risk

of inmate assault becomes sufficiently substantial for

Eighth Amendment purposes,” id. at 834 n.3, it held

that “an Eighth Amendment claimant need not show

that a prison official acted or failed to act believing that

harm actually would befall an inmate; it is enough

that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Id. at

842 (emphases added). The Farmer opinion repeatedly

cited Helling without once mentioning the phrase

“sure or very likely.”

Together, this Court’s decisions in Helling and

Farmer establish that subjecting a prisoner to a “substantial risk of serious harm” can qualify as cruel and

unusual punishment without proof that the risked

event is absolutely certain to materialize. That is indeed how this Court later characterized those standards in the lethal-injection context. See Baze, 553 U.S.

at 49–50 (plurality opinion) (citing Farmer, 511 U.S. at

842, 846 & n.9; Helling, 509 U.S. at 33, 34–35); see also

Glossip, 135 S. Ct. at 2737 (citing Baze, 553 U.S. at 50).

To be sure, Baze and Glossip both used the phrase

“sure or very likely” to discuss the level of risk required

when a claim involves merely “serious illness or needless suffering.” See Glossip, 135 S. Ct. at 2737 (quoting

Baze, 553 U.S. at 50) (emphasis added). But neither

decision required a plaintiff seeking early injunctive

relief to “prove” that risk to a high degree of certainty

using “scientific evidence,” see Pet. App. 7a, and certainly not to a degree that is materially distinct from

a “substantial risk of serious harm.” The phrase “sure

or very likely” appears in Baze’s plurality opinion only

once, whereas the plurality uses “substantial risk” (or

a variant, like “the risk is substantial”) twelve times.

Similarly, Glossip uses “sure or very likely” only four

times, but refers to a “substantial” risk eleven times.

It would have made little sense for this Court to discuss the “substantial risk” standard at such great

length in Baze and Glossip if it meant to convey, as the

Sixth Circuit now holds, that prisoners cannot meet

their burden by showing such a risk, and must instead

“prove” their allegations to a high degree of certainty

using “scientific evidence.” Contrary to the Sixth Circuit’s approach, there is no common definition in the

scientific community regarding what threshold establishes “certainty.” Cf. David H. Kaye, The Double Helix

and the Law of Evidence 82 (2010) (explaining that the

phrase “reasonable degree of scientific certainty” is “legal mumbo jumbo derived from archaic cases in which

lawyers discovered that if a medical doctor did not utter the incantation . . . , his testimony might be excluded”).

B. The Sixth Circuit Wrongly Refuses To

Consider Alternative Methods Of Execution That Substantially Reduce, But Do

Not Completely Eliminate, The Risk Of

Pain.

Compounding its fixation on certainty, the Sixth Circuit’s rule also rejects proposals for substantially less

risky methods of execution if those methods are not

certain to wholly eliminate the risk of all pain.

Under this Court’s precedents, a condemned inmate

need only show that an alternative method of execution is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe

pain.” Glossip, 135 S. Ct. at 2737 (alterations in original) (quoting Baze, 553 U.S. at 52). Petitioner proposed an alternative that satisfies the Glossip standard, as at least one district court has held. See First

Amendment Coal. of Ariz., Inc. v. Ryan, 188 F. Supp.

3d 940, 950 (D. Ariz. 2016), appeal docketed, No. 1716330 (9th Cir. June 28, 2017). Rather than risk two

different forms of suffering under Ohio’s current

method of execution—i.e., the distinct sensations of entombment and burning—petitioner proposed a twodrug protocol that omits the paralytic. See Baze, 553

U.S. at 73 (Stevens, J., concurring in the judgment)

(recognizing that the paralytic serves “no therapeutic

purpose”). A two-drug protocol of midazolam and potassium chloride is indisputably “feasible” and “readily

implemented.” Ohio already possesses and administers both of these drugs. Petitioner’s alternative would

also present, as a matter of logic, a significantly reduced risk of pain when compared to Ohio’s current

method of execution. Petitioner’s proposal omits an unnecessary chemical (as death is swift and certain from

the potassium alone), and, simultaneously, eliminates

any risk that a condemned inmate will experience, in

the interim, the distinct sensations of crushing and

suffocation.

Glossip does not require more. To succeed on an

Eighth Amendment claim, the condemned prisoner

must show that the state’s lethal-injection protocol

“creates a demonstrated risk of severe pain and that

the risk is substantial when compared to the known

and available alternatives.” Glossip, 135 S. Ct. at 2737

(emphasis added). The comparative inquiry is a logical

corollary to the Court’s statement that, because “capital punishment is constitutional,” there “must be a

means of carrying it out.” See Baze, 553 U.S. at 47 (plurality opinion). The lower courts here missed that

point, however, suggesting that petitioner’s alternative method of execution must eliminate all risk of

pain. Indeed, directly contrary to this Court’s compar-

ative standard, the district court refused to even engage with the alternative, commenting that “[i]t is difficult to credit [petitioner’s] proposal as being in good

faith.” Pet. App. 29a. And the court of appeals likewise

suggested that petitioner’s proposal was somehow

made in bad faith because it would “do nothing to reduce the risk of serious pain and needless suffering . . . , but would instead ensure it.” Id. at 8a.

That is incorrect. As previously explained, petitioner’s proposal limits a unique form of pain caused

by the paralytic when midazolam does not work. At

any rate, petitioner is not required to offer perfect,

pain-free alternatives. This Court has consistently

held that prisoners need only show an alternative that

“significantly”—as opposed to “slightly” or “marginally”—reduces a substantial risk of severe pain. Glossip, 135 S. Ct. at 2737.

II. THE QUESTIONS PRESENTED ARE EXCEPTIONALLY IMPORTANT.

Condemned prisoners seeking to challenge the constitutionality of a lethal-injection protocol now face an

insurmountable evidentiary burden—one that singularly applies in the method-of-execution context. But

there is no basis in the text of the Cruel and Unusual

Punishments Clause, or this Court’s Eighth Amendment jurisprudence, to distinguish the standard applicable to condemned prisoners from that applicable to

all others. This Court’s decisions in Glossip and Baze—

when read in context with Helling and Farmer—establish that subjecting any prisoner to a “substantial risk

of serious harm” can qualify as cruel and unusual punishment. This Court should provide much-needed

guidance regarding the burden of proof in method-ofexecution cases, and it should require that the lower

courts consider this profoundly important constitutional question under well-established Eighth Amendment principles.

This Court’s clarification of the proper Eighth

Amendment standard for challenges to methods of execution is imperative because the stakes here are high.

There is mounting evidence that the three-drug midazolam protocol—like the one currently implemented

in Ohio—is unconstitutionally painful. See Andrew

Welsh-Huggins, Gary Otte’s Reaction to Death Drugs

Wasn’t Enough to Stop Execution, Judge Says, Cleveland.com (Sept. 20, 2017), https://bit.ly/2sBdYgW (describing reports that Gary Otte was “conscious, crying,

clenching . . . [his] hands, [and] heaving at the stomach” during his execution); Frank Green, Pathologist

Says Ricky Gray’s Autopsy Suggests Problems with

Virginia’s Execution Procedure, Rich. Times-Dispatch

(July 7, 2017), https://bit.ly/2Hophh7 (describing autopsy results from Ricky Gray’s execution as, according to a pathologist, “more often seen in the aftermath

of a sarin gas attack than in a routine hospital autopsy,” and indicating possibly a “severe” and “unbearable” experience of “panic and terror”); Ed Pilkington

& Jacob Rosenberg, Fourth and Final Arkansas Inmate Kenneth Williams Executed, Guardian (Apr. 28,

2017), https://bit.ly/2Jwrmwr (“Eyewitnesses . . . reported that his whole body shook with 15 or 20 convulsions,” in which “his body was described as ‘shaking[,’]

he lurched forwards quickly multiple times, and he

moaned and groaned.”).

Two states—Arizona and Florida—have abandoned

use of midazolam, and Arizona has further abandoned

use of a paralytic, see Stipulated Settlement Agreement at 4, First Amendment Coal. of Ariz., Inc.

v. Ryan, No. 2:14-cv-01447-NVW (D. Ariz. June 21,

2017) (ECF No. 186). In place of the three-drug midazolam protocol, moreover, states have begun to adopt

untested, experimental protocols that no doubt will be

subject to additional challenges. See, e.g., Denise

Grady & Jan Hoffman, States Turn to an Unproven

Method of Execution: Nitrogen Gas, N.Y. Times (May

7, 2018), https://nyti.ms/2FSCBcO (“Oklahoma, Alabama and Mississippi have authorized nitrogen for executions and are developing protocols to use it,” even

though “[t]here is no scientific data on executing people with nitrogen”); Austin Sarat, Why Nevada’s New

Lethal Injection Protocol is Unethical, Salon (Nov. 16,

2017), https://bit.ly/2zImaR6 (“[I]f . . . death penalty

states insist on experimenting with new drugs to keep

the machinery of death running, citizens and government officials alike need to take responsibility to prevent any cruelty.”).

In the face of that evidence of pain, and as states

turn toward experimentation, it is vitally important

that there be a means to ensure that methods of execution can be subjected to meaningful judicial review.

No less than it guards the prisoner against cruelty, the

Eighth Amendment also protects “the dignity of society itself from . . . barbarity.” Ford v. Wainwright, 477

U.S. 399, 410 (1986). But it cannot do so if states’

methods are shielded from constitutional scrutiny, as

the Sixth Circuit’s “scientific evidence” and “high level

of certainty” standard now accomplishes. Accordingly,

this Court should grant review to resolve these exceptionally important issues.

III. THIS CASE IS AN EXCELLENT VEHICLE

FOR ADDRESSING THE QUESTIONS PRESENTED.

Given the fully developed record in this case and the

low likelihood that conflicts will develop among the circuits, this petition presents an excellent vehicle for reviewing the questions presented.

Indeed, this case may be the only vehicle in the foreseeable future for addressing the questions presented.

Going forward, death-row inmates in the Sixth Circuit

will be subject to the “scientific evidence” and “high

level of certainty” standard. Because of that, it is unlikely that any future petitioners will present so clear

a finding of fact, based on lay and expert testimony,

that they face risk that is “substantial” within the

meaning of Baze and Glossip, but not one that is “certain.” Sure enough, petitioner is the last litigant from

the original group of prisoners who participated in the

Fears proceedings. And he is the only surviving litigant who can present a complete record that, according to the district court, satisfied the “substantial risk”

of severe pain standard.

The practical impact of the Sixth Circuit’s heightened “certainty” standard is to forever foreclose a full

trial on the merits of a condemned prisoner’s Eighth

Amendment method-of-execution claim. Every other

circuit that has considered (or, practically speaking,

could consider) a method-of-execution challenge under

Glossip has relied on the phrase “sure or very likely”

to create a materially distinct legal standard requiring

near certainty of harm. See Schwab v. Crosby, 451

F.3d 1308, 1325 (11th Cir. 2006) (“[T]here is dicta and

then there is dicta, and then there is Supreme Court

dicta.”); see also, e.g., Bucklew v. Precythe, 883 F.3d

1087, 1091 (8th Cir.), cert. granted, 138 S. Ct. 1706

(2018); Hamm v. Comm’r, Ala. Dep’t of Corr., 725

F. App’x 836 (11th Cir.) (per curiam), cert. denied, 138

S. Ct. 828 (2018); Whitaker v. Collier, 862 F.3d 490,

497 (5th Cir. 2017); Fears, 860 F.3d at 886. 7

A definitive circuit split regarding the “substantial

risk” and “sure or very likely” standards thus cannot

develop. But this lack of an apparent conflict in the

lower courts counsels in favor of review here, not

against it, given the great “importance to the public”

of the question presented. See Layne & Bowler Corp.

v. W. Well Works, Inc., 261 U.S. 387, 393 (1923). 8 Because of the final and absolute nature of capital pun7F

7 Because many jurisdictions have abolished the death penalty

or imposed a moratorium on executions, a circuit split is less

likely to develop organically. The Courts of Appeals for the First,

Second, Third, Fourth, Seventh, Ninth, Tenth, District of Columbia, and Federal Circuits have not considered a method-of-execution challenge since this Court’s decision in Glossip, and are unlikely to do so anytime soon, if ever. Only the Fifth, Sixth, Eighth,

and Eleventh Circuits have had occasion to consider such issues.

8 See also Advocate Health Care Network v. Stapleton, 137

S. Ct. 1652, 1657 (2017) (granting certiorari without a genuine

split “[i]n light of the importance of the issue”); Haywood

v. Drown, 556 U.S. 729, 733 (2009) (granting certiorari without a

genuine split because of “the importance of the question decided”

by the lower court); Crawford v. Marion Cty. Election Bd., 553

U.S. 181, 188 (2008) (plurality opinion) (granting certiorari in

consolidated appeals because “of the importance of these cases”);

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545

U.S. 967, 980 (2005) (granting certiorari to settle “important

questions of federal law”); Florida v. Nixon, 543 U.S. 175, 186

(2004) (granting certiorari “to resolve an important question of

constitutional law”); Alaska Dep’t of Envtl. Conservation v. EPA,

540 U.S. 461, 482 (2004) (granting certiorari “to resolve an important question of federal law”); Pharm. Research & Mfrs. of Am.

v. Walsh, 538 U.S. 644, 650 (2003) (granting certiorari “because

the questions presented are of national importance”).

ishment, method-of-execution challenges are quintessentially matters of exceptional importance that reach

“beyond the academic.” See Rice v. Sioux City Mem’l

Park Cemetery, Inc., 349 U.S. 70, 74 (1955). Consequently, neither Baze nor Glossip presented a split.

See Baze, 553 U.S. at 47 (plurality opinion) (granting

certiorari to “determine whether Kentucky’s lethal injection protocol satisfies the Eighth Amendment”);

Brief in Opposition to Petition for Writ of Certiorari at

8, Warner v. Gross, 135 S. Ct. 2726 (2015) (No. 147955), available at 2015 WL 1743949 (arguing that petitioners failed to “point to any instance where the circuit courts of appeal are in disagreement concerning

what Baze requires”). 9 There is therefore no reason to

await further “percolation” in the lower courts. See Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J.,

dissenting).

This case presents an excellent vehicle to address

when a prisoner is entitled to a full and fair trial on

the merits of a claim under the proper Eighth Amendment standard. This Court should grant review to allow that trial to occur.

9 This Court recently granted certiorari in another method-ofexecution case, Bucklew v. Precythe, 138 S. Ct. 1706 (2018), even

though the respondents argued that “Bucklew has not identified

any circuit split,” Brief in Opposition to Petition for Writ of Certiorari at 38, Bucklew v. Precythe, 138 S. Ct. 1706 (2018) (No. 178151), available at 2018 WL 1757762.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

DEBORAH WILLIAMS

FEDERAL PUBLIC DEFENDER

SOUTHERN DISTRICT OF

OHIO

CAROL A. WRIGHT

ALLEN L. BOHNERT

ERIN G. BARNHART

ADAM M. RUSNAK

10 W. Broad Street

Suite 1020

Columbus, OH 43215

(614) 469-2999

JAMES A. KING

PORTER, WRIGHT, MORRIS

& ARTHUR LLP

41 South High Street

Columbus, OH 43215

(614) 227-2051

JEFFREY T. GREEN *

SIDLEY AUSTIN LLP

1501 K Street N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

COLLIN P. WEDEL

ANDREW B. TALAI

SIDLEY AUSTIN LLP

555 W. Fifth Street

Suite 4000

Los Angeles, CA 90013

(213) 896-6000

Counsel for Petitioner

July 2, 2018

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.