Amicus Curiae Brief — Warren K. Henness, Petitioner v. Mike DeWine, et al.

No. 20-5243

IN THE

Supreme Court of the United States

___________

WARREN KEITH HENNESS,

v.

MIKE DEWINE, et al.,

___________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth

Circuit

__________

BRIEF OF THE ADVOCATES FOR HUMAN

RIGHTS AND THE COLEGIO DE ABOGADOS Y

ABOGADAS DE PUERTO RICO AS AMICI

CURIAE IN SUPPORT OF PETITIONER

___________

AMY BERGQUIST

Counsel of Record

THE ADVOCATES FOR

HUMAN RIGHTS

330 Second Avenue South

Suite 800

Minneapolis, MN 55401

(612) 341-3302

abergquist@advrights.org

ERICA STEIN

G. ERIC BRUNSTAD, JR.

BLAIR KUYKENDALL

DECHERT LLP

1900 K Street NW

Washington, DC 20006

(202) 261-3361

erica.stein@dechert.com

Counsel for Amicus Curiae

(For Continuation of Appearances See Inside Cover)

KEVIN MIGUEL RIVERA-MEDINA

COLEGIO DE ABOGADOS Y

ABOGADAS DE PUERTO RICO

808 Avenida Juan Ponce de León

San Juan, Puerto Rico 00907

(787) 721-3358

lawyers@capr.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI ............................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I.

II.

Ohio’s Lethal Injection Drug

Protocol Fails To Minimize The

Risk Of Suffering To The

Petitioner, In Violation Of The

United States’ Obligations Under

International Human Rights Law. ....... 4

A.

Ohio’s execution protocol is

in breach of international

law norms and standards

embodied in United

Nations human rights

treaties to which the

United States is a party. ............ 5

B.

Ohio’s execution protocol is

in breach of international

law norms and standards

embodied in human rights

treaties in the Americas to

which the United States is

a party. ...................................... 13

International Law Provides

Persuasive Authority For

Interpreting The Constitutional

Issues Before This Court. .................... 23

CONCLUSION ......................................................... 26

ii

TABLE OF AUTHORITIES

Page

CASES

Atkins v. Va.,

536 U.S. 304 (2002) .............................................. 25

Baze v. Rees,

553 U.S. 35 (2008) .................................................. 2

Bucklew v. Precythe,

––– U.S. ––––, 139 S. Ct. 1112 (2019) ... 2, 3, 20, 21

Campbell v. Kasich,

881 F.3d 447 (6th Cir. 2018) ................................ 22

Glossip v. Gross,

135 S. Ct. 2726 (2015) ...................................passim

Graham v. Fla.,

560 U.S. 48 (2010) ............................................ 4, 24

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 25

Lawrence v. Tex.,

539 U.S. 558 (2003) .............................................. 25

In re Ohio Execution Protocol Litigation,

937 F.3d 759 (2019) .............................................. 23

In re Ohio Execution Protocol Litigation,

946 F.3d 287 (6th Cir. 2019) ........................ 2, 3, 20

Roper v. Simmons,

543 U.S. 551 (2005) .............................................. 24

Thompson v. Okla.,

487 U.S. 815 (1988) .............................................. 25

iii

TABLE OF AUTHORITIES

(continued)

Page

Trop v. Dulles,

356 U.S. 86 (1958) ............................................ 4, 23

CONSTITUTION

U.S. CONST. amend. VIII ........................... 3, 23, 24, 25

U.S. CONST. amend. XIV ............................................ 25

STATUTES

P.R. Laws Ann. § 4.773 (2014) .................................... 1

Ohio Rev. Code Ann. § 2949.221 (2015) ................ 9, 21

FOREIGN CASES

Edgar Tamayo Arias v. United States

Case 12.873, Inter-Am. Comm’n

H.R., Report No. 44/14, OEA/Ser.

L/V/II.151, doc. 9 (2014) ................................. 14, 15

Russell Bucklew v. United States,

Case No. 12.958, Inter-Am. Comm’n

H.R., Report No. 71/18, OEA/Ser.

L/V/II.168, doc. 81 (2018) ..............................passim

Ahmadou Sadio Diallo (Guinea v. Dem.

Rep. Congo), Judgment, 2010 I.C.J.

Rep. 639 (Nov. 30, 2010) ........................................ 7

Felix Rocha Diaz v. United States

Case No. 12.833, Inter-Am. Comm’n

H.R., Report No. 11/15, OEA/Ser.

L/V/II.154, doc. 5 (2015) ........................... 15, 16, 17

iv

TABLE OF AUTHORITIES

(continued)

Page

OTHER AUTHORITIES

American Declaration on the Rights and

Duties of Man, Res. XXX, Final Act of

the Ninth International Conference

of American States (Pan American

Union), Bogota, Colombia, Mar. 30May 2, 1948,

https://www.oas.org/dil/access_to_info

rmation_human_right_American_De

claration_of_the_Rights_and_Duties_

of_Man.pdf .....................................................passim

G.A. Res 2200A (XXI), International

Covenant on Civil and Political

Rights, 999 U.N.T.S. 171 (Dec. 19,

1966)...............................................................passim

Juan E. Mendez, Interim report of the

Special Rapporteur on torture and

other cruel, inhuman or degrading

treatment or punishment, U.N. Doc.

A/67/279 (Aug. 9, 2012),

https://documents-ddsny.un.org/doc/UNDOC/GEN/N12/458/

12/PDF/N1245812.pdf?OpenElement ........... 19, 20

Status of Ratification Interactive

Dashboard, Office of the High

Commissioner for Human Rights,

United Nations,

https://indicators.ohchr.org/ ................................... 6

v

TABLE OF AUTHORITIES

(continued)

Page

U.N. Comm. Against Torture,

Concluding observations on the

second periodic report of the United

States of America, U.N. Doc.

CAT/C/USA/CO/2 (Jul. 25, 2006),

https://undocs.org/CAT/C/USA/CO/2 ............. 11, 12

U.N Comm. Against Torture, Concluding

observations on the combined third to

fifth periodic reports of the United

States of America, U.N. Doc.

CAT/C/USA/CO/3-5 (Dec. 19, 2014),

https://undocs.org/CAT/C/USA/CO/3-5 ................ 12

U.N. Comm. Against Torture, List of

issues prior to submission of the

sixth periodic report of the United

States of America, U.N. Doc.

CAT/C/USA/QPR/6 (Jan. 26, 2017),

https://digitallibrary.un.org/record/

1306808?ln=en ...................................................... 13

U.N. Convention Against Torture and

Other Cruel, Inhuman or Degrading

Treatment or Punishment, 1465

U.N.T.S. 85 (Dec. 10, 1984) ................. 6, 11, 13, 23

U.N. Economic and Social Council,

Safeguards Guaranteeing Protection

of the Rights of Those Facing the

Death Penalty, U.N. Res. 1984/50,

U.N. ESCOR, Annex, Supp. (No. 1),

U.N. Doc. E/1984/84 (May 25, 1984),

https://undocs.org/E/RES/1984/50 ................... 5, 12

vi

TABLE OF AUTHORITIES

(continued)

Page

U.N. Human Rights Comm., Concluding

Observations on the Fourth Periodic

Report of the United States of

America, CCPR/C/USA/CO/4 (Apr. 23

2014),

https://undocs.org/CCPR/C/USA/CO/4......... 8, 9, 10

U.N. Human Rights Comm., General

Comment No. 20: Article 7

(Prohibition of torture, or other cruel,

inhuman or degrading treatment or

punishment), (Mar. 10, 1992),

https://undocs.org/HRI/GEN/1/Rev.9

(Vol.I) ..................................................................... 7

U.N. Human Rights Comm., General

Comment No. 36 (2018) on article 6

of the International Covenant on

Civil and Political Rights, on the

right to life, U.N. Doc.

CCPR/C/GC/36 (Oct. 30, 2018),

https://tbinternet.ohchr.org/Treaties/

CCPR/Shared%20Documents/1_Glob

al/CCPR_C_GC_36_8785_E.pdf ............................. 8

U.N. Human Rights Comm., List of

issues prior to submission of the fifth

periodic report of the United States

of America, CCPR/C/USA/QPR/5

(Apr. 18, 2019),

https://undocs.org/CCPR/C/USA/

QPR/5 ................................................................ 9, 10

vii

TABLE OF AUTHORITIES

(continued)

Page

Whether the Food and Drug

Administration Has Jurisdiction over

Articles Intended for Use in Lawful

Executions (May 3, 2019),

https://www.justice.gov/olc/opinion/

file/1162686/download .......................................... 16

INTEREST OF AMICI1

The Advocates for Human Rights (“the Advocates”),

established

in

1983,

is

a

volunteer-based

nongovernmental organization committed to the

impartial promotion and protection of international

human rights standards and the rule of law. The

Advocates provides pro bono assistance on postconviction appeals, as well as education surrounding

capital punishment. The Advocates has a strong

interest in ensuring that as long as capital

punishment is practiced in the United States,

execution methods conform to international human

rights standards.

Colegio de Abogados y Abogadas de Puerto Rico

(hereinafter “Colegio”) is the oldest and largest

voluntary professional organization within the

Commonwealth of Puerto Rico. Colegio traces its

origins to 1830. In its current existence, Colegio was

created by Puerto Rico Law 43-1932, as amended, with

perpetual subsistence and capacity to sue and be sued.

One of Colegio’s purposes is “[t]o protect its members

in the exercise of their profession.”2 Colegio is and has

always been at the forefront of the provision of

voluntary, free legal services to the needy. Consistent

with that tradition, Colegio was the precursor and/or

1 No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary contribution

intended to fund the preparation or submission of this brief. No

one other than amicus curiae, its members, or its counsel made a

monetary contribution to the preparation or submission of this

brief. Letters from the parties consenting to the filing of amicus

curiae briefs have been filed with the Clerk of the Court.

2 P.R. Laws Ann. § 4.773 (2014).

2

founder of Legal Services of Puerto Rico, Inc., the

Legal Aid Society, the Legal Aid Clinic of Santurce and

Pro Bono, Inc., all of whom provide free legal services

to the most economically disadvantaged sectors of the

Puerto Rico populace.

SUMMARY OF ARGUMENT

Ohio’s execution methods violate the United States’

obligations under international human rights law,

which require that, when governments conduct

executions, those executions be carried out in a

manner that avoids gratuitous suffering. Numerous

international human rights bodies have confirmed

that the drug midazolam – used by Ohio in its lethal

injection protocol – creates a substantial risk of severe

pain that international human rights standards

prohibit. Should the Sixth Circuit have its way,

Petitioner will be subject to this suffering.

From the perspective of international human rights

law, the Sixth’s Circuit’s interpretation of Bucklew v.

Precythe3 is nothing short of shocking. In rendering its

decision, the court below ignored this Court’s language

in Baze v. Rees, which characterized the risk of

suffocation from the administration of a fatal drug as

“constitutionally

unacceptable,”4

and

instead

concluded incorrectly that several minutes of slow

suffocation is not “constitutionally cognizable”

suffering.5 Relying improperly on an anachronistic

3 Bucklew v. Precythe, ––– U.S. ––––, 139 S. Ct. 1112, 1124 (2019).

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

5 In re Ohio Execution Protocol Litigation, 946 F.3d 287, 290-291

(6th Cir. 2019).

3

historical benchmark, the Sixth Circuit essentially

carved out from the scope of the Eighth Amendment

any and all suffering at or below the extreme brutality

of a bungled hanging.6 Not only is that approach

inconsistent with this Court’s precedents, it is a clear

violation of international norms.

The Sixth Circuit’s overstatement of the burden a

petitioner must carry in showing an alternative under

Glossip v. Gross7 is also at odds with the norms of

applicable international human rights law.

Here,

Petitioner did provide an alternative execution

method: death by secobarbital. But compounding its

error, the Sixth Circuit categorically judged this

method

“not

a

viable

alternative”

and

“experiment[al]”8

without

undertaking

the

9

comparative analysis that Bucklew requires.

By agreeing to review the present case, this Court

would have the opportunity to ensure that the United

States offers judicial protection in capital punishment

cases that complies with the nation’s obligations under

international human rights law, in particular by

prohibiting torture and cruel, inhuman, or unusual

punishment, and safeguarding related international

due process guarantees. This Court has consistently

recognized international law as a persuasive authority

in considering the Eighth Amendment’s prohibition of

6 Id.

7 Id. at ¶ 4

8 In re Ohio Execution Protocol Litigation, 946 F.3d at 291 (6th

Cir. 2019).

9 Bucklew, 139 S. Ct. at 1124 (2019).

4

“cruel and unusual punishment,”10 in particular as a

reflection of the country’s “evolving standards of

decency.”11 The Advocates and the Colegio thus

respectfully urge the Court to grant certiorari and

consider international human rights standards in

assessing the constitutionality of Ohio’s lethal

injection protocol.

ARGUMENT

I. OHIO’S LETHAL INJECTION DRUG

PROTOCOL FAILS TO MINIMIZE THE

RISK OF SUFFERING TO THE

PETITIONER, IN VIOLATION OF THE

UNITED STATES’ OBLIGATIONS UNDER

INTERNATIONAL HUMAN RIGHTS LAW.

Ohio’s planned use of midazolam as the first drug in

its legal injection protocol will expose Petitioner a

substantial risk of severe pain during his execution.

That is so because midazolam cannot induce the state

of unconsciousness necessary to prevent Petitioner’s

suffering. It will likely only exacerbate it. Because of

this, Ohio’s lethal injection protocol violates the

United States’ obligations under international human

rights law of both global and regional reach.

10 Graham v. Fla., 560 U.S. 48, 80 (2010).

11 Trop v. Dulles, 356 U.S. 86, 101 (1958).

5

A. Ohio’s execution protocol is in breach of

international law norms and standards

embodied in United Nations human

rights treaties to which the United

States is a party.

At the global level, Ohio’s execution protocol violates

international legal standards applicable to the United

States by virtue of its ratification of various

international human rights treaties under the

auspices of the United Nations (“U.N.”).

In 1984, the U.N. Economic and Social Council

adopted a resolution, endorsed by the U.N. General

Assembly, that established the international

Safeguards Guaranteeing Protection of the Rights of

Those Facing the Death Penalty (“Safeguards”).12 The

Safeguards

recognize

that

“[w]here

capital

punishment occurs, it shall be carried out so as to

inflict the minimum possible suffering.”13 Since 1984,

this standard has been reaffirmed in several

international human rights treaties that the United

States has ratified.

In particular, upon ratifying the International

Covenant on Civil and Political Rights ( “ICCPR”),14

12 U.N. Economic and Social Council, Safeguards Guaranteeing

Protection of the Rights of Those Facing the Death Penalty, U.N.

Res. 1984/50, U.N. ESCOR, Annex, Supp. (No. 1), U.N. Doc.

E/1984/84 (May 25, 1984)[hereinafter Safeguards], endorsed by

the U.N. General Assembly in Resolution 39/118, available at

https://undocs.org/E/RES/1984/50.

13 Id.

at Annex ¶ 9.

14 G.A. Res. 2200A (XXI), International Covenant on Civil and

Political Rights, 999 U.N.T.S. 171 (Dec. 19, 1966) (ratified by the

United States on 8 June 1992) [hereinafter ICCPR].

6

and the Convention against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment

(“Torture Convention”),15 the United States joined

most of the world’s nations16 in recognizing that

torture and cruel, inhuman, and degrading treatment

or punishment, including execution methods that

cause avoidable suffering, violate fundamental human

rights, and are thus contrary to international law.

With respect to the ICCPR, the United States’

international obligations that limit the methods

through which the State may impose the death penalty

are set out in Articles 6 and 7. Article 6(1) recognizes

that “[e]very human being has the inherent right to

life” and that “[n]o one shall be arbitrarily deprived of

his life.”17 Under Article 6(2), in countries that have

not yet abolished the death penalty, its imposition is

restricted “only for the most serious crimes” and only

in a manner that is “not contrary to the provisions of

the present Covenant.”18 Article 7 provides that “[n]o

15 U.N. Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, 1465 U.N.T.S. 85 (Dec.

10, 1984) [hereinafter Convention Against Torture] (ratified by

the United States on Oct. 21, 1994).

16 As of Aug. 12, 2020, one hundred seventy-three states were

parties to the ICCPR, and one hundred and seventy states were

parties to the Torture Convention. Status of Ratification

Interactive Dashboard, Office of the High Commissioner for

Human

Rights,

United

Nations,

available

at

http://indicators.ohchr.org/ (last visited Aug.12, 2020).

17 ICCPR, at Article 6(1) (Dec. 19, 1966).

18 Id. at Article 6(2).

ICCPR.

The defined term “Covenant” refers to the

7

one shall be subjected to torture or to cruel, inhuman

or degrading treatment or punishment.”19

Authority to interpret Articles 6 and 7 is vested in

the U.N. Human Rights Committee (“Human Rights

Committee”). The Human Rights Committee is an

independent body of the U.N. established to oversee

the interpretation and implementation of the ICCPR

and monitor compliance.

According to the

International Court of Justice, the Human Rights

Committee’s interpretations must be “ascribe[d] great

weight” in order “to achieve the necessary clarity and

the essential consistency of international law, as well

as legal security.”20 The Human Rights Committee

has reviewed Articles 6 and 7 and concluded that any

execution method that causes unnecessary suffering

constitutes cruel, inhuman, or degrading punishment,

and is also an arbitrary deprivation of life, in breach of

these Articles.

In its General Comment No. 20 on Article 7, the

Human Rights Committee underscored that “when the

death penalty is applied by a State party for the most

serious crimes, it must not only be strictly limited in

accordance with article 6 but it must be carried out in

such a way as to cause the least possible physical and

mental suffering.”21 More recently, in October of 2018,

the Human Rights Committee issued General

19 ICCPR, at Article 7 (Dec. 19, 1966).

Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo),

Judgment, 2010 I.C.J. Rep. 639, ¶ 66 (Nov. 30, 2010).

20

21 U.N. Human Rights Comm., General Comment No. 20 - Article

7 (Prohibition of torture, or other cruel, inhuman or degrading

treatment or punishment), HRI/GEN/1/Rev.9 (Vol. I), ¶ 6 (Mar.

10,1992), available at https://undocs.org/HRI/GEN/1/Rev.9(Vol.I).

8

Comment No. 36 on Article 6, in which it confirmed

that “[t]he deprivation of life of individuals through

acts or omissions that violate provisions of the

Covenant other than article 6 is, as a rule, arbitrary in

nature,”22 and is, as such, itself a violation of Article 6.

The Human Rights Committee emphasized that

certain methods of execution, including the “injection

of untested lethal drugs […] are contrary to article 7,”23

and that “[f]or similar reasons, other painful and

humiliating methods of execution are also unlawful

under the Covenant.”24

The Human Rights Committee has time and time

again noted its deep concern over lethal injection

protocols employed in the United States. In its 2014

Concluding Observations on the United States’

compliance with the ICCPR, the Human Rights

Committee “note[d] with concern reports about the

administration, by some states, of untested lethal

drugs to execute prisoners and the withholding of

information about such drugs.”25 The Committee

indicated that execution practices, such as those

endorsed by Ohio, violate Article 7. The Committee

22 U.N. Human Rights Comm., General Comment No. 36 - Article

6 (the right to life), CCPR/C/GC/36, ¶ 17 (Oct. 30, 2018), available

at

https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documen

ts/1_Global/CCPR_C_GC_36_8785_E.pdf.

23 Id. ¶ 40 (emphasis added).

24 Id.

25 U.N. Human Rights Comm., Concluding Observations on the

Fourth Periodic Report submitted by the United States of

America under Article 40 of the Covenant, CCPR/C/USA/CO/4, ¶

8 (Apr. 23, 2014) [hereinafter HRC Fourth Periodic Report].

9

recommended that the United States “[e]nsure that

lethal drugs used for executions originate from legal

regulated sources, and are approved by the FDA and

that information on the origin and composition of such

drugs is made available to individuals scheduled for

execution.”26

Rather than follow the Human Rights Committee’s

guidance, Ohio has disregarded it. For example, Ohio

enacted legislation in 2015 that affirmatively prevents

the public from obtaining important information about

the source of the drugs used in its lethal injection

protocol.27 This has only increased the Human Rights

Committee’s concern over the use of such drugs in

executions, leading the Committee to request that the

United States “provide information on: . . . (c)

execution methods used in carrying out the death

penalty and whether those methods have been

reviewed since the previous reporting period; (d) the

compatibility of the lethal drugs used in executions

with the Covenant, following reports that they cause

severe physical and mental suffering . . . .”28

26 Id.

Ohio Rev. Code Ann. § 2949.221 (2015) (“Confidentiality of

manufacturers, suppliers, etc. of drugs for lethal injections.”).

Ohio’s 2015 secrecy law imposes punitive civil sanctions on

anyone who discloses protected information, and while it was only

applicable for 24-months, it provided any drug company that

supplied drugs during that time period protection for 20 years.

Ohio Rev. Code Ann. § 2949.221(D)(2) (2015). Because Ohio

purchased its current drug supply before the statute expired, the

supplier(s) of those drugs will likely remain unknown, and the

civil liability for disclosure applies.

27

28 U.N. Human Rights Comm., List of issues prior to submission

of the fifth periodic report of the United States of America,

10

Midazolam remains unapproved by the Food and

Drug Administration ( “FDA”) for use as a stand-alone

anesthetic.29 By continuing to use midazolam in its

lethal injection protocol, Ohio is openly disregarding

the Human Rights Committee’s recommendation that

the United States should “[e]nsure that lethal drugs

used for executions originate from legal regulated

sources, and are approved by the FDA.”30

The ICCPR requires governments that have ratified

the treaty to implement human rights standards

consistent with the treaty’s mandates.31 By exposing

Petitioner to a substantial risk of severe pain and

suffering during his execution, Ohio’s continued use of

its current legal injection protocol constitutes a form of

cruel, inhuman, or degrading punishment, and also an

arbitrary deprivation of life, in breach of Articles 6 and

7 of the ICCPR.

Like the ICCPR, the Torture Convention also

prohibits execution methods that inflict more than the

minimum possible suffering. The Torture Convention

“promote[s] universal respect for, and observance of,

human rights and fundamental freedoms” by

CCPR/C/USA/QPR/5, ¶ 13 (Apr. 18, 2019), available at

https://undocs.org/CCPR/C/USA/QPR/5.

29 Glossip v. Gross, 135 S. Ct. 2726, 2742 (2015).

30 HRC Fourth Periodic Report, ¶ 8.

ICCPR, Article 2 (2) (“Where not already provided for by

existing legislative or other measures, each State Party to the

present Covenant undertakes to take the necessary steps, in

accordance with its constitutional processes and with the

provisions of the present Covenant, to adopt such laws or other

measures as may be necessary to give effect to the rights

recognized in the present Covenant”).

31

11

memorializing the principle that “no one shall be

subjected to torture or to cruel, inhuman or degrading

treatment or punishment.”32 Parties to the Torture

Convention, including the United States, must also

take steps “to prevent . . . acts of cruel, inhuman or

degrading treatment or punishment” by public

officials, even when these acts do not rise to the level

of torture.33

In its Concluding Observations on the United States’

compliance with the Torture Convention, the

Committee against Torture – the body of experts

responsible for monitoring States’ implementation of

the Convention – has consistently highlighted the

human rights law issues posed by the lethal injection

protocols in use in the United States, and has urged

their review, so as to ensure compliance with its

obligations under the Torture Convention. In 2006,

during its second periodic review of the United States’

compliance with the Torture Convention, the

Committee against Torture underlined that it was

already “concerned at the fact that substantiated

information indicates that executions in the State

party can be accompanied by severe pain and suffering

(arts. 16, 1 and 2).”34

The Committee thus

recommended that “[t]he State party should carefully

review its execution methods, in particular lethal

32 Convention Against Torture, Preamble.

33 Id. at Article 16(1).

34 U.N. Comm. Against Torture, Concluding observations on the

second periodic report of the United States of America, U.N. Doc.

CAT/C/USA/CO/2, ¶ 31 (Jul. 25, 2006),available at

https://undocs.org/CAT/C/USA/CO/2.

12

injection, in order to prevent severe pain and

suffering.”35

In 2014, during its latest periodic review of the

United States’ compliance with the Torture

Convention, the Committee against Torture once

again expressed its serious “concern at reported cases

of excruciating pain and prolonged suffering that

procedural irregularities have caused condemned

prisoners in the course of their execution.”36 The

Committee added that it was “specially troubled by the

recent botched executions in Arizona, Oklahoma, and

Ohio,”37 all of which involved lethal injection protocols

that used midazolam.

The Committee again urged the United States to

“review its execution methods in order to prevent pain

and prolonged suffering,”38 underscoring that “the

safeguards guaranteeing protection of the rights of

those facing the death penalty stipulates that, where

capital punishment occurs, it shall be carried out so as

to inflict the minimum possible suffering (para. 9).”39

Re-confirming its ongoing concern over execution

methods employed in the United States, the

35 Id.

36 U.N. Comm. Against Torture, Concluding observations on the

combined third to fifth periodic reports of the United States of

America, U.N. Doc. CAT/C/USA/CO/3-5, ¶ 25 (Dec. 19, 2014)

[hereinafter Combined Third to Fifth Periodic Reports],available

at https://undocs.org/CAT/C/USA/CO/3-5.

37 Id.

38 Id.; Safeguards, ¶ 9.

39 Combined Third to Fifth Periodic Reports, ¶ 25; Safeguards, ¶

9.

13

Committee against Torture insisted in 2017 that the

United States continue to “provide information on the

[…] methods of execution […] used by the State party”

and whether “the State party [has already] reviewed

its execution methods in order to prevent severe pain

and suffering.”40

As a party to the Torture Convention, the United

States has agreed to take effective legislative,

administrative, judicial, or other measures to prevent

acts of torture and cruel, inhuman, or degrading

punishment within its jurisdiction.41 Consistent with

these obligations, Ohio should refrain from using

execution protocols that inflict severe pain upon the

condemned. Because Ohio’s current lethal injection

protocol exposes Petitioner to a substantial risk of

excruciating pain, it violates the United States’

international obligations, which the Court should have

the opportunity to consider in this matter.

B. Ohio’s execution protocol is in breach of

international law norms and standards

embodied in human rights treaties in

the Americas to which the United States

is a party.

At the regional level, as a Member State of the

Organization of American States (“OAS”), the United

States is also the subject of international obligations

arising out of the American Declaration of the Rights

40 U.N. Comm. Against Torture, List of issues prior to submission

of the sixth periodic report of the United States of America,

CAT/C/USA/QPR/6, ¶ 27 (Jan. 26, 2017), available at

https://digitallibrary.un.org/record/1306808?ln=en.

41 Convention Against Torture, Articles 2, 16(1); ICCPR, Articles

2 (2), 7 (Dec. 19, 1966).

14

and Duties of Man (“American Declaration”).42 As the

Inter-American Commission (which, along with the

Inter-American Court of Human Rights, monitors and

promotes the observance and protection of human

rights in the OAS Member States) has recently

explained, “[t]he American Declaration is, for the

Member States not parties to the American

Convention [like the United States], the source of

international obligations related to the OAS Charter”

and that the Declaration “crystallizes the fundamental

principles recognized by the American States.”43

Among the rights and obligations set forth in the

American Declaration is the right of every person to

life and to not be subjected to cruel, degrading, and

unusual punishment. Article I sets forth the right to

life, liberty, and personal security: “Every human

being has the right to life, liberty and the security of

his person.”44 In turn, Article XXVI establishes the

right to be free from punishment amounting to torture

in the following terms: “Every person accused of an

offense has the right . . . not to receive cruel, infamous

or unusual punishment.”45

42 American Declaration on the Rights and Duties of Man, Res.

XXX, Final Act of the Ninth International Conference of

American States (Pan American Union), Bogota, Colombia, Mar.

30-May 2, 1948 [hereinafter American Declaration],available at

https://www.oas.org/dil/access_to_information_human_right_Am

erican_Declaration_of_the_Rights_and_Duties_of_Man.pdf .

43 Edgar Tamayo Arias v. United States, Case 12,873, Inter-Am.

Comm’n H.R., Report No. 44/14, OEA/Ser. L/V/II.151, doc. 9, ¶

214, (2014).

44 American Declaration, Article I.

45

Id. at Article XXVI.

15

In recent years, the Inter-American Commission on

Human Rights (“Inter-American Commission”) has on

several occasions found the United States in breach of

its aforementioned obligations, in the specific context

of proceedings challenging lethal injection protocols as

contrary to a person’s rights to life, humane treatment,

and not to receive cruel, infamous, or unusual

punishment.46 In its 2015 decision in Rocha Diaz v.

United States, the Inter-American Commission

concluded that the lethal injection protocol employed

by Texas was “exposing Mr. Rocha to unjustified

anguish and fear that amount to a violation of his right

to humane treatment and not to receive cruel,

infamous or unusual punishment set forth in Articles

XXV and XXVI of the Declaration.”47 In arriving at

this conclusion, the Commission ascribed particular

weight to the fact that there was an acknowledged lack

of federal oversight regarding the drugs used in lethal

injections, noting that “according to a public statement

issued by the Food and Drug Administration on

January 4, 2011, ‘in keeping with established practice,

FDA does not review or approve products for the

46 See, e.g.,

Russell Bucklew v. United States, Case No. 12.958,

Inter-Am. Comm’n H.R., Report No. 71/18, OEA/Ser. L/V/II.168,

doc. 81 (2018); Felix Rocha Diaz v. United States Case No. 12.833,

Inter-Am. Comm’n H.R., Report No. 11/15, OEA/Ser. L/V/II.154,

doc. 5 (2015); Edgar Tamayo Arias v. United States Case 12.873,

Inter-Am. Comm’n H.R., Report No. 44/14, OEA/Ser. L/V/II.151

doc. 9 (2014).

47 Felix Rocha Diaz v. United States Case No. 12.833, Inter-Am.

Comm’n H.R., Report No. 11/15, OEA/Ser. L/V/II.154, doc. 5, ¶ 87

(2015).

16

purpose of lethal injection.’”48 This practice of the FDA

has not changed in recent years.49

The Inter-American Commission then emphasized

that “[s]tates have a reinforced special duty to ensure

that the method of execution does not constitute cruel,

infamous or unusual punishment,” adding that “the

drugs and doses to be used in case of executions by

lethal injection, as well as the composition of the

execution team and the training of its members should

be subjected to the highest quality control standards.

In particular, the drugs used should be subject to

government approval and regulation, the execution

team should have appropriate medical training and

lethal injection protocols should be available to the

public to guarantee public scrutiny.”50

The

Commission then stressed that, by virtue of the

continuous due process obligations that OAS Members

owe to defendants, “the State has the duty to inform

the person sentenced to death, in a timely manner,

about the drug and method of execution that will be

used, so he or she is not precluded from litigating the

right to be executed in a manner devoid of cruel and

unusual suffering.”51

48 Id. at ¶ 83.

See Whether the Food and Drug Administration Has

Jurisdiction over Articles Intended for Use in Lawful Executions,

at

pp.

9-11

(May

3,

2019),

available

at

https://www.justice.gov/olc/opinion/file/1162686/download.

49

50 Felix Rocha Diaz v. United States Case No. 12.833, Inter-Am.

Comm’n H.R., Report No. 11/15, OEA/Ser. L/V/II.154, doc. 5, ¶ 84

(2015) (emphasis added).

51 Id. ¶ 85 (emphasis added).

17

The same due process considerations were also

addressed in the recent 2018 decision of the InterAmerican Commission in Bucklew v. United States.52

In that case, the Inter-American Commission

examined Missouri’s lethal injection protocol, which is

identical to the one that Ohio employs, and analyzed

“whether the United States provided an effective

judicial remedy to Mr. Bucklew.”53 The Commission

concluded that the United States violated its

obligations under Articles XVIII and XXVI of the

American Declaration, as it had not provided Mr.

Bucklew “with effective access to judicial protection

with regard to his right to be free from torture and

cruel and inhuman punishment in the context of the

application of lethal injection.”54

In arriving at this conclusion, the Inter-American

Commission first reiterated its findings in Rocha Diaz

v. United States, that “[i]n capital cases the State has

an enhanced obligation to ensure that the person

sentenced to death has access to all the relevant

information regarding the manner in which he or she

is going to die,” since “[a]ny person subjected to the

death penalty must have the opportunity to challenge

every aspect of the execution procedure and such

information is necessary to file a challenge.”55

52 Russell Bucklew v. United States,

Case No. 12.958, Inter-Am.

Comm’n H.R., Report No. 71/18, OEA/Ser. L/V/II.168, doc. 81

(2018).

53 Id. ¶ 74.

54 Id. at ¶ 83.

55 Id. at ¶¶ 71-72.

18

The Inter-American Commission then examined the

legal requirements laid down in Glossip v. Gross, in

order to assess whether the remedy available to Mr.

Bucklew for challenging the method of his execution

was indeed effective.56 The Commission noted “that

the burden of argumentation and proof with respect of

each of [the prongs of the Glossip test] resides

primarily with the prisoner, and that the standard to

be met to establish the three concurring elements

jointly considered is very high.”57

The Commission underlined that “the effectiveness

of a remedy that imposes such [high] burdens in order

to succeed must be analyzed . . . under the undisputed

premise that the prohibition of torture is a peremptory

norm of international law” and that, as such, “[t]he

United States has an obligation to ensure that no such

treatment is imposed on persons under its

jurisdiction.”58

Analyzing the remedies available to Mr. Bucklew

under this premise, the Inter-American Commission

held that the summary dismissal of Mr. Bucklew’s

claims by the lower courts due to his failure to identify

a readily available and less painful alternative for his

execution demonstrated “a failure [of the United

States] to act with due diligence to fully examine

[those claims] in light of the prohibition of torture and

56 Id. at ¶ 75.

57 Russell Bucklew v. United States,

Case No. 12.958, Inter-Am.

Comm’n H.R., Report No. 71/18, OEA/Ser. L/V/II.168, doc. 81, ¶

76 (2018).

58 Id. at ¶ 80.

19

cruel and inhuman punishment.”59 Pertinently, the

Commission underlined that “the standards applied

[under Glossip v. Gross] effectively condition the

granting of relief from a situation of cruel and

inhuman treatment on a showing by the person

concerned of a feasible alternative that will cause less

suffering.”60 However, as the Commission explained,

“[b]oth the conditionality and the placing of the burden

of proof on the affected person [under the Glossip test]

are inconsistent with the guarantees required from an

OAS Member State.”61

This last observation of the Inter-American

Commission’s echoes the findings of the U.N. Special

Rapporteur on torture and other cruel, inhuman, or

degrading treatment or punishment (“Special

Rapporteur”) in his 2012 Interim Report to the U.N.

General Assembly.62 In his Report, the Special

Rapporteur called upon States that retain the death

penalty “to ensure that the method of execution

employed causes the least possible physical and

mental suffering and that it does not violate the

prohibition of torture and cruel, inhuman or degrading

treatment; establish that there are no more humane

alternatives available; and justify the use of a

59 Russell Bucklew v. United States,

Case No. 12.958, Inter-Am.

Comm’n H.R., Report No. 71/18, OEA/Ser. L/V/II.168, doc. 81, ¶

82 (2018).

60 Id.

61 Id. (emphasis added).

62 Juan E. Mendez, Interim report of the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or

punishment, U.N. Doc. A/67/279, ¶ 80(b) (Aug. 9, 2012).

20

particular method of execution.”63 Like the InterAmerican Commission in Bucklew v. United States,

the Special Rapporteur also reiterated that, in

establishing compliance with the above requirements,

“the burden of proof is on the State.”64 In the aftermath

of the Inter-American Commission’s aforementioned

decision, this Court has tried to align itself with

applicable international human rights norms

concerning the burden of proof in capital punishment

cases. Notably, in Bucklew v. Precythe, this Court

already emphasized that the burden of a petitioner to

identify a readily available alternative method of

execution should not “be overstated,” especially where

“an inmate [is] facing a serious risk of pain.”65

Nonetheless, the Sixth Circuit’s ruling in the present

case has effectively turned these efforts on their head.

The Sixth Circuit categorically judged Petitioner’s

proposed alternative execution method as “not viable”

and “experiment[al],”66 without undertaking the

comparative analysis that Bucklew requires.67 By

allowing Ohio to reject as “unavailable” a drug that it

has never tried to obtain, the Sixth Circuit in fact

“overstated” Petitioner’s “burden of showing a readily

available alternative” method of execution.68 This is

63 Id. at ¶ 80(b) (emphasis added).

64 Id.

65 Bucklew, 139 S. Ct. at 1128–29.

66 In re Ohio Execution Protocol Litigation, 946 F.3d 287, 291 (6th

Cir. 2019).

67 Bucklew, 139 S. Ct. at 1124.

68 Id. at 1128.

21

at odds with applicable international human rights

norms, which at a minimum demand compliance with

this Court’s findings in Bucklew v. Precythe,

prohibiting the “overstatement” of a petitioner’s

burden to propose an alternative execution method.69

Moreover, in the instant case, Petitioner’s burden is

even heavier to discharge because of Ohio’s recently

enacted secrecy law.70 This law is plainly at odds with

the United States’ “enhanced obligation to ensure that

the person sentenced to death has access to all the

relevant information regarding the manner in which

he or she is going to die,” so that Petitioner “is not

precluded from litigating the right to be executed in a

manner devoid of cruel and unusual suffering.”71

On the basis of the foregoing, it is evident that the

Sixth Circuit’s overstatement of the burden of proof on

Petitioner under its erroneous application of Glossip v.

Gross is inconsistent with the due process guarantees

related to the prohibition against cruel, infamous, or

unusual punishment enshrined in Article XXVI of the

American Declaration, which the United States, as an

OAS Member State, is required to follow.72

*

*

*

69 Id. at 1128–29.

Ohio Rev. Code Ann. § 2949.221 (2015) (“Confidentiality of

manufacturers, suppliers, etc. of drugs for lethal injections.”).

70

71 Russell Bucklew v. United States,

Case No. 12.958, Inter-Am.

Comm’n H.R., Report No. 71/18, OEA/Ser. L/V/II.168, doc. 81, ¶¶

71-72 (2018).

72 Russell Bucklew v. United States,

Case No. 12.958, Inter-Am.

Comm’n H.R., Report No. 71/18, OEA/Ser. L/V/II.168, doc. 81, ¶

82 (2018).

22

Ohio’s execution protocol requires administration of

(1) midazolam hydrochloride, (2) a paralytic, and (3)

potassium chloride. Midazolam is intended to function

as a type of sedative, numbing the patient, before the

paralytic is administered. The paralytic is followed by

an injection of potassium chloride, which will stop

Henness’s heart. By its nature, potassium chloride

causes an intense burning pain inside Henness’s veins,

but he will not be able to react to it because of the

paralytic. Midazolam, however, is not recommended

or approved for use as a sole anesthetic during painful

surgery for the simple reason that it is ineffective in

actually preventing the sensation of pain.73 Although

he will be paralyzed and thus unable to cry out,

Henness will remain conscious when the potassium

chloride is administered, and almost certainly able to

experience the excruciating pain of its administration.

The district court found that a 500 mg dose of

midazolam would likely cause pulmonary edema, or

chest tightness, chest pain, and sensations of

drowning, suffocating, and dying, which would also by

itself qualify as a form of pain prohibited by the Eighth

Amendment.74 The district court also found that

Henness satisfied the first prong of Glossip by

demonstrating that Ohio’s execution protocol will

cause serious pain that he is certain, or at least very

likely, to experience.75 The district court concluded

that Midazolam has no analgesic properties, and that

73 Glossip, 135 S. Ct. at 2742.

74 Id.

75 Campbell v. Kasich, 881 F.3d 447, 450 (6th Cir. 2018) (quoting

Fears v. Morgan, 860 F.3d 881, 886 (6th Cir.) (en banc), cert.

denied, ––– U.S. ––––, 137 S. Ct. 2238, 198 L.Ed.2d 761 (2017)).

23

the combination of potassium chloride and the

paralytic agent could cause a fully conscious person to

endure needless suffering. 76 These facts confirm that

Ohio’s continued use of midazolam in its lethal

injection protocol exposes Henness to a substantial

risk of severe pain in violation of numerous obligations

imposed on the United States under the ICCPR, the

Torture Convention and the American Declaration.

These violations warrant this Court’s consideration,

and thus support a grant of certiorari review.

II. INTERNATIONAL LAW PROVIDES

PERSUASIVE AUTHORITY FOR

INTERPRETING THE CONSTITUTIONAL

ISSUES BEFORE THIS COURT.

Finally, the extent to which Ohio’s procedures

violate international law informs the proper

construction of the Eighth Amendment as it applies

this this matter. As this Court has recognized,

international law provides relevant, persuasive

authority useful to the interpretation of the U.S.

Constitution, and that it will look to international law

in particular in considering the Eighth Amendment’s

prohibition against cruel and unusual punishment.77

In evaluating whether a punishment is “cruel and

unusual,” this Court has looked to “evolving standards

of decency that mark a maturing of society.”78 And

In re Ohio Execution Protocol Litigation, 937 F.3d 759, 762

(2019).

76

77 U.S. Const. amend VIII.

78 Trop, 356 U.S. at 101.

24

notably relevant to this inquiry is the perspective that

international law brings to such matters.

In Roper v. Simmons, this Court held that execution

of individuals for crimes committed as juveniles is a

disproportionate punishment that violates the Eighth

Amendment. In reaching its decision, the Court

looked “to the laws of other countries and to

international authorities as instructive for its

interpretation of the Eighth Amendment’s prohibition

of cruel and unusual punishments.”79 More recently,

in Graham v. Florida, the Court affirmed the

relevance of international law to the proper

interpretation of the Eighth Amendment. In its

analysis of the constitutionality of Florida’s juvenile

life without parole policies, the Court examined the

practices of other countries in sentencing juveniles,

continuing the Court’s “longstanding practice in

noting the global consensus against the sentencing

practice in question.”80 The Court observed that, even

in the absence of on-point international law binding on

the United States, international law, agreements, and

practices are “relevant to the Eighth Amendment . . .

because the judgment of the world’s nations that a

particular sentencing practice is inconsistent with

basic principles of decency demonstrates that the

Court’s rationale has respected reasoning to support

it.”81

79 Roper v. Simmons, 543 U.S. 551, 575 (2005) (citing Trop, 356

U.S. at 102-103).

80 Graham v. Fla., 560 U.S. at 80.

81 Id. at 82.

25

This Court has otherwise consulted and cited

international authorities and the practices and

decisions of other nations in assessing whether

domestic practices comport with evolving standards of

decency in the treatment of persons condemned to

death.82

Ohio’s lethal injection protocol plainly

violates the United States’ international obligations.

This is relevant in establishing not only (1) the

importance of the question presented and (2) how the

decision below conflicts with those obligations, but also

(3) how the decision below conflicts with this Court’s

use of international norms in its interpretation of the

Eighth Amendment. The Sixth Circuit concluded that

Petitioner must be out of court because the severe pain

he is likely to suffer is no worse than the horrific

suffering experienced during a botched hanging. The

Sixth Circuit turned the relevant analysis on its head,

looking backwards rather than contemporaneously

See, e.g., Atkins v. Va., 536 U.S. 304, 316 n. 21 (2002),

(examining the opinions of “the world community” to support its

conclusion that execution of persons with severe intellectual

disabilities would offend the standards of decency required by the

Eighth Amendment); Thompson v. Okla., 487 U.S. 815, 830-31

(1988) (Stevens, J.) (looking to the opinions and practices of “other

nations that share our Anglo-American heritage” and “leading

members of the Western European community” as aids to the

proper interpretation of the Eighth Amendment). This Court has

also found international law relevant to the interpretation of

other constitutional provisions. See Lawrence v. Tex., 539 U.S.

558, 560 (2003) (referencing a decision of the European Court of

Human Rights to determine that a Texas sodomy law violated

plaintiff’s privacy rights under the due process clause of the

Fourteenth Amendment); Grutter v. Bollinger, 539 U.S. 306, 344

(2003) (Ginsburg, J., concurring, joined by Breyer, J.) (noting that

the Court’s opinion with regard to affirmative action “accords

with the international understanding of the office of affirmative

action” reflected in four international treaties).

82

26

and comparatively.

warranted.

This Court’s review is thus

CONCLUSION

For the reasons articulated above, as well as those

set forth in the Petition, this Court should grant

certiorari review of the Sixth Circuit’s decision in this

matter.

Respectfully submitted,

AMY BERGQUIST

Counsel of Record

THE ADVOCATES FOR

HUMAN RIGHTS

330 Second Avenue South

Suite 800

Minneapolis, MN 55401

(612) 341-3302

abergquist@advrights.org

ERICA STEIN

G. ERIC BRUNSTAD, JR.

BLAIR KUYKENDALL

DECHERT LLP

1900 K Street NW

Washington, DC 20006

(202) 261-3361

erica.stein@dechert.com

KEVIN MIGUEL RIVERAMEDINA

COLEGIO DE ABOGADOS Y

ABOGADAS DE PUERTO RICO

808 Avenida Juan Ponce

de León

San Juan, Puerto Rico

00907

(787) 721-3358

lawyers@capr.org

Counsel for Amicus Curiae

August 18, 2020