Stacey Johnson v. Asa Hutchinson, No. 21-1965 (8th Cir. 2022)
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Plaintiff and other death-row prisoners in Arkansas sued the governor and a corrections official, arguing that Arkansas’s three-drug execution protocol violates the Eighth Amendment. After a bench trial, the district court found that the prisoners failed to establish a violation, and denied a motion for new trial.
The prisoners argue that the district court clearly erred in finding that they failed to demonstrate that the Arkansas execution protocol creates a substantial risk of severe pain. The Eighth Circuit affirmed. The prisoners cite expert testimony from Dr. Craig Stevens and Dr. Gail Van Norman that midazolam has a ceiling effect that occurs at a dose between 0.2 to 0.4 mg/kg. These experts relied on two medical studies, which are known by the names of their principal authors as the Inagaki study and the Miyake study. The court wrote that with no scientific consensus and a paucity of reliable scientific evidence concerning the effect of large doses of midazolam on humans, the district court did not clearly err in finding that the prisoners failed to demonstrate that the Arkansas execution protocol is sure or very likely to cause severe pain. Accordingly, the district court properly dismissed the claim under the Eighth Amendment.
Further, the prisoners failed to establish that the State’s existing method was sure or very likely to cause needless suffering, so the State was not required to consider alternative methods. The district court did not abuse its discretion in denying the motion.
Court Description: [Colloton, Author, with Kelly and Kobes, Circuit Judges] Prisoner case - Death Penalty. Arkansas's three-drug execution protocol is constitutional; with no scientific consensus and a paucity of reliable scientific evidence concerning the effect of large doses of midazolam on humans, the district court did not clearly err in finding plaintiffs, Arkansas death-row inmates, failed to demonstrate that the protocol is sure or very likely to cause severe pain, and the district court properly dismissed their Eighth Amendment claim. Judge Kelly, concurring.
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