Circuit Affirms Summary Judgment for State Defendants in Delaware Lethal Injection Case

Jackson v. Danberg, No. 09-1925 and 09-2052 (Feb. 1, 2010). In a § 1983 class action challenging the constitutionality of lethal injection in Delaware, neither (1) Delaware’s record of errors in implementing its execution protocol, nor (2) the absence of a planned alternative to peripheral venous access, show a substantial risk of serious harm under the standard announced in Baze v. Rees. The District Court’s order of summary judgment for the state defendants is affirmed, and the stay of executions pending appeal is dissolved.

In this long (47-page) opinion, the Third Circuit holds that the practice of lethal injection in Delaware is constitutional under Baze v. Rees, 553 U.S. 35 (2008). The Supreme Court held in Baze that the standard governing method-of-execution claims brought under § 1983 is whether the challenged practice poses a "substantial risk of serious harm" to the condemned prisoner. Finding no such risk in Delaware, the Third Circuit affirms the District Court’s grant of summary judgment for the state defendants, and dissolves the stay of executions that had been in place since the beginning of this litigation, in May 2006. Although the opinion notes that "the worrisome course [Delaware] appears to have taken at times under its formal protocol . . . gives us great pause," Slip op., 46, it nonetheless gives the green light for executions to resume in Delaware.

The opinion is notable for its lengthy discussion of the plurality opinion and the multiple concurring and dissenting opinions in Baze, although both parties in this case had agreed that the applicable standard was the plurality’s "substantial risk of serious harm" standard. The opinion then discusses the plaintiffs’ substantive claims: first, that the record of failures to comply with the execution protocol shows an unconstitutional risk of similar failures in the future; and second, that Defendants’ failure to adopt alternatives to peripheral venous access, for the foreseeable possibility that the executioners will be unable to establish peripheral access in a condemned prisoner, also show unconstitutional risk.

With regard to the plaintiffs’ evidence of Delaware’s failures to conduct a single of the 13 executions by lethal injection without deviating from the written protocol, the opinion finds that none of the mistakes shows a substantial risk. The court opens by saying, "the record is bereft of evidence that any of the thirteen inmates Delaware has executed using the three-drug protocol was still conscious when injected with potassium chloride." Slip op., 35, but then acknowledges that the evidentiary proffer regarding the Brian Steckel execution was disputed before the District Court, and some "evidence indicat[ed] that he had not received the appropriate dosage" of the anesthetic. Slip op., 36. The opinion then states, "Even assuming that Steckel suffered great pain during his botched execution, however, does no preclude summary judgment for Delaware, as Baze left no room for doubt that a single instance of mistake does not suffice to demonstrate a substantial risk of serious harm." Id. The court finds Plaintiffs’ other evidence of noncompliance with the written protocol, such as failure to follow the requirements for the training of execution personnel, similarly does not show unconstitutional risk.
Plaintiffs’ second claim was that Delaware’s failure to provide for an alternative to venous access poses a risk of a failed execution, similar to what happened when Ohio tried, and failed, to execute Romell Broom in September 2009. The panel relies on Baze, which did not require a backup plan, to hold that this does not render Delaware’s protocol unconstitutional.

Finally, the opinion comments on the Defendants’ cross-appeal issue: the District Court’s
grant of a stay pending appeal. While acknowledging that the District Court’s potential reasons continuing the stay are obvious, the panel "encourage[s] district courts int his circuit to state their reasons for granting stays pending appeal." Slip op., 46.

Submitted by Maria Pulzetti