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Federal Judge Orders Missouri To Amend Its Lethal Injection Protocol
The U.S. District Court ordered the state of Missouri to amend its lethal injection execution protocol to comport with Eighth Amendment cruel and unusual punishment standards.
Missouri condemned prisoner Michael Taylor had challenged Missouri’s procedure to utilize a three-drug sequence as cruel and unusual punishment because it could not guarantee that he would not suffer “unnecessary and wanton infliction of pain” during his pending execution. On August 9, 2006, the Eighth Circuit U.S. Court of Appeals remanded the matter to the district court to consider Missouri’s proposed revised protocol in light of constitutional standards.
On September 12, 2006, the district court issued an eight-point order requiring more specific performance by Missouri. First, it ordered an unidentified “John Doe” to be wholly removed from Missouri’s lethal injection process. Second, the court amended its earlier order requiring a board-certified anesthesiologist, to instead permit a suitably anesthesia-trained physician to mix chemicals and oversee their use. Third, the court insisted that the state invest in equipment to measure “anesthetic depth” -- the degree of unconsciousness. Fourth, the court approved the state’s proposed contingency plan. Fifth, the court ordered that all participating staff members sign a “chemical log” certifying the order in which the drugs were administered. Sixth, any deviations in No. 5 shall be reported to the court, which could result in further modifications to the protocol. Seventh, the state may not substitute “emergency medical technicians” or “paramedics” for the supervising physician in the execution, although use of such personnel by the physician is permitted. Finally, Missouri was ordered to submit its revised protocol to the court by October 27, 2006, identifying their appointed physician (who shall be in good standing with Missouri’s licensing board and free from any board disciplinary history).
On October 6, Missouri filed a motion for reconsideration, reiterating its belief that their proposed protocol met Eighth Amendment standards. They further simply resubmitted their original proposal in reply to the court’s order for a revised one. On October 16, 2006, the court denied the motion, noting Missouri’s “lack of willingness to even attempt to comply with the Court’s order,” and restated its determination that Missouri’s proposed protocol “is unconstitutional because it subjects inmates to unreasonable risk of cruel and unusual punishment.” See: Taylor v. Crawford, USDC, W.D. MO, Case No. 2:05-cv-04173-FJG (September 12 and October 16, 2006). The Eighth Circuit Court of Appeals reversed, finding that Missouri’s written protocol satisfied constitutional standards. See: Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007).
Missouri condemned prisoner Michael Taylor had challenged Missouri’s procedure to utilize a three-drug sequence as cruel and unusual punishment because it could not guarantee that he would not suffer “unnecessary and wanton infliction of pain” during his pending execution. On August 9, 2006, the Eighth Circuit U.S. Court of Appeals remanded the matter to the district court to consider Missouri’s proposed revised protocol in light of constitutional standards.
On September 12, 2006, the district court issued an eight-point order requiring more specific performance by Missouri. First, it ordered an unidentified “John Doe” to be wholly removed from Missouri’s lethal injection process. Second, the court amended its earlier order requiring a board-certified anesthesiologist, to instead permit a suitably anesthesia-trained physician to mix chemicals and oversee their use. Third, the court insisted that the state invest in equipment to measure “anesthetic depth” -- the degree of unconsciousness. Fourth, the court approved the state’s proposed contingency plan. Fifth, the court ordered that all participating staff members sign a “chemical log” certifying the order in which the drugs were administered. Sixth, any deviations in No. 5 shall be reported to the court, which could result in further modifications to the protocol. Seventh, the state may not substitute “emergency medical technicians” or “paramedics” for the supervising physician in the execution, although use of such personnel by the physician is permitted. Finally, Missouri was ordered to submit its revised protocol to the court by October 27, 2006, identifying their appointed physician (who shall be in good standing with Missouri’s licensing board and free from any board disciplinary history).
On October 6, Missouri filed a motion for reconsideration, reiterating its belief that their proposed protocol met Eighth Amendment standards. They further simply resubmitted their original proposal in reply to the court’s order for a revised one. On October 16, 2006, the court denied the motion, noting Missouri’s “lack of willingness to even attempt to comply with the Court’s order,” and restated its determination that Missouri’s proposed protocol “is unconstitutional because it subjects inmates to unreasonable risk of cruel and unusual punishment.” See: Taylor v. Crawford, USDC, W.D. MO, Case No. 2:05-cv-04173-FJG (September 12 and October 16, 2006). The Eighth Circuit Court of Appeals reversed, finding that Missouri’s written protocol satisfied constitutional standards. See: Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007).
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Related legal case
Taylor v. Crawford
| Year | 2006 |
|---|---|
| Cite | USDC, W.D. MO, Case No. 05-4173-CV-C-FJG |
| Level | District Court |
MICHAEL ANTHONY TAYLOR, Plaintiff, vs. LARRY CRAWFORD, et al., Defendants.
No. 05-4173-CV-C-FJG
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION
September 12, 2006, Decided
September 12, 2006, Filed
SUBSEQUENT HISTORY: Reconsideration denied by Taylor v. Crawford, 2006 U.S. Dist. LEXIS 74896 (W.D. Mo., Oct. 16, 2006)
PRIOR HISTORY: Taylor v. Crawford, 457 F.3d 902, 2006 U.S. App. LEXIS 20445 (8th Cir., 2006)
COUNSEL: [*1] For Michael Taylor, Plaintiff: Donald B Verrilli, Eric Berger, Ginger Anders, Matthew S. Hellman, LEAD ATTORNEYS, Jenner & Block, Washington, DC; John William Simon, LEAD ATTORNEY, Constitutional Advocate, LLC, Kansas City, MO; C. John Pleban, Lunette M. Petruska, Pleban & Associates, LLC, St. Louis, MO.
For Richard D Clay, Intervenor Plaintiff: Jennifer Herndon, LEAD ATTORNEY, Florissant, Mo; Elizabeth Unger Carlyle, Columbus, MS.
For Reginald Clemons, Intervenor Plaintiff: Mark G. Arnold, LEAD ATTORNEY, Husch Blackwell Sanders, LLP, St. Louis, MO.
For Larry Crawford, Director, MO Dept. of Corrections, James D Purkett, Superintendent, Eastern Reception, Diagnostic & Correctional Center, Defendants: Michael Pritchett, Missouri Attorney General, Jefferson City, MO.
JUDGES: Fernando J. Gaitan, Jr., United States District Judge.
OPINION BY: Fernando J. Gaitan,
ORDER
On August 9, 2006, the Eighth Circuit remanded the above captioned case to this Court. In that Order the Eighth Circuit stated, "[s]ince Crawford has now proposed the revised protocol for use in the execution of Taylor's death sentence, the court remands jurisdiction of this dispute to the district court for consideration of this newly propounded [*2] protocol and all other issues now framed by the parties' pleadings and notices of appeal." (August 9, 2006 Order, p. 3). The Court has reviewed the protocol proposed by the State, as well as the plaintiff's objections and the state's reply to those objections.
I. Revised Protocol
First, this Court's June 26, 2006 Order (Doc. # 195) was premised on the stated intent of the State to continue using the three drug protocol. However, the Court found that the lack of a written protocol for the use of these three drugs, plus an inconsistent and arbitrary application of these drugs subjected condemned inmates to an unreasonable risk of cruel and unusual punishment. The Eighth Amendment provides that "cruel and unusual punishment" shall not be inflicted. It prohibits punishments that are "incompatible with 'the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). As to executions, it prohibits "the unnecessary and wanton infliction of pain" as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976).
While [*3] the State's revised protocol is an improvement over the previous procedures used by John Doe No. 1, it falls short of providing the critical Constitutional protections required. It was never the intention of this Court to prevent the State of Missouri from executing its death row inmates. Rather, the Court sought only to ensure that the State was meeting Constitutional standards. Those standards can be achieved in various ways. However, certain protocols suggested by the State fall short of those standards. If the State wants to continue using the three drug method of lethal injection, its proposal shall be modified as follows:
1. First, John Doe No. 1 shall not participate in any manner, at any level, in the State of Missouri's lethal injection process.
2. Second, while a board certified anesthesiologist is preferred, the Court hereby modifies its previous order (Doc. # 195, p. 14) to permit a physician with training in the application and administration of anesthesia to either mix the chemicals or to oversee the mixing of the chemicals for lethal injections.
3. Anesthetic Depth - The States' proposal is rejected in favor of that proposed by the Court. As noted in the Court's previous [*4] order, the State may have to purchase additional equipment in order to adequately monitor anesthetic depth. The method of monitoring anesthetic depth shall be determined after the State consults with the physician who is chosen to assist in the lethal injection process. The State has agreed to reposition the gurney on which the inmate is positioned, so that the inmate's face will be directly visible to the medical personnel.
4. Contingency Plan - The State's proposed contingency plan is acceptable.
5. Auditing Process - The "Sequence of Chemicals" form that verifies that the drugs were given in the order specified in the protocol shall be signed by each staff member taking part in the protocol as soon as the inmate has been declared dead. The physician in charge of the lethal injection procedure will also complete and sign the chemical log.
6. Any deviations from this written protocol shall be a matter of written record submitted to the appropriate state officials and subject to Court review. Said review may result in further modifications of the approved protocol.
7. Obtaining Use of a Board Certified Anesthesiologist - this provision has been modified to allow a physician trained in [*5] the administration and application of anesthetic drugs to be involved. The State's proposed use of "medical personnel" is rejected to the extent they propose the use of paramedics and/or emergency medical technicians. However, the supervising physician previously referred to may employ medical personnel whom he or she believes are necessary to assist the physician.
8. The State shall submit a revised protocol to the Court for review and approval on or before October 27, 2006. The State shall select a physician who is in good standing with their State's licensing board. The physician selected shall not have any disciplinary action taken against them by their State's licensing authority.
II. Motion to Withdraw
Also pending before the Court is a Motion to Withdraw and Motion for Appointment of Successor Counsel. This motion was filed in the Eighth Circuit, but was remanded to this Court on August 9, 2006. Mr. Simon moves to withdraw as counsel for plaintiff because he has accepted a position with the Missouri State Public Defender System. Co-counsel in plaintiff's habeas corpus and executive clemency representation, Mark Thornhill, will continue representing plaintiff in his clemency proceedings [*6] and Jenner & Block, LLP will continue to represent plaintiff in his lethal injection litigation. Plaintiff has filed an affidavit requesting that the Court appoint C. John Pleban, to succeed Mr. Simon in the habeas corpus and executive clemency litigation. As plaintiff has adequate counsel which are continuing to represent him, the Court finds it unnecessary to appoint replacement counsel. Accordingly, Mr. Simon's Motion to Withdraw is hereby GRANTED and the Motion to Appoint Replacement Counsel is hereby DENIED.
Date: September 12, 2006
Kansas City, Missouri
/s/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
--------------------------------------------------------------------------------
MICHAEL ANTHONY TAYLOR, Plaintiff, vs. LARRY CRAWFORD, et al., Defendants.
No. 05-4173-CV-C-FJG
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION
October 16, 2006, Decided
October 16, 2006, Filed
SUBSEQUENT HISTORY: Reversed by Taylor v. Crawford, 487 F.3d 1072, 2007 U.S. App. LEXIS 12851 (8th Cir. Mo., 2007)
PRIOR HISTORY: Taylor v. Crawford, 2006 U.S. Dist. LEXIS 97744 (W.D. Mo., Sept. 12, 2006)
OPINION BY: FERNANDO J. GAITAN, JR.
ORDER
On August 9, 2006, the Eighth Circuit remanded the above captioned case to this Court. In that Order the Eighth Circuit stated, "[s]ince Crawford has now proposed the revised protocol for use in the execution of Taylor's death sentence, the court remands jurisdiction of this dispute to the district court for [*2] consideration of this newly propounded protocol and all other issues now framed by the parties' pleadings and notices of appeal." (August 9, 2006 Order, p. 3). On September 12, 2006, the Court issued an Order stating that while the States' revised protocol was an improvement over the previous procedures used by John Doe No. 1, it still fell short of providing the critical Constitutional protections required. The Court then suggested several modifications which should be made to the proposed protocol. The State was given until October 27, 2006 to submit a revised protocol. On October 6, 2006 the State filed a response to the Court's Order stating that the "[d]efendants respectfully maintain that the protocol submitted by the Department of Corrections on July 14 does comply with the broad bounds of the Eighth Amendment. . . . Defendants respectfully disagree that they are constitutionally obligated to meet the additional criteria set out by the Court in the September 12 Order. The defendant Corrections officials resubmit the protocol they initially submitted on July 14, . . . and ask the Court to reconsider its conclusion that this protocol is not constitutionally sufficient. Whatever [*3] the Court's final conclusion, defendants ask the Court to enter its judgment so that any appeals may proceed expeditiously." (State's Response, Doc. # 217). On October 12, 2006, plaintiff filed Suggestions in Opposition stating that the July 14 protocol does not come close to providing for effective assessment of anesthetic depth and also fails to correct the additional flaws in the State's lethal injection procedure identified by the Court. Plaintiff notes that the State has provided no grounds for the Court to reconsider it's September 12, 2006 Order.
The Court declines to reconsider its September 12, 2006 Order. As the Court noted, although the State's proposal was an improvement, there were still several areas which the Court finds do not meet Constitutional standards. The State's response does nothing to address these concerns and indicates its lack of willingness to even attempt to comply with the Court's order. Therefore, the Court hereby DENIES the State's Motion for Reconsideration (Doc. # 217) and restates is previous determination that the protocol proposed by the State of Missouri is unconstitutional because it subjects inmates to unreasonable risk of cruel and unusual [*4] punishment.
Date: October 16, 2006
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
United States District Judge
No. 05-4173-CV-C-FJG
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION
September 12, 2006, Decided
September 12, 2006, Filed
SUBSEQUENT HISTORY: Reconsideration denied by Taylor v. Crawford, 2006 U.S. Dist. LEXIS 74896 (W.D. Mo., Oct. 16, 2006)
PRIOR HISTORY: Taylor v. Crawford, 457 F.3d 902, 2006 U.S. App. LEXIS 20445 (8th Cir., 2006)
COUNSEL: [*1] For Michael Taylor, Plaintiff: Donald B Verrilli, Eric Berger, Ginger Anders, Matthew S. Hellman, LEAD ATTORNEYS, Jenner & Block, Washington, DC; John William Simon, LEAD ATTORNEY, Constitutional Advocate, LLC, Kansas City, MO; C. John Pleban, Lunette M. Petruska, Pleban & Associates, LLC, St. Louis, MO.
For Richard D Clay, Intervenor Plaintiff: Jennifer Herndon, LEAD ATTORNEY, Florissant, Mo; Elizabeth Unger Carlyle, Columbus, MS.
For Reginald Clemons, Intervenor Plaintiff: Mark G. Arnold, LEAD ATTORNEY, Husch Blackwell Sanders, LLP, St. Louis, MO.
For Larry Crawford, Director, MO Dept. of Corrections, James D Purkett, Superintendent, Eastern Reception, Diagnostic & Correctional Center, Defendants: Michael Pritchett, Missouri Attorney General, Jefferson City, MO.
JUDGES: Fernando J. Gaitan, Jr., United States District Judge.
OPINION BY: Fernando J. Gaitan,
ORDER
On August 9, 2006, the Eighth Circuit remanded the above captioned case to this Court. In that Order the Eighth Circuit stated, "[s]ince Crawford has now proposed the revised protocol for use in the execution of Taylor's death sentence, the court remands jurisdiction of this dispute to the district court for consideration of this newly propounded [*2] protocol and all other issues now framed by the parties' pleadings and notices of appeal." (August 9, 2006 Order, p. 3). The Court has reviewed the protocol proposed by the State, as well as the plaintiff's objections and the state's reply to those objections.
I. Revised Protocol
First, this Court's June 26, 2006 Order (Doc. # 195) was premised on the stated intent of the State to continue using the three drug protocol. However, the Court found that the lack of a written protocol for the use of these three drugs, plus an inconsistent and arbitrary application of these drugs subjected condemned inmates to an unreasonable risk of cruel and unusual punishment. The Eighth Amendment provides that "cruel and unusual punishment" shall not be inflicted. It prohibits punishments that are "incompatible with 'the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). As to executions, it prohibits "the unnecessary and wanton infliction of pain" as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976).
While [*3] the State's revised protocol is an improvement over the previous procedures used by John Doe No. 1, it falls short of providing the critical Constitutional protections required. It was never the intention of this Court to prevent the State of Missouri from executing its death row inmates. Rather, the Court sought only to ensure that the State was meeting Constitutional standards. Those standards can be achieved in various ways. However, certain protocols suggested by the State fall short of those standards. If the State wants to continue using the three drug method of lethal injection, its proposal shall be modified as follows:
1. First, John Doe No. 1 shall not participate in any manner, at any level, in the State of Missouri's lethal injection process.
2. Second, while a board certified anesthesiologist is preferred, the Court hereby modifies its previous order (Doc. # 195, p. 14) to permit a physician with training in the application and administration of anesthesia to either mix the chemicals or to oversee the mixing of the chemicals for lethal injections.
3. Anesthetic Depth - The States' proposal is rejected in favor of that proposed by the Court. As noted in the Court's previous [*4] order, the State may have to purchase additional equipment in order to adequately monitor anesthetic depth. The method of monitoring anesthetic depth shall be determined after the State consults with the physician who is chosen to assist in the lethal injection process. The State has agreed to reposition the gurney on which the inmate is positioned, so that the inmate's face will be directly visible to the medical personnel.
4. Contingency Plan - The State's proposed contingency plan is acceptable.
5. Auditing Process - The "Sequence of Chemicals" form that verifies that the drugs were given in the order specified in the protocol shall be signed by each staff member taking part in the protocol as soon as the inmate has been declared dead. The physician in charge of the lethal injection procedure will also complete and sign the chemical log.
6. Any deviations from this written protocol shall be a matter of written record submitted to the appropriate state officials and subject to Court review. Said review may result in further modifications of the approved protocol.
7. Obtaining Use of a Board Certified Anesthesiologist - this provision has been modified to allow a physician trained in [*5] the administration and application of anesthetic drugs to be involved. The State's proposed use of "medical personnel" is rejected to the extent they propose the use of paramedics and/or emergency medical technicians. However, the supervising physician previously referred to may employ medical personnel whom he or she believes are necessary to assist the physician.
8. The State shall submit a revised protocol to the Court for review and approval on or before October 27, 2006. The State shall select a physician who is in good standing with their State's licensing board. The physician selected shall not have any disciplinary action taken against them by their State's licensing authority.
II. Motion to Withdraw
Also pending before the Court is a Motion to Withdraw and Motion for Appointment of Successor Counsel. This motion was filed in the Eighth Circuit, but was remanded to this Court on August 9, 2006. Mr. Simon moves to withdraw as counsel for plaintiff because he has accepted a position with the Missouri State Public Defender System. Co-counsel in plaintiff's habeas corpus and executive clemency representation, Mark Thornhill, will continue representing plaintiff in his clemency proceedings [*6] and Jenner & Block, LLP will continue to represent plaintiff in his lethal injection litigation. Plaintiff has filed an affidavit requesting that the Court appoint C. John Pleban, to succeed Mr. Simon in the habeas corpus and executive clemency litigation. As plaintiff has adequate counsel which are continuing to represent him, the Court finds it unnecessary to appoint replacement counsel. Accordingly, Mr. Simon's Motion to Withdraw is hereby GRANTED and the Motion to Appoint Replacement Counsel is hereby DENIED.
Date: September 12, 2006
Kansas City, Missouri
/s/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
--------------------------------------------------------------------------------
MICHAEL ANTHONY TAYLOR, Plaintiff, vs. LARRY CRAWFORD, et al., Defendants.
No. 05-4173-CV-C-FJG
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION
October 16, 2006, Decided
October 16, 2006, Filed
SUBSEQUENT HISTORY: Reversed by Taylor v. Crawford, 487 F.3d 1072, 2007 U.S. App. LEXIS 12851 (8th Cir. Mo., 2007)
PRIOR HISTORY: Taylor v. Crawford, 2006 U.S. Dist. LEXIS 97744 (W.D. Mo., Sept. 12, 2006)
OPINION BY: FERNANDO J. GAITAN, JR.
ORDER
On August 9, 2006, the Eighth Circuit remanded the above captioned case to this Court. In that Order the Eighth Circuit stated, "[s]ince Crawford has now proposed the revised protocol for use in the execution of Taylor's death sentence, the court remands jurisdiction of this dispute to the district court for [*2] consideration of this newly propounded protocol and all other issues now framed by the parties' pleadings and notices of appeal." (August 9, 2006 Order, p. 3). On September 12, 2006, the Court issued an Order stating that while the States' revised protocol was an improvement over the previous procedures used by John Doe No. 1, it still fell short of providing the critical Constitutional protections required. The Court then suggested several modifications which should be made to the proposed protocol. The State was given until October 27, 2006 to submit a revised protocol. On October 6, 2006 the State filed a response to the Court's Order stating that the "[d]efendants respectfully maintain that the protocol submitted by the Department of Corrections on July 14 does comply with the broad bounds of the Eighth Amendment. . . . Defendants respectfully disagree that they are constitutionally obligated to meet the additional criteria set out by the Court in the September 12 Order. The defendant Corrections officials resubmit the protocol they initially submitted on July 14, . . . and ask the Court to reconsider its conclusion that this protocol is not constitutionally sufficient. Whatever [*3] the Court's final conclusion, defendants ask the Court to enter its judgment so that any appeals may proceed expeditiously." (State's Response, Doc. # 217). On October 12, 2006, plaintiff filed Suggestions in Opposition stating that the July 14 protocol does not come close to providing for effective assessment of anesthetic depth and also fails to correct the additional flaws in the State's lethal injection procedure identified by the Court. Plaintiff notes that the State has provided no grounds for the Court to reconsider it's September 12, 2006 Order.
The Court declines to reconsider its September 12, 2006 Order. As the Court noted, although the State's proposal was an improvement, there were still several areas which the Court finds do not meet Constitutional standards. The State's response does nothing to address these concerns and indicates its lack of willingness to even attempt to comply with the Court's order. Therefore, the Court hereby DENIES the State's Motion for Reconsideration (Doc. # 217) and restates is previous determination that the protocol proposed by the State of Missouri is unconstitutional because it subjects inmates to unreasonable risk of cruel and unusual [*4] punishment.
Date: October 16, 2006
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
United States District Judge