Brown v. Crawford (408 F.3d 1027, 2005)

PER CURIAM.

This matter comes before the court on Appellant’s motion for a stay of execution of a sentence of death. The court has carefully considered the motion and the Appellees’ response, and the motion is denied. It is further ordered that the appeal is dismissed.

BYE, Circuit Judge,

dissenting.

I respectfully dissent from the order denying Vernon Brown’s motion for a stay of execution pending this appeal.

Brown challenges the chemical protocol used by Missouri to carry out lethal injections. He contends the three-chemical sequence used by'Missouri — sodium pento-thal, pancuronium bromide, and potassium chloride — creates a foreseeable risk of the gratuitous infliction of unnecessary pain and suffering in violation of the Eighth Amendment. :

I briefly summarize what' this record shows about the chemical protocol used by Missouri to carry' out lethal injections. The first drug administered is sodium pen-tothal, a barbiturate sedative used to induce unconsciousness. The second drug administered is pancuronium bromide, a paralytic agent. Pancuronium bromide causes the person to whom it is administered to suffocate, eventually, because the lungs stop moving; at the same time, the drug’s paralytic effect prevents the person from manifesting this suffering, or any other sensation, by facial expression, hand movement, or speech. The third drug administered is potassium chloride. Potassium chloride burns intensely as it goes through the veins toward the heart. When potassium. chloride reaches the heart, it induces a. heart attack.

In this action under 42 U.S.C. § 1983, Brown contends the state — before executing him — should be required to demonstrate the levels of sodium pentothal it administers are sufficient to render him unconscious throughout the execution, and the personnel who administer the three-drug protocol are sufficiently trained to administer it correctly. For if the sodium pentothal has not ’done its job (i.e., rendered a state of unconsciousness) when the potassium chloride takes effect, Brown will feel the excruciating pain caused by that drug, and the pain of the heart attack. In addition, because the state administers pancuronium bromide as a paralytic agent, no one will be able to tell whether Brown is conscious and therefore experiencing gratuitous pain because his entire body will be paralyzed so that he cannot express himself in any way. The possibility of gratuitous suffering through the use of this three-chemical protocol is enhanced by the fact sodium pentothal precipitates when it is exposed to pancuronium bromide, that is, it loses it effectiveness as an anesthetic. In other words, the use of this three-chemical sequence results in a possibility the person to whom it is administered will be conscious when the inherently painful potassium chloride takes effect, yet no one will know because of the paralytic effects of the pancuronium bromide.

“It is undisputed that ‘substantial pain and suffering can occur when the inmate receives an inadequate dosage of sodium pentothal and therefore retains consciousness and sensation during the injection of the second and third chemicals.’ ” Beardslee v. Woodford, 395 F.3d 1064, 1074 (9th Cir.2005) (quoting Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L.Rev. 319, 380 (1997)). The possibility of such cruel, conscious suffering has resulted in nineteen states passing laws “banning, in whole or in part, the use of neuromuscular agents as a means of euthanizing animals.” Id. at 1071. As Brown’s district court pleadings indicate, Missouri is “using a combination of chemicals they knew or should have known would cause an excruciating death when they were telling the public it was like putting a dog to sleep, when their own veterinarians would lose their licenses for using the same chemicals on a stray.” Brown v. Crawford, No. 4:05-CV-746-CE J, Motion for Temporary Restraining Order at 19. Brown contends there are alternative chemical protocols — for example, a lethal dose of pentobarbital — Missouri could use to carry out an execution without unnecessarily inflicting gratuitous pain and suffering.

Brown’s § 1983 action is based in part upon a recently-published article. See L.G. Koniaris, M.D., Inadequate anaesthe-sia in lethal injection for execution, 365 The Lancet 1412 (Apr. 16, 2005). This article appears to be the first published empirical research showing the three-chemical process used by some states to carry out lethal injections has the possibility of causing unnecessary cruelty and suffering. The study outlined in the article analyzed autopsy toxicology results from forty-nine executions carried out in Arizona, Georgia, North Carolina and South Carolina. The authors conclude in twenty-one of those cases — or 43% — the post-mor-tem levels of thiopental (sodium pentothal) were consistent with consciousness. In other words, the deceased was likely conscious when the potassium chloride was administered.

In support of his motion for a temporary restraining order, Brown submitted the declarations of Dr. David Lubarsky and Dr. Mark Heath. Lubarsky was one of the authors of the article in The Lancet. Notably, Lubarsky averred that “[e]ach of the propositions of fact set forth in the LANCET article as aforesaid reflects my opinion to a reasonable degree of scientific certainty.” Lubarsky Deck at 3.

Lubarsky’s declaration further indicated:

Based on our research, the article concluded that toxicology reports from the four lethal-injection jurisdictions which provided them showed that postmortem concentrations of thiopental (sodium pentothal) in.the blood of persons who had been executed were lower than that required for surgery in 43 of 49 cases reported (88%) and 21(43%) inmates had concentrations consistent with awareness.

On the basis of the data which ... the State of Missouri has provided, and from the fact that according to these data, the procedure in Missouri is not substantially dissimilar to the procedure in the states which kept and provided toxicology data, I draw the inference, to a reasonable degree of medical certainty, that the levels of thiopental (sodium pento-thal) in the bloodstreams of persons executed by lethal injection in Missouri are, at best, similar to those levels executed in the four states which kept and provided toxicology data.

Id. at 4.

Dr. Lubarsky then goes on to list the data the State of Missouri would have to provide for him to rule out the possibility that Missouri’s execution protocol is insufficient to produce unconsciousness throughout an execution. Id. at 5-9.

Similarly, Dr. Heath, a board-certified anesthesiologist, filed a declaration in this action in which he states:

Based on the information the [defendants] have chosen to release [in a separate death penalty matter], it is my opinion to a reasonable degree of medical certainty that the defendants’ lethal injection practices create a foreseeable risk that the plaintiff/petitioner will not be anesthetized to the point of being unconscious and unaware of the pain for the duration of the execution procedure, when this risk is absolutely unnecessary to the statutory purpose of bringing about the death of the plaintiff/petitioner.

Heath Decl. at 18-19.

Significantly, at this point the record does not show the dosage of sodium pento-thal used by Missouri. The record does not show the qualifications of those administering Missouri’s three-drug protocol. Missouri has not countered Brown’s medical evidence with any medical evidence of its own, but rather relied solely on procedural and legal defenses to this action. The state’s failure to counter Brown’s medical evidence leaves Brown’s evidence uncontroverted. Thus, this case is unlike those in which similar challenges to this three-drug protocol were rejected, because in those cases the state presented medical evidence to counter the prisoner’s claim he would be conscious and suffer extreme, unnecessary pain during an execution. See Beardslee, 395 F.3d at 1075 (discussing the opinion of the state’s expert setting forth the sodium pentothal dosage level used by California and the minimal chances a person would be conscious within sixty seconds from the start of the administration of that dosage level); Reid v. Johnson, 333 F.Supp.2d 543, 546-47 (E.D.Va.2004) (discussing dosage level of sodium pentothal used by Virginia and the minimal chances' of an inmate regaining consciousness within ten minutes). On the current state of this record, where the State of Missouri has not presented any evidence to counter Brown’s medical evidence, I believe it is clear Brown is entitled to a stay of his execution. Sée Reid v. Johnson, 105 Fed. Appx. 500, 502 (4th Cir.2004) (granting a stay of execution in case involving Virginia’s' three-chemical execution protocol, and remanding to the district court for a consideration of the merits of inmate’s claim).

One of the procedural arguments the state made in this case, and with which the district'court agreed, was the claim Brown failed to exhaust his administrative remedies prior to filing this action. I disagree. The record in this ease shows there was no administrative process available to Brown to grieve this particular claim.

In the case of Johnston v. Kempker, No. 4:04-CV-1075DJS