Amicus Curiae Brief — Bucklew v. Precythe, 139 S. Ct. 306 (2018) (No. 17-8151)

No. 17-8151

Sn the

Supreme Court of the United States

RUSSELL BUCKLEW

Petitioner,

V.

ANNE PRECYTHE, ET AL.

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Brief for Amici Curiae Megan McCracken and

Jennifer Moreno in Support of Petitioner

GINGER D. ANDERS

COUNSEL OF RECORD

CHRISTOPHER M. LYNCH

DAHLIA MIGNOUNA

MUNGER, TOLLES & OLSON LLP

1155 F Street N.W.

Seventh Floor

Washington, DC 20004-1357

(202) 220-1100

ginger.anders@mto.com

Counsel for Amici Curiae Megan McCracken and Jennifer

Moreno

PAGE

a iii

ELLE SADDER ATEN ID I

Introduction and Summary of Argument..................... 2

IT Tiincicrcscmtdhniunaheescsatpienteinenciiiialibes tinlanssasecticdenibentoniiies 6

I. Prisoners with Unique Medical

Conditions Have Routinely Been Able

to Successfully Predict the Needless

Suffering Imposed on Them by Their

State’s Execution Protocol ...........................00000... 6

A. ERT RE ae etna ne rent 7

B EI ener ae 10

C. REESE Une rene oct 15

Il. As-Applied Challenges Based on an

Inmate’s Specific Medical Condition Are

Limited in Scope, Easily Evaluated, and

Assist the State in Its Attempts to

Conduct Humane Executions............................ 18

A. As-Applied Challenges Address

Specific, Predictable Risks of

el EA ED eet en 18

B. As-Applied Challenges Are

Administrable And Serve State

Conclusion

ili

TABLE OF AUTHORITIES

CASES

Baze v. Rees,

Ee

Bell Atlantic Corp. v. Twombly,

GP ih SI QUI Piccrseccacsssesnsenscssossecocns

Glossip v. Gross,

136 S. Ct. STDS (BOUB)..........cccccccccccccscceees

Raby v. Livingston,

600 F.3d 552 (5th Cir. 2010)...................

Shaw v. Anderson,

No. 18-CV-140-JPS, 2018 WL

3243991 (E.D. Wis. July 3, 2018)...........

OTHER AUTHORITIES

Andrew Welsh-Huggins, ‘Agonizing’

Execution Takes Nearly 25 Minutes,

Fort Wayne Journal Gazette (Jan.

Bg Ce vccascncicinianiscasiietieniearabninitanienicmsenecen

Dana Ford and Ashley Fantz,

Controversial Execution in Ohio

Uses New Drug Combination,

CNN.com (Jan. 17, 2014).............0000000000.

iv

David Brennan, Doyle Lee Hamm:

Botched Execution Death Row

Prisoner Sues Alabama, Asks for

Vacated Sentence, Newsweek (Mar.

Debra Killalea, Doyle Hamm: Botched

Execution Leaves Inmate with

Shocking Injuries, News.Com.Au,

EAE ERS Sa Oe 15

Hannah Riley, Alva Campbell Jr.’s

Execution Halted Midway Through,

Huffington Post (Nov. 16, 2017).......................... 16

Lawrence Hammer, I] Witnessed Ohio’s

Execution of Dennis McGuire. What

I Saw Was Inhumane, The

EE 9

Liam Stack, Execution in Ohio Is

Halted After No Usable Vein Can Be

Found, New York Times (Nov 15,

Se hiciditachineclndinnaiiianmaniiipiiimbinadiattinsinetmssennesetinetiess 17

Mark Gokavi, Official ‘Wondered What

Was Going On’ in McGuire

Execution, Dayton Daily News (Jan.

i enn colic thviniibtaecininnenipantaadsbdaiiatinitihimseneienssesetonaanee 10

Mark Hodge, Wishing for Death, The

NG iat ctbirenintnsainnncnnictittnmsncenesessentinedenie 15

Marty Schladen, Alva Campbell: Ohio

Execution Attempt Falls Apart on

Gurney, The Columbus Dispatch

ly ee eee ccattideniinninnsarininciinmnnsisscciensesneceseinnes 17

Postmedia Breaking News, ‘Oh, My

God’: Daughter Reveals She Covered

Her Ears During Final Moments of

Dad’s ‘Agonizing’ 26-Minute

Bscestians Glam. 17, BOLE) .....cccccccceseccosseccsescscscecseee 8

Sandee LaMotte, Death Row Inmate

Sues After ‘Botched’ Execution, CNN

8 15

Tracy Connor, Alva Campbell, Inmate

Who Survived Execution Try, Dies in

Ohio Prison, NBC News (Mar. 3,

INTEREST OF AMICI CURIAE‘

Amici Megan McCracken and Jennifer Moreno are

experienced attorneys who have extensively studied

methods of execution, including lethal injection,

since 2007.4 They have served as expert counsel

advising lawyers representing inmates in lethal

injection challenges, including as-applied challenges.

Amici therefore have extensive expertise in the

nature of the risks posed by various lethal injection

procedures, including the risks posed to inmates who

have specific severe medical conditions that could

make the lethal injection process uniquely torturous

when applied to them. Amici were involved in the

as-applied challenges described in this brief, and are

therefore familiar with the circumstances in which

an inmate’s unique medical condition creates a real,

predictable risk that the lethal injection procedure

will interact with the inmate’s medical condition to

cause severe pain and suffering.

‘ Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae state that no counsel for a party authored this brief in

whole or in part, and no party or counsel for a party, or any

other person other than amici curiae or their counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented in writing

to the filing of this brief.

* Amici file this brief in their individual capacities. Ms.

McCracken is affiliated with the University of California,

Berkeley, School of Law Death Penalty Clinic, and Ms. Moreno

is a staff attorney employed by that clinic. That institutional

affiliation is provided for identification purposes only.

As attorneys advising in cases involving as-applied

challenges to lethal injection procedures, amici have

an interest in the proper development of the law

governing those challenges. Amici also have an

interest in ensuring that the inmates on whose cases

they advise are executed in a humane manner and

are not subjected to unnecessary pain and suffering.

INTRODUCTION AND SUMMARY OF ARGUMENT

In this case, Petitioner Russell Bucklew does not

challenge the constitutionality of the death penalty

or of Missouri’s lethal injection protocol. He

challenges only the _ constitutionality of the

application of this protocol to him, based on his

known, unique medical condition, cavernous

hemangioma. Mr. Bucklew claims that the specific

interaction between this rare condition and

Missouri’s particular execution protocol gives rise to

a significant risk of severe, unnecessary pain that

would not be present in the ordinary case.

I. The risk that Mr. Bucklew has identified is

real. In prior, similar cases in which inmates have

presented evidence that their severe medical

conditions cause demonstrated physical effects that

will interact with specific aspects of a lethal injection

procedure to cause unconstitutional suffering, the

inmates’ predictions were proven right when the

state attempted to execute them. These inmates

predicted with precise accuracy the unecessary

pain and suffering that execution pursuant to the

standard protocol would cause.

Dennis McGuire, executed in Ohio in 2014,

presented evidence that in light of his breathing

condition, administration of the lethal injection

drugs would cause him to experience suffocation for

a significant period before he lost consciousness. Mr.

McGuire was right: his execution was the longest in

Ohio’s history, during which he visibly struggled,

choked, and gasped for air. Doyle Hamm, who

Alabama attempted to execute in 2018, predicted

that his lymphatic cancer and compromised vascular

syster) would render his veins uniquely inaccessible,

even through a more invasive central line procedure.

The execution team attempted for several hours to

insert an IV, eventually using needles to

unsuccessfully probe deep within his groin tissue to

locate a central vein and causing severe bleeding.

When the state abandoned the attempt to execute

him, Mr. Hamm could not walk unsupported. And

Alva Campbell, whom Ohio tried and failed to

execute in 2017, predicted his numerous medical

conditions would make it impossible to access his

veins. After numerous painful attempts to find an

IV, the execution team called off the execution.

Il. An as-applied challenge like Mr. Bucklew’s is

a narrow claim that relies on concrete medical

evidence, falls well within the court’s competence,

and serves important interests. Such challenges do

not “attack . . . the death penalty itself.” Glossip v.

Gross, 135 S. Ct. 2726, 2738 (2015). They presume

the death penalty’s constitutionality, as well as that

of the particular protocol at issue. They challenge

only the specific application of a given protocol to the

particular inmate because of the protocol’s expected

interaction with the inmate’s known, unique medical

In order to demonstrate a “substantial risk of

serious harm,” Baze v. Rees, 553 U.S. 35, 50 (2008)

(plurality op.), an inmate raising an as-applied

challenge must present evidence that (1) he has a

particular medical condition that (2) will interact

with the state’s execution protocol in identifiable,

predictable ways that (3) render it “sure or very

likely to result in” unconstitutional pain. Glossip,

135 S. Ct. at 2739. Thus, the inmate may not simply

identify his medical condition; he must explain how

that condition will interact with identified aspects of

the particular execution protocol. In addition, the

inmate must demonstrate that the resulting pain

rises to the level of unconstitutional suffering. When

inmates present this evidence—as Messrs. McGuire,

Hamm, and Campbell did—they establish that their

execution involves special circumstances that must

be addressed in order for them to be executed

consistently with the Eighth Amendment. The

execution attempts described above prove beyond

any doubt that severe consequences flow from

disregarding inmates’ specific, substantiated medical

concerns.

Because as-applied challenges like Mr. Bucklew’s

are based on specific medical conditions that interact

with aspects of the lethal injection process, they are

necessarily brought only infrequently. And when an

inmate brings such a claim, it will present concrete

factual issues that are well within the court's

adjudicative competence and the state’s own

knowledge. Because inmates bringing such

challenges will likely have been treated for the

relevant conditions in prison, the state will have

access to their medical records and will be unlikely

to be blindsided by such challenges. The court can

do go forward, prison medical records, together with

expert testimony and, in appropriate cases, targeted

discovery, will provide the court with a concrete

factual basis on which to evaluate the claim. The

well-defined medical issues involved are of the sort

that courts adjudicate all the time, including in

garden-variety prison-conditions litigation. For

these reasons, as-applied challenges do not raise the

concerns about general federal supervision of state

execution procedures that this Court identified in

Baze and Glossip.

At the same time, as-applied challenges serve

critical interests. They facilitate a dialogue between

the inmate and the state to secure the common goal

of ensuring that executions are administered in

accordance with the Constitution. Botched

es ee ee

by the inmate involved—damage the credibility of

the state’s execution procedures and traumatize

witnesses. By raising the specific issues presented

by his or her unique medical condition, inmates can

help states avoid needlessly inflicting severe pain

when executing a severely ill inmate.

ARGUMENT

L. Prisoners with Unique Medical

Conditions Have Routinely Been Able to

Successfully Predict the Needless

Suffering Imposed on Them by Their

State’s Execution Protocol

Petitioner Russell Bucklew brings an as-applied

challenge to Missouri’s standard execution protocol

on the grounds that executing him pursuant to that

protocol will cause him to, among other harms,

suffocate and choke on his own blood. That unique

danger is the result of the interaction of Missouri's

protocol with the blood-filled tumors in Mr.

Bucklew’s throat that result from his rare medical

condition, cavernous hemangioma.

interact with identified aspects of the execution

procedure in a manner that causes unconstitutional

suffering, their concerns are frequently well-

founded. Although previous as-applied challenges

generally have been rejected by courts, subsequent

attempts to execute the inmates have borne out the

severe pain identified by prisoners in cases like Mr.

Bucklew’s are real. Disregarding these concerns has

resulted in extraordinary and unnecessary suffering.

A. Dennis McGuire

Prior to his execution in January 2014, Dennis

McGuire challenged Ohio’s execution protocol as it

applied to him, contending that “following [the

state’s} protocol [would] subject [him] to an

unconstitutional substantial risk of severe pain that

constitutes cruel and unusual punishment.” Opinion

and Order at 2, In re Ohio Execution Protocol

Litigation, No. 2:11-cv-01016 (S.D. Ohio Jan. 13,

2014), ECF No. 390 (“McGuire Op.”).

Mr. McGuire alleged that his particular medical

and physical characteristics increased his risk of

yo sap thet VE co tn 0 Samana he

before the drugs alleviate his awareness of [the

sensation].” Id. Mr. McGuire contended that a

execution protocol, would alleviate the risk posed by

his condition. Id. at 7-8.

The district court held that Mr. McGuire “has

failed to persuade that he is likely to experience th[e]|

condition lof air hunger].” Jd. at 10. Although the

district court acknowledged that “Ohio’s current

protocol presents an experiment in lethal injection

processes” and that the inquiry was “at best a

contest of probabilities” and ‘lacking actual

application in studies,” it concluded that Mr.

McGuire had not established that he was sufficiently

likely to experience air hunger to prevail. Jd. at 10-

11. In particular, the court rejected Mr. McGuire’s

medical expert’s estimate that there would be a five-

minute period during which he would experience air

hunger before the drugs eliminated his awareness.

Id. Mr. McGuire’s petition was denied, and he was

executed on January 16, 2014.

The results were just as predicted, except that Mr.

McGuire’s expert’s calculation of a five-minute

window during which he would suffer was far too

conservative. It took almost a half hour for Mr.

McGuire to die, “the longest execution in Ohio since

the state resumed capital punishment” in 1999.

Postmedia Breaking News, ‘Oh, My God’: Daughter

Reveals She Covered Her Ears During Final

Moments of Dad’s ‘Agonizing’ 26-Minute Execution

(Jan. 17, 2014). Just as Mr. McGuire predicted,

observers to the execution noted that Mr. McGuire

appeared to be suffering deeply, choking, struggling,

and gasping for air for more than 10 minutes, as “his

body was slowly strangling itself from the inside,

rather than causing him to drift off to sleep [as was

intended].” Matt McCarthy, What's the Best Way to

Execute Someone?; Doctors Say Lethal Injection Is

Often Botched and Horrific, Slate Magazine (March

27, 2014).

Mr. McGuire’s spiritual advisor, who observed the

execution, described the experience:

At about 10.3lam, his stomach swelled

up in an unusual way, as though he had

a hernia or something like that.

Between 10.33am and 10.44am — I

could see a clock on the wall of the

death house — he struggled and gasped

audibly for air.

I was aghast. Over those 11 minutes or

more he was fighting for breath, and I

could see both of his fists were clenched

the entire time. His gasps could be

heard through the glass wall that

separated us. Towards the end, the

gasping faded into small puffs of his

mouth. It was much like a fish lying

along the shore puffing for that one

gasp of air that would allow it to

breathe.

Lawrence Hammer, | Witnessed Ohio’s Execution of

Dennis McGuire. What I Saw Was Inhumane, The

Guardian (Jan. 22, 2014), https://www.theguardian.

com/commentisfree/20 1 4/jan/22/ohio-mcguire-

execution-untested-lethal-injection-inhumane.

Another observer, Columbus Dispatch reporter Alan

Johnson, similarly explained that Mr. McGuire

seemed to be gasping for air for over 10 minutes,

describing that Mr. McGuire “gasped deeply. It was

kind of a rattling, guttural sound. There was kind of

a snorting through his nose. A couple of times, he

definitely appeared to be choking.” Dana Ford and

Ashley Fantz, Controversial Execution in Ohio Uses

New Drug Combination, CNN.com (Jan. 17, 2014),

https://www.cnn.com/2014/01/16/ustice/ohio-dennis-

10

mcguire-execution/index.html; see also Andrew

Welsh-Huggins, ‘Agonizing’ Execution Takes Nearly

25 Minutes, Fort Wayne Journal Gazette (Jan. 17,

2014). And Ohio’s execution team leader testified in

a subsequent proceeding that Mr. McGuire’s

executions “affected him unlike any other and that

he ‘was wondering what was going on™ during the

execution, because Mr. McGuire’s body moved in a

way unseen in any of Ohio's other modern

executions. Mark Gokavi, Official ‘Wondered What

Was Going On’ in McGuire Execution, Dayton Daily

News (Jan. 3, 2017), https://www.daytondaily

news.com/news/crime—law/official-wondered-what-

was-going-mcguire-execution/9008qZYkWsnagye

TKOCWvJ.

After Mr. McGuire’s execution, Ohio agreed to

change its execution protocol, and both the state and

a federal court placed a temporary moratorium on

executions in the state. Anesthesiologist: Ohio

Inmate Suffered During Execution, USAToday (Aug.

12, 2014).

B. Doyle Lee Hamm

Alabama’s failed attempt to execute Doyle Lee

Hamm provides another example of the predictive

accuracy of specific as-applied challenges like Mr.

Bucklew’s. Mr. Hamm, who has been on Alabama’s

death row for over thirty years, see Compl. at 1,

Hamm v. Dunn, 2:17-cv-02083 (N.D. Ala., Dec. 13

2017), ECF No. 1 (“Hamm Compl.”); First Am.

Compl. at 2, Hamm, 2:17-cv-02083 (N.D. Ala., Jan.

16 2018), ECF No. 15 (“Hamm Am. Compl.”), suffers

from several severe medical conditions that have

11

seriously compromised his veins, Hamm Compl. at 1;

Hamm Am. Compl. at 2; see Prelim. Report of Dr.

Mark Heath at 3, Hamm v. Dunn, 2:17-cv-02083

(N.D. Ala., Jan. 16, 2018), ECF No. 15-1 (“Oct. Heath

Report”). Specifically, Mr. Hamm was diagnosed

with lymphatic cancer in 2014. See Hamm Compl. at

1, 7 Wf 14-15, 9 ¥ 20; Hamm Am. Compl. at 2, 8-9

Wi 14-15, 11 ¥ 20; Oct. Heath Report at 2, 5. Likely

as a result of that cancer, Mr. Hamm experienced

lymphadenopathy—the swelling of the lymph nodes

in his body. See Hamm Compl. at 10 4 24, 12-13

q 31; Hamm Am. Compl. at 12 ¥ 24, 14-15 J 30; Oct.

Heath Report at 4. He also suffers from “severely

compromised veins” as a result of using intravenous

drugs for years. See Hamm Compl. at 6 4 13, 13

q 33; Hamm Am. Compl. at 8 413; 15 9 32; Oct.

Heath Report at 3.

In the months leading up to his execution, Mr.

Hamm brought an as-applied challenge to Alabama’s

lethal injection protocol. See Hamm Compl. at 2-3;

Hamm Am. Compl. at 2. As part of that challenge,

Mr. Hamm explained why the specific combination of

his lymphatic cancer and compromised blood vessels

ensured that application of Alabama’s lethal

injection protocol would put him through significant

pain and suffering, and proposed that Alabama

execute him instead via oral injection of lethal drugs.

See Hamm Compl. at 2-3; Hamm Am. Compl. at 3-4;

see also Oct. Heath Report at 5-6. Mr. Hamm,

supported by his medical expert, contended that his

veins are “severely compromised, making traditional

peripheral intravenous access extremely difficult, if

not impossible.” Hamm Compl. at 2; Hamm Am.

12

Compl. at 3; see Oct. Heath Report at 3, 6-7; Report

of Dr. Mark Heath at 4, Hamm v. Dunn, 2:17-cv-

02083 (N.D. Ala., Jan. 16, 2018), ECF No. 14-5 (“Jan.

Heath Report”) (“[Pleripheral intravenous access in

Mr. Hamm would be extremely difficult or

impossible.”).

Mr. Hamm further predicted that, because

corrections personnel would be unable to access his

peripheral veins, they would then attempt to access

a central vein. Hamm Compl. at 18 { 7; Hamm Am.

Compl. at 22-23 4 56; Oct. Heath Report at 5. That

process involves accessing a larger vein located

within deep tissue rather than close to the skin, and

therefore requires specialized training and

employment of an ultrasound machine to reliably

locate the central vein. Mr. Hamm presented

evidence that any attempt to access a central vein

would be further complicated in his case because of

his lymphatic cancer. See Hamm Compl. at 16 { 41,

18 4 7; Hamm Am. Compl. at 20 ¥ 48; 22 ¥ 56; Oct.

Heath Report at 5-6. As he explained, each of the

three central veins that is typically accessed in such

a procedure—the internal jugular vein in the neck,

the subclavian vein near the clavicle, or the femoral

vein in the groin—is located near the body’s largest

clusters of lymph nodes. Hamm Compl. at 15 { 40;

Hamm Am. Compl. at 20 447. Mr. Hamm’s lymph

nodes swell unpredictably, however, making central

venous access more difficult and dangerous than it

would be for others without his condition. Hamm

Compl. at 2; Hamm Am. Compl. at 3; see also Hamm

Compl. at 12-13 44 31-32 (describing tumors on Mr.

Hamm’s chest, neck, and groin, and concluding that

13

Alabama “is not equipped to achieve venous access

in Mr. Hamm’s case”); Oct. Heath Report at 4, 7

(same). Mr. Hamm made clear that “establishing

[central vein] access risks a bloody and excruciating

experience” for him. Hamm Compl. at 2; Hamm Am.

Compl. at 3.

Notwithstanding Mr. Hamm’s explanation of the

significant risks described above, his execution

proceeded as scheduled. Mr. Hamm’s predictions in

his court filings came to pass. On February 22,

2018, the execution team attempted for several

hours to find a vein that they could use to execute

Mr. Hamm. See Hamm’s Report and Motion for an

Order at 2, Hamm v. Dunn, 2:17-CV-02083 (N.D.

Ala., Feb 23, 2018), ECF No. 86 (“Hamm’s Report”);

David Brennan, Doyle Lee Hamm: Botched Execution

Death Row Prisoner Sues Alabama, Asks for Vacated

Sentence, Newsweek (Mar. 8, 2018), http//www.news

week.com/botched-execution-death-row-prisoner-

sues-alabama-asks-vacated-sentence-836127 (“[S|taff

and medical personnel tried and failed to find

suitable veins in |Hamm’s] groin, feet and legs for

2.5 hours.”).

First, the execution team tried and failed to access

peripheral veins in Mr. Hamm’s legs and ankles.

Hamm’s Report at 2. Two members of the IV

execution team inserted needles repeatedly into Mr.

Hamm’s left and right legs and ankles in search of a

vein. Jd. at 2. Each attempt to access a vein

involved penetrating his skin and then repeatedly

probing the needle around in search of a vein,

causing Mr. Hamm extreme pain. Expert Report of

Dr. Mark Heath Re. Examination of Mr. Hamm at 2,

14

Hamm v. Dunn, 2:17-CV-02083 (N.D. Ala., Mar. 5,

2018), ECF No. 93 (“Mar. Heath Report”). The

execution team even turned Mr. Hamm on his

stomach as he lay on the gurney, slapping the back

of his legs in their search for an accessible vein.

Hamm’s Report at 2. After about half an hour of this

painful probing, the execution team left five visible

puncture wounds on Mr. Hamm’s legs and ankles.

Mar. Heath Report at 2, 4; see also Hamm Compl. at

18 46; Hamm Am. Compl. at 22 955 (predicting

that corrections personnel, in their unsuccessful

attempts to access his peripheral veins, would “cause

pain to Mr. Hamm by repeatedly attempting to

insert needles into inaccessible veins).

Again as Mr. Hamm had predicted, other

execution personnel then tried to access his central

veins in a series of bloody and painful attempts.

Corrections personnel repeatedly inserted needles

into Mr. Hamm’s right groin, causing him intense

pain, as each insertion was accompanied by multiple

probing movements. See Hamm’s Report at 2; Mar.

Heath Report at 2. Mr. Hamm felt the needles

entering deep into his groin and twice experienced

“sudden sharp deep retropubic pain.” Mar. Heath

Report at 2. The execution personnel had to request

several new needles during the course of these

attempts, and the process caused Mr. Hamm to bleed

so severely that his blood soaked through a pad,

which had to be replaced. See id. at 2. In all, the

execution personnel left approximately six puncture

wounds in Mr. Hamm’s groin. Id. at 4.

Multiple news reports described the execution and

in particular reported the “horrific” and “disturbing”

15

images of Mr. Hamm’s resulting wounds and severe

bruising. See, e.g., Mark Hodge, Wishing for Death,

The Sun (Mar. 7, 2018), https://www.thesun.co.uk

/news/5746778/doyle-lee-hamm-botched-execution-

needles-wounds-alabama; Debra Killalea, Doyle

Hamm: Botched Execution Leaves Inmate with

Shocking Injuries, News.Com.Au, (Mar. 8, 2018),

https-//www.news.com.au/lifestyle/real-life/news-

life/doyle-hamm-botched-execution-leaves-inmate-

with-shocking-injuries-photos/news-story/leO1lla

32749 1dc324e34ae753733c49d; Sandee LaMotte,

Death Row Inmate Sues After ‘Botched’ Execution,

CNN (Mar. 7, 2018), https://www.cnn.com/2018/03/

07/health/alabama-execution-lawsuit/index.html.

Mr. Hamm was in severe pain during the attempted

execution, and was unable to walk unsupported

afterward. Mar. Heath Report at 2-3. Following the

failed execution attempt, Mr. Hamm developed a

large hematoma (collection of clotted blood) in his

right groin, urinated blood and, the next week, was

diagnosed with infected lymph nodes in his right

groin and right underarm. Id. at 3-4.

C. Alva Campbell

The failed execution of Alva Campbell also

provides an illustrative example of the merit—and

very pred‘ able risk identified in—the types of as-

applied challenges at issue in this case. Mr.

Campbell, who passed away of natural causes on

March 3, 2018, suffered from a multitude of serious

medical conditions that required multiple daily

oxygen treatments, prevented him from fully

reclining without severe pain, and required the use

an external colostomy bag. See Proposed

16

Amendment and Supplement to Complaint at 2-4, Jn

re Ohio Execution Protocol Litigation, 2:11-cv-01016

(S.D. Ohio, Oct. 26, 2017), ECF No. 1350-1; Tracy

Connor, Alva Campbell, Inmate Who Survived

Execution Try, Dies in Ohio Prison, NBC News (Mar.

3, 2018), https//www.nbcnews.com/news/us-news/

alva-campbell-inmate-who-survived-execution-try-

dies-ohio-prison-n852961; Hannah _ Riley, Alva

Campbell Jr.’s Execution Halted Midway Through,

Huffington Post (Nov. 16, 2017),

https-//www.huffingtonpost.com/entry/alva-campbell-

jrs-execution-halted-midway-through_ us_5a0c96c3e

4b06d8966cf3451. To name but a few conditions,

Mr. Campbell suffered from pulmonary

hypertension, emphysema, severe chronic

obstructive pulmonary disease (COPD), coronary

artery disease, and prostate cancer; he also had a

total colectomy due to a gangrenous colon and hip

replacement. See Medical Review, In re Ohio

Execution Protocol Litigation, 2:11-cv-01016 (S.D.

Ohio, Oct. 26, 2017), ECF No. 1353-1; Proposed

Amendment and Supplement to Complaint at 2-3.

In light of his serious and chronic medical

conditions, Mr. Campbell identified multiple ways in

which QOhio’s lethal injection execution method

would cause him serious pain, and suggested the

alternative of death by firing squad. He explained

that recent medical tests performed by the Ohio

Department of Rehabilitation and Correction

demonstrated that the execution team would likely

be unable to access his peripheral veins, “thereby

subjecting ([Mr. Campbell] to severe, needless

physical and mental/psychological pain and

suffering” as the execution team attempted to access

a vein. See Proposed Amendment and Supplement

to Complaint at 5; see also Medical Review at 3-5

(noting difficulties finding [V access sites and Mr.

Campbell's history of “extremely poor venous

access”).

5

;

4

i

:

:

E

Execution in Ohio Is tialted After No Usable Vein

Can Be Found, New York Times (Nov 15, 2017),

https//www.nytimes.com/20 17/1 1/15/us/ohio-

execution-alva-campbell html.

18

In each of these cases, the extreme suffering to

which the inmate was subjected as a result of his

specific medical condition was not just entirely

foreseeable; it was entirely foreseen. Each of

Messrs. McGuire, Campbell, and Hamm described in

specific detail in their court filings the problems the

state ultimately faced in attempting to execute them

and the pain they eventually suffered as a result.

I. met we tee ey te le

Inmate’s Specific Medical Condition Are

Limited in Scope, Easily Evaluated, and

Assist the State in Its Attempts to

Conduct Humane Executions

A. As-Applied Challenges Address

Specific, Predictable Risks of

Severe Pain

1. As-applied challenges such as Mr. Bucklew’s

and those described above are grounded in the

interaction between the inmate’s _ unique medical

protocol. They are therefore narrow, specific

challenges that are not “attack|s| [on] . . . the death

penalty itself or even on “a particular means of

execution.” Glossip, 135 S. Ct. 2726, 2738 (2015).

This type of challenge presumes that the death

penalty can be constitutionally applied and even that

the particular execution protocol at issue can be

constitutionally applied in the typical case. Cf. Baze,

553 U.S. at 62 (plurality op.) (“Petitioners agree that,

if administered as intended, thle] procedure will

result in a painless death.”).

19

Notwithstanding the constitutionality of a state’s

method of execution generally, it is beyond question

that in specific, unusual circumstances (such as Mr.

Bucklew’s), an inmate may have unique medical

circumstances that make the state’s particular

protocol virtually certain to cause severe pain or

suffering to that inmate. In such cases, the Eighth

Amendment requires that the inmate have an

opportunity to challenge that protocol to ensure that

he or she is executed in a constitutional manner. Cf.

Baze, 553 US. at 53 (plurality op.) (“It is

uncontested that, failing a proper dose of sodium

thiopental that would render the prisoner

from the injection of potassium chloride.”).

For example, Mr. McGuire’s as-applied challenge

was not that Ohio’s lethal injection protocol was

ie ioe oe but that his specific

mail dette of his breathing, would cause

him to experience “a terrifying inability to obtain a

breath” for five minutes before the midazolam and

hydromorphone that would be used on him would

alleviate his awareness of the sensation. McGuire

Op. at 3, 9. Inmates without his particular medical

condition—which was well-documented from his

treatment by prison medical staff, see id. at 3—

would have no basis to challenge the protocol on

those grounds.

Similarly, Mr. Bucklew raises the challenge that

the blood-filled tumor caused by his extremely rare

medical condition, cavernous hemangioma, would

obstruct his breathing and potentially rupture if he

were executed pursuant to Missouri’s lethal injection

protocol, causing him to choke on his own blood. Pet.

2; id. at 8 (explaining that only two thousandths of a

percent of the population suffers from cavernous

hemangiomas in the oral cavity like Mr. Bucklew,

making one of the primary impediments to executing

him pursuant to Missouri's protocol “extremely

rare”). The harm that Bucklew expects to endure if

executed pursuant to the standard Missouri

execution profile warrants unique treatment. Few, if

any, other prisoners will have similar grounds to

challenge the protocol.

2. The Eighth Circuit misunderstood Mr.

Bucklew’'s claim, however, when it stated that his

challenge “proceeds from the premise that [the lethal

injection team] may not be qualified for the positions

for which they have been hired.” Pet. App. 17a. An

would be qualified to execute the protocol for the

typical prisoner. But where the inmate has alleged a

specific medical condition that poses unique

complications during the execution, specialized

knowledge might be necessary to avoid extreme and

unnecessary suffering.

For example, Mr. Hamm argued that, as a result of

would “present a serious medical challenge” beyond

the competence of execution personnel qualified only

to set uncomplicated [Vs. Hamm Am. Compl. at 15

q 33. He predicted—correctly—that attempting such

21

access at the prison would “result in cruel and

needless pain.” Jd. Likewise, Mr. Bucklew sought

discovery into the expertise of the medical team that

was assigned to his execution in order to evaluate

whether, in light of their training level, their

attempting to perform the execution on Mr. Bucklew,

with his unique condition, would be very likely to

inflict severe pain. Pet. 4, 8. Mr. Bucklew’s rare

affliction and the unique ways in which it causes

suffering may be unknown to an execution team that

is qualified for the ordinary case—in other words,

qualified to place and monitor standard [Vs in

individuals who lack severe health conditions that

will impact the IV placement and injection process.

See, e.g., Baze, 553 US. at 54 (plurality op.)

(discussing expert testimony that mixing sodium

thiopental is “not difficult at all” and has

that they create a substantial risk in any given

execution. In contrast to that wide-ranging inquiry,

22

an as-applied challenge focuses on the concrete

question whether the inmate’s particular medical

condition makes it “very likely” that applying the

protocol to him will “result in needless suffering.”

Glossip, 135 S. Ct. at 2739.

To demonstrate a “substantial risk of serious

harm,” Baze, 553 U.S. at 50 (plurality op.), an

inmate raising an as-applied challenge must proffer

evidence of (1) a particular medical condition that (2)

will interact with the state's execution protocol in

identifiable, predictable ways that (3) render it “sure

or very likely to result in” unconstitutional pain.

Glossip, 135 S. Ct. at 2739. Thus, the inmate may

not simply identify his medical condition; he must

explain how that condition will interact with

identified aspects of the particular execution

protocol. In addition, the inmate must demonstrate

that the resulting pain rises to the level of

unconstitutional suffering. These elements together

give rise to the special circumstances that must be

addressed in order for the inmate to be executed

humanely.

Thus, the “substantial risk” analysis will turn on

an evaluation of the inmate’s evidence of his medical

condition, as well as evidence concerning the specific

aspects of the lethal injection procedure that risk

interacting with the inmate’s condition to cause

severe pain. Here, for instance, Mr. Bucklew

provided extensive evidence of his medical condition,

and identified specific elements in the lethal

injection protocol that were likely to cause pain in

light of his condition. He argued that the supine

position of the gurney would cause his tumors to

23

descend into his throat, causing a choking sensation

that he would be unable to alleviate once the

anesthesia was administered; and that as he

struggled to breathe, the tumors would rupture,

causing him to choke on his own blood. He further

argued that because his veins are compromised, the

execution personnel’s repeated attempts to insert the

IVs would raise his blood pressure, increasing the

risk that his tumors would rupture. Pet. 11.

B. As-Applied Challenges Are

Administrable And Serve State

Interests

As-applied challenges to ilethal injection

procedures are naturally limited in number and

scope; they present issues that are easily adjudicable

by courts; and they serve important state interests.

1. The specific medical evidence of the inmate’s

unique condition necessary to prove an as-applied

claim distinguishes the nature, scope, and number of

such claims from those of facial claims about the risk

of errors in carrying out an execution protocol.

Challenges to an execution protocol based on an

individual’s known unique medical condition are

necessarily limited in number. Inmates will likely

suffer only infrequently from medical conditions that

are both sufficiently severe and sufficiently closely

related to the physical effects of the execution

procedure to render that procedure “sure or very

likely to result in needless suffering.” Glossip, 135

S. Ct. at 2739; see Pet. 8. For example, Mr. McGuire

presented evidence that his sleep apnea condition

would interact with the specific dose of midazolam

24

that Ohio planned to use, thereby causing

suffocation. And Mr. Hamm presented evidence that

the swelling of his lymph nodes would make

obtaining even a central IV line dangerous and likely

unsuccessful. Notably, in the rare cases in which

inmates have been able to demonstrate that their

specific medical conditions would render identified

aspects of the execution procedure very likely to

cause severe suffering, those predictions have come

true.”

Conversely, courts will be able easily to reject

claims that do not identify a medical condition that

will interact with specific aspects of the execution

protocol to create a substantial :isk. See Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). For

instance, courts have typically rejected generalized

claims that an inmate’s veins may have been

damaged by IV drug use, on the ground that such

claims did not establish the existence of any unusual

condition for which the protocol’s safeguards would

* As Mr. McGuire's medical expert explained, Mr. McGuire's

suffering was easily predictable based on standard medica!

criteria. The expert told a reporter “he had used a standard,

simple set of criteria (for his analysis before the district court! .

causing him to slowly suffocate.” The result was that “his body

was slowly strangling itself from the inside, rather than

causing him to drift off to sleep.” Matt McCarthy, What's the

Best Way to Execute Someone?; Doctors Say Lethal Injection Is

Often Botched and Horrific, Slate Magazine (March 27, 2014).

25

not be sufficient. See, e.g., Raby v. Livingston, 600

F.3d 552, 558 (5th Cir. 2010).

When as-applied challenges such as Mr. Bucklew’s

do go forward, they can be easily substantiated and

evaluated. The relevant medical information on

which the inmate bases his or her claim will be

readily accessible to the state. Indeed, the

correctional facilitys medical system will

undoubtedly be aware of the inmate’s medical

condition and possess treatment records. In

addition, in many situations the state itself—via its

correctional personnel—produced key medical

reports concerning the effect of the inmate’s health

on the execution process. In Mr. Campbell’s case, for

example, one of the reports he pointed to as evidence

that the state would be unlikely to establish venous

access was produced by the Ohio Department of

Rehabilitation and Correction. See Proposed

Amendment and Supplement to Complaint at 5 4 8.

Similarly, Messrs. McGuire, Hamm, and Bucklew

were all treated by doctors employed by the state

while they were incarcerated. McGuire Op. 3 (“The

evidence establishes that McGuire has had

breathing issues since at least 2009, when prison

doctors began to prescribe him inhalers.”); Pet. App.

78a (noting “doctors employed or contracted with by

the State of Missouri repeatedly warn of the

expansion of |Mr. Bucklew’s] vascular tumor, stating

in September 2011 ‘this has been present for 20 plus

years, but has increasingly grown larger and

larger.”); Hamm Am. Compl. at 8-11 4] 15-16, 18,

22-23 (describing detailed reports of Mr. Hamm's

medical conditions from his prison medical records).

26

As a practical matter, therefore, an inmate will be

unable to fabricate a condition or medical history or

blindside the state with an unforeseeable challenge

to its execution protocol that it does not have the

basis to evaluate or resolve. If an inmate does

attempt to do so, the state’s own medical records will

refute the claim.

2. From the courts’ perspective, as-applied

challenges present concrete, adjudicable disputes

involving particular aspects of the legal injection

protocol. Courts routinely adjudicate similar claims

in other contexts, including claims that prison

administrators have acted with deliberate

indifference to an inmate’s medical condition. See,

e.g., Shaw v. Anderson, No. 18-CV-140-JPS, 2018

WL 3243991 at *2 (E.D. Wis. July 3, 2018)

(considering the claim that a prison’s leather

restraint practices could not constitutionally be

applied to plaintiff in light of his arthritic condition).

The expert testimony in such cases will be directed

to discrete topics: the plaintiffs medical condition,

and the extent to which that condition will cause

unconstitutional suffering in the execution process.

In some cases, to be sure, discovery may be

necessary to fully evaluate the ability of the state to

execute the inmate in a manner that avoids serious

harm beyond that experienced by the typical

prisoner subjected to this same protocol. But that

discovery can be tightly cabined. Because the

inmate does not challenge the execution team’s

competence as a general matter, or the adequacy of

the equipment and facilities in the typical case,

discovery may be limited to the state’s ability to

27

accommodate the inmate’s specific condition in the

execution process. Thus, Mr. Bucklew sought

targeted discovery into “the skills and training of

lexecution personnel] to handle the risks that his

rare condition would likely present.” Pet. 17. The

district court may properly limit discovery to the

precise risks identified in the inmate’s complaint.

In view of their narrow nature, as-applied

challenges do not raise the concerns that this Court

identified in Baze and Glossip. Because the court

need not evaluate the state’s execution procedure as

a general matter, there is no danger that federal

courts will end up serving as “boards of inquiry

charged with determining ‘best practices’ for

executions.” Baze, 553 U.S. at 51 (plurality op.).

Just as a court can evaluate a prisoner's claim that

prison officials have acted with deliberate

indifference to his medical condition without opining

more generally on prison “best practices,” so too can

a court evaluate an as-applied lethal injection

challenge without making broader pronouncements.

Nor is there any danger that courts will “embroil

[themselves} in ongoing scientific controversies

beyond their expertise.” Glossip, 135 S. Ct. at 2740.

A court’s resolution of a particular as-applied

challenge will not set any nationwide precedent with

respect to what measures are scientifically possible

or appropriate as a general matter. Rather, each

case will present merely the sort of competing expert

testimony with respect to the risks posed by specific

medical conditions that courts routinely resolve,

including in malpractice and deliberate-indifference

cases.

28

3. Finally, as-applied challenges like Mr.

Bucklew’s serve a variety of important interests.

The inmate, the state, and—as the public outcry

accompanying each execution and failed execution

attempt that causes unnecessary and severe pain,

such as those discussed supra Part Il,

demonstrates—society as a whole all have an

interest in ensuring that executions are carried out

in a humane and constitutional manner. See, e.z.,

Glossip, 135 S.Ct. at 2732 (noting that states “sought

a more humane way to carry out death sentences”

and thus “eventually adopted lethal injection”); Baze,

553 U.S. at 62 (plurality op.) (noting Kentucky and

35 other states have “adopted a method of execution

believed to be the most humane available” that “if

administered as intended .. . will result in a painless

death”). As-applied challenges such as Mr.

Bucklew’s advance that goal.

In particular, this type of challenge can facilitate a

dialogue between the state and the inmate about

how the inmate’s unique medical condition may

affect his execution. States are unlikely to have

experience with executing anyone with a given

unusual medical condition like Mr. Bucklew’s, and

may not initially be aware of how that condition may

interact with their protocols. Moreover, even with

some general knowledge of a certain ailment, states

may not be aware of how their execution protocols

may interact with a given inmate’s particular

condition. For example, Mr. Bucklew alleges that

the tumors in his throat that are particularly

problematic for him under the State’s execution

29

protocol are unusual even for those who share his

condition. Pet. 8.

Enabling the inmate to challenge the use of that

protocol on the basis of his or her condition and

support his or her claim with medical evidence

provides the state an opportunity to evaluate the

inmate’s condition and concerns. This, in turn,

initiates a dialogue between the inmate and the

state, which affords the latter the opportunity to

tailor the protocol to address the inmate’s unique

circumstances. In short, these types of as-applied

claims provide the state the opportunity to evaluate

the prisoner’s concerns and avoid unconstitutionally

cruel executions (or unconstitutionally cruel

execution attempts). In avoiding causing an inmate

unnecessary pain, states also can avoid turning

executions into the undignified spectacle that results

from execution attempts like those described in Part

I, where the states’ attempts to execute severely ill

individuals went awry.

Courts have a vital role in this process. When the

parties are unable to agree on protocol alterations

necessary to avoid predictable suffering, an inmate

will need to obtain judicial resolution of his claims.

The executions of Messrs. McGuire, Campbell, and

Hamm, see supra Part I, demonstrate that in some

exceptional cases, an inmate’s medical condition

gives rise to an “objectively intolerable risk of harm,”

Baze, 553 U.S. at 50, 52 (plurality op.), beyond that

“inherent in any method of execution,” Glossip, 135

S. Ct. at 2733. In these unique cases, courts must

adjudicate whether the state’s “refusal to change its

method” creates predictable danger of excruciating

30

pain that must be “viewed as ‘cruel and unusual’

under the Eighth Amendment.” Baze, 553 U.S. at

50, 52 (plurality op.).

CONCLUSION

For the foregoing reasons, the judgment of the

Court of Appeals should be reversed.

July 23, 2018

31

Munger, Tolles & Olson LLP

1155 F Street, NW

7th Floor

Washington, DC 20004

(202) 220-1100

ginger.anders@mto.com

Counsel for amici curiae Megan McCracken and

Jennifer Moreno