***THIS IS A CAPITAL CASE***
`
`No. 16-6496
`
`~lr~ t~je ~u~rerrYe court of t~je ~r~iteb ~t~te~
`
`STACEY JOHNSON, JASON McGEHEE, BRUCE WARD,
`TERRICK NOONER, JACK JONES, MARCEL WILLIAMS,
`KENNETH WILLIAMS, DON DAMS, and LEDELL LEE
`Petitioners
`
`v.
`
`WENDY KELLEY, in her official capacity
`as Director, Arkansas Department of Correction,
`and ARKANSAS DEPARTMENT OF CORRECTION
`Respondents
`
`On Petition for a Writ of Certiorari to the
`Supreme Court of Arkansas
`
`SUPPLEMENTAL BRIEF IN SUPPORT OF
`PETITION FOR A WRIT OF CERTIORARI
`
`MEREDITH L. BOYLAN
`Counsel of Record
`GEORGE KOSTOLAMPROS
`VEN~LE LLP
`575 7th Street, NW
`Washington, DC
`(202) 344-4000
`MLBoylan@Venable. com
`GKostolampros@Venable. com
`
`Counsel for Petitioners
`(Additional counsel follows)
`
`~-
`
`a-.
`
`~
`
`r~~ ,
`
`~1
`
`~7_ ~e,_~ ~~
`~s_
`~~w~._,
`x
`~, r~. ~'
`cn
`
`H
`
`.~
`
`

`

`~TENNIFFER HORAN
`Federal Public Defender
`Eastern District of Arkansas
`
`JOHN C. WILLIAMS
`Asst Federal Public Defender
`1401 W. Capitol, Ste. 490
`Little Rock, AR 72201
`(501) 324-6114
`j ohn_c_williams@fd. org
`
`Counsel for Petitioners McGehee,
`Noonez; Ward, and Maz~cel Williams
`
`~TENNIFER MERRIGAN
`~TOSEPH PERKOVICH
`PHILLIPS BLACK
`P.O. Box 2171
`New York, NY 10008
`(212) 400-1660
`j . me rrig a n@p hillip sblack. or g
`j . p e rkovich@p hillip sb lack. or g
`
`Counsel for Petitioner Wand
`
`JEFF ROSENZWEIG
`300 Spring Street, Ste. 310
`Little Rock, AR 72201
`(501) 372-5247
`jrosenzweig@att.net
`
`Counsel for Petitioners
`Johnson, Jones, Lee, and
`Kenneth Williams
`
`DEBox.~ R. SALLINGS
`35715 Sample Road
`Roland, AR 72135
`deborahsallings@gmail. com
`
`Counsel fo1• Pe titionez°Davis
`
`

`

`TABLE OF CONTENTS
`
`Supplemental Brief ........................................................................................................ 1
`
`Conclusion...................................................................................................................... 3
`
`

`

`SUPPLEMENTAL BRIEF
`
`Petitioners respectfully submit this supplemental brief to apprise the Court of a
`
`new case that has arisen since their last filing on December 22, 2016.
`
`On January 26, 2017, the United States District Court for the Southern District
`
`of Ohio granted a preliminary injunction staying the executions of prisoners Ohio
`
`intends to execute using a midazolam-based protocol. See In 1°e Ohio Execution
`
`Pz~otocol Litigation, No. 11-1016 (S.D. Ohio Jan. 26, 2017) (attached as Addendum).1
`
`The court concluded the plaintiffs will likely show that Ohio's midazolam-based
`
`execution protocol—which is substantially equivalent to the protocols at issue both
`
`here and in Az•tl~ur v. Dunn, No. 16-602—violates the Eighth Amendment.
`
`To reach that conclusion, the district court first determined, after a thorough 90-
`
`page discussion of the evidence, that "use of midazolam as the first drug in Ohio's
`
`present three drug protocol will create a `substantial risk of serious harm' or an
`
``objectively intolerable risk of harm' as required by Baze [v. Rees, 553 U.S. 35
`
`(2008)] and Glossip [v. Gross, 135 S. Ct. 2726 (2015)]." Add. 105a. The district court
`
`then discussed the availability of alternatives, finding that the plaintiffs had met
`
`their burden at the preliminary injunction stage to show that compounded
`
`pentobarbital is an available alternative to Ohio's current, constitutionally deficient
`
`protocol. The district court applied a practical standard for availability, noting that
`
`1 Ohio had been scheduled to conduct executions in February, March, and April of this year.
`In light of the district court's ruling and the State's appeal to the Sixth Circuit (discussed
`below), Ohio has rescheduled those executions; its next execution is now set for May 10,
`2017. See Notice of Reprieve, In re Ohio Execution Protocol Litigation, No. 11-1016 (S.D.
`Ohio Feb. 10, 2017).
`
`

`

`Ohio has sought FDA approval for the ingredients needed and is awaiting decision.
`
`Add. 106a. The court would not permit Ohio to moot the plaintiffs' claims by
`
`conducting executions absent adequate efforts to acquire a substantially safer drug
`
`that several other states have obtained—especially as Ohio has attempted to
`
`facilitate procurement by passing a law to shield drug suppliers. Add. 107a.
`
`Ohio has appealed to the United States Court of Appeals for the Sixth Circuit.
`
`That court has expedited the appeal. Briefing is scheduled to be completed on
`
`February 17, 2017. The court will hear oral argument on February 21, 2017, and a
`
`decision is expected soon. However, the case will not be decided before the Court's
`
`next conference on February 17, 2017, at which the petitions in this case and in
`
`Arthur will be considered. The Sixth Circuit's decision is likely to further develop
`
`the lower courts' interpretation of what it means to plead and prove an available
`
`alternative method of execution—a question that has caused much confusion and
`
`that is ripe for consideration.
`
`These developments heighten the need for review in this case for at least two
`
`reasons. First, the Ohio district court's detailed findings show that, in light of
`
`additional scientific scrutiny since the Court's decision in Glossip, midazolam does
`
`not render a condemned prisoner insensate to the intolerable pain that the second
`
`and third drugs in the protocol will undisputedly cause. Petitioners both here and in
`
`A1~thurwere prepared to make this showing, but the lower courts barred them from
`
`making it. Accordingly, they will be subjected to constitutionally intolerable
`
`suffering if the Court does not intervene. Second, the conflict between the district
`
`2
`
`

`

`court's opinion and the decisions of the Arkansas Supreme Court and the Eleventh
`
`Circuit shows that additional guidance is needed on Glossip's requirement to plead
`
`and prove an available alternative. As the Ohio district court wrote, Glossip "did not
`
`essay a rule about availability." Add. 107a. This uncertainty has led some judges to
`
`craft a burden that is virtually impossible for condemned inmates to satisfy. The
`
`Arkansas Supreme Court and the Eleventh Circuit sanctioned midazolam not
`
`because it carries no substantial risk of serious harm, but rather because of a
`
`mistaken reading of what it means to plead and prove an available alternative
`
`under Glossip. The petitions here and in Arthur present an ideal opportunity for the
`
`Court to clarify a condemned prisoner's path to relief once he has proven that an
`
`execution method entails an objectively intolerable risk of suffering.
`
`The Court should grant the Petition for a Writ of Certiorari.
`
`CONCLUSION
`
`FEBRUARY 14, 2017
`
`Respectfully sub
`
`ed,
`
`MERED L. BoYr.Aty
`GEORGE KOSTOLAMPROS
`VEN~sLE LLP
`575 7th Street, NW
`Washington, DC
`(202) 344-4000
`MLBoylan@Venable.com
`GKostolampros@Venable. com
`
`Counsel for Petitioners
`
`~3
`
`

`

`Case: 2;11-cv-01016-EAS-MRM Doc #; 948 Filed: 01/26/17 Page: 1 of 119 PAGEID #: 32124
`
`• •
`
`t
`
`~ • •,
`
`..
`t
`
`In re: OHIO EXECUTION
`PROTOCOL LITIGATION,
`
`This Order relates to Plaintiffs
`Phillips, Tibbetts, .and Otte.
`
`Case No. 2:11-cv-1016
`
`Chief Judge Edmund A. Sargus, Jr.
`Magistrate Judge Michael R. Merz
`
`DECISION AND ORDER GRANTING IN PART AND DENYING IN
`PART PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION
`
`This consolidated case under 42 U.S.C. § 1983 is brought by Ohio inmates under a
`
`sentence of death and seeks relief fi~om a number of assented constitutional deficiencies in Ohio's
`
`new lethal injection protocol adopted October 7, 2016.
`
`The above-named inmates and the State of Ohio unanimously consented to plenary
`
`magistrate judge jurisdiction over their cases (ECF No. 732) and Chief Judge Sargus referred
`
`these three cases on that basis (ECF No. 734). Hence the Magistrate Judge is authorized to
`
`decide the pending motions for temporary injunctive relief even though they are classified as
`
`"dispositive" motions under 28 U.S.C. § 636(b)(1)(A).
`
`This Decision and Order embodies the findings of fact and conclusions of law required
`
`for a preliminary injunction decision under Fed. R. Civ. P. 52. They are not binding at trial on
`
`1
`
`ADD. 1 a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 2 of 119 PAGEID #: 32125
`
`the merits. U»ited States v. Ed1~~ard Rose &Sons, 384 F.3d 258, 261 (6t~' Cir. 2014), citing Urri>>.
`
`of Texas v. Cai~7e~isch, 451 U.S.390, 395 (1981).
`
`In the most recent preliminary injunction decision in this case, Judge Frost wrote:
`
`The recent history of this litigation and its often frustrating factual
`developments can be found in the following Opinion and Orders,
`which this Court expressly incorporates herein by reference: In re
`Ohio Execution Protocol Litigation (Phillips), No. 2:11-cv-1016,
`2013 U.S. Dist. LEXIS 159680, 2013 WL 5963150 (S.D. Ohio
`Nov. 7, 2013); bZ re Ohio Execution Protocol Litigataon
`(Hai°tmat~), 906 F. Supp. 2d 759 (S.D. Ohio 2012), In re Ohio
`Execution Protocol Litigation (Wiles), 868 F. Supp. 2d 625 (S.D.
`Ohio 2012), In re Ohio Execution Protocol Litigation (Loi~~~aine),
`840 F. Supp. 2d 1044 (S.D. Ohio 2012), Cooey (B~~ooks) v. Kasich,
`Nos. 2:04-cv-1156, 2:09-cv-242, 2:09-cv-823, 2:10-cv-27, 2011
`U.S. Dist. LEXIS 128192, 20ll WL 5326141 (S.D. Ohio Nov. 4,
`2011), and Cooey (Smith) v. Kasich, 801 F. Supp. 2d 623 (S.D.
`Ohio 2011).
`
`In i~e Ohio Execution Protocol Litigation, 994 F .Supp. 2d 906, 908, n.2 (S.D. Ohio 2014).
`
`Rather. than incorporate by reference another judge's writing, this Court states it
`
`considers itself bound by the law of the case stated in these decisions and by decisions of the
`
`Smith Circuit in prior appeals in this case and 2:04-cv-1156.
`
`Current Litigation Context
`
`Most Ohio death row inmates are Plaintiffs in this case which has been pending under the
`
`above case number since 2011 and under the prior caption Cooey v. Sty°icklarrd, 2:04-cv-1156,
`
`since shortly after the Supreme Court authorized use of § 1983 to attack methods of execution in
`
`Nelson v. Campbell, 541 U.S. 637 (2004).
`
`2
`
`ADD. 2a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 3 of 119 PAGEID #: 32126
`
`Each of the above-named three Plaintiffs has an execution date set between February 15
`
`and April 12, 2017. Although execution dates for these three Plaintiffs were first set some time
`
`ago, they have been extended by action of Governor John Kasich several times, most recently by
`
`Warrants of Reprieve as to Plaintiffs Phillips and Tibbetts (ECF No. 848).
`
`The intention of the State of Ohio to proceed with three executions in the first quarter of
`
`2017 was announced to Plaintiffs' counsel in open court on October 3, 2016. At that time the
`
`State also announced its intention to promulgate, on October 7, 2016, the protocol by which the
`
`executions would be carried out (see Minute Entry, ECF No. 655; Transcript, ECF No. 672).
`
`Based on this announcement, the Court vacated the stay of these proceedings as to the
`
`three named Plaintiffs and set a schedule for the filing of a Fourth Amended Complaint to reflect
`
`the new protocol and the briefing of motions for preliminary injunctive relief (Order Partially
`
`Vacating Stay and Setting Schedule, ECF No. 658). In compliance with that schedule, each of
`
`these Plaintiffs filed a motion for preliminary injunctive relief, including a stay of execution
`
`(ECF Nos. 714, 715, 718). As required by the same scheduling order, Defendants filed their
`
`consolidated memorandum in opposition a week later (ECF No. 730).
`
`To protect the decisional process of the Sixth Circuit on the then-pending interlocutory
`
`appeal in this case, the Court entered a preliminary injunction pendente life (ECF No. 834) which
`
`was appealed by the State (ECF No. 841). The Sixth Circuit then decided the interlocutory
`
`appeal on Judge Frost's protective order. Feaf°s v. Kaszch,
`
`F.3d
`
`, 2016 U.S. App. LEXIS
`
`23424 (6t" Cir. Dec. 30, 2016). This obviated the reason for the pendente lite stay and it was
`
`dissolved (ECF No. 910). The Court commenced afive-day evidentiary hearing on the
`
`preliminary injunction motions January 3, 2017.
`
`3
`
`ADD. 3a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 4 of 119 PAGEID #: 32127
`
`The Pending Motions for Injunctive Relief
`
`As provided in the Court's scheduling order, each of the above-named Plaintiffs filed a
`
`Fourth Amended Complaint on October 26, 2016, to address Ohio's newly revised execution
`
`protocol (ECF Nos. 691, 692, 695).1 Complying with the same Order, they each filed Motions
`
`for Preliminary Injunction and concomitant stays of execution in November (ECF Nos. 714, 715,
`
`718) 2
`
`Plaintiffs claim that their executions under the new Ohio protocol would violate their
`
`constitutional rights as follows:
`
`1.
`
`Under the Cruel and Unusual Punishment Clause of the Eighth Amendment because the
`
`new protocol embodies a reversion to a "more primitive, less humane execution method"
`
`than Ohio has heretofore used. (E.g., Plaintiff Raymond Tibbetts' First Claim for Relief,
`
`denominated WilkeNson-Kemn~ler Claim and relying on Wilkei~soiz v. Utah, 99 U.S. 130
`
`(1879); In re Ke»~T~~ler, 136 U.S. 436 (1890); and Trop v. Dulles, 356 U.S. 86 (1958).
`
`Plaintiffs argue separate Eighth Amendment claims in their Proposed Findings as an
`
`"evolving standards of decency"/"devolution" claim under Trop and an Eighth
`
`Amendment claim under WilkeJ~son-Ken~i~~ler in which they are not required to prove an
`
`available alternative method of execution.
`
`2.
`
`Under the Cruel and Unusual Punishment Clause of the Eighth Amendment because a
`
`three-drug execution method which includes midazolam, a paralytic, and potassium
`
`I The Sixth Circuit has previously held that the statute of limitations fora § 1983 action challenging a method of
`execution begins to run anew any time the execution protocol is amended. Cooey (Beiike) >>. Sb•ickla~ad, 604 F.3d
`939, 942 (6`" Cir. 2010).
`2 Plaintiffs Tibbetts and Otte make claims that do not overlap with those of Plaintiff Phillips. These non-overlapping
`claims are not ripe and were not heard on the evidence in the early January hearing. All three Plaintiffs included
`requests for temporary restraining orders which are mooted by the preliminary injunction hearing.
`
`0
`
`ADD. 4a
`
`

`

`Case: 2;11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 5 of 119 PAGEID #: 32128
`
`chloride creates a substantial risk of serious harms (E.g., Plaintiff Raymond Tibbetts'
`
`Third and Fourth Claims for Relief, denominated Baze-Glossip Claims and relying on
`
`Baze v. Rees, 553 U.S. 35 (2008), and Glossip v. Gf°oss, 576 U.S. _, 135 S. Ct. 2726,
`
`192 L. Ed. 2d 761 (2015).)
`
`3.
`
`Under the Equal Protection Clause on a class-of-one theory and relying on the State of
`
`Ohio's alleged violations of prior execution protocols (E.g., Plaintiff Raymond Tibbetts'
`
`Eighth Claim for Relied.
`
`4.
`
`On claims under the doctrines of judicial admissions, judicial estoppel, and promissory
`
`estoppel (E.g., Plaintiff Raymond Tibbetts' Sixth Claim for Relie fl.
`
`Standard for Preliminary Injunctive Relief
`
`In determining whether preliminary injunctive relief is merited in a capital § 1983 case, a
`
`trial or appellate court applies the following established. standards:
`
`(1) whether [petitioner] has demonstrated a strong likelihood of
`success on the merits; (2) whether he will suffer irreparable injury
`in the absence of equitable relief; (3) whether the stay will cause
`substantial harm to others; and (4) whether the public interest is
`best served by granting the stay. WoJ°kr~7af~ v. Bredesen, 486 F.3d
`896, 905 (6th Cir. 2007); N.E.J. Ohio Coal. for Homeless & Serv.
`Employees Intl Union, Local 1199 v. Bdackt~~ell, 467 F.3d 999,
`1009 (6th Cir. 2006). "These factors are not prerequisites that must
`be met, but are interrelated considerations that must be balanced
`together." Mich. Coal. of Radioactive Material Users, Inc, v.
`Gi~iepent~•og, 945 F.2d 150, 153 (6th Cu•. 1991).
`
`Cooey (Biros) v. Strickland, 589 F.3d 210, 218 (6tl' Cv. 2009). Judge Frost applied these same
`
`criteria in a prior preliminary injunction decision in this case. Ifs T°e: Ohio Execution Protocol
`
`Litig. (Loi•iaine), 840 F. Supp. 2d 1044, 1048 (S.D. Ohio 2012). They are consistently applied by
`
`5
`
`ADD. 5a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 6 of 119 PAGEID #: 32129
`
`the Sixth Circuit to preliminary injunctive relief requests across subject matter areas, Ove~•str•eet
`
`v. Lexington-Fayette U~~ban Co. Gov't, 305 F.3d 566, 573 (6~' Cir. 2002); Nightclubs, Ihc. v. City
`
`of Paducah, 202 F.3d 884, 888 (6t" Cir. 2000); Washington v. Reno, 35 F.3d 1093, 1099 (6~' Cu•.
`
`1994); NAACP v. City of Maf~sfteld, 866 F.2d 162, 166 (6th Cir. 1989); F~~isch's Restaurant, Inc.
`
`v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); Ifs i~e DeLorean Moto° Co., 755 F.2d 1223,
`
`1228 (6th Cir. 1985).
`
`Supreme Court case law is consistent.
`
`A plaintiff seeking a preliminary injunction must establish that he
`is likely to succeed on the merits, that he is likely to suffer
`irreparable harm in the absence of preliminary relief, that the
`balance of the equities tips in his favor, and that an injunction is in
`the public interest.
`
`Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008), citing Munaf v. Geren, 553 U.S.
`
`674, 689-90 (2008); An7oco Prod. Co, v. Ga»7be11, 480 U.S. 531, 542 (1987); Weif~beT°ger v.
`
`Roi~~ero-Barcelo, 456 U.S. 305, 311-12 (1982). The Court notes the Supreme Court statement
`
`of the standard does not attempt to quantify the degree of likelihood of success.
`
`The purpose of a preliminary injunction is to preserve a court's power to render a
`
`meaningful decision after a trial on the merits. Alaba»~a v. U.S. AN»ay Corps of Engif~eers, 424
`
`F. 3d 1117, 1128 (11th Cir. 2005), quoting Wright, Miller &Kane, Federal Practice and
`
`Procedure: Civil, § 2946.
`
`Although the fundamental fairness of preventing irremediable
`harm to a party is an important factor on apreliminary-injunction
`application, the most compelling reason in favor of entering a Rule
`65(a) order is the need to prevent the judicial process from being
`rendered futile by defendant's action or refusal to act. . . . [T)he
`preliminary injunction is appropriate whenever the policy of
`preserving the coma's power to decide the case effectively
`
`D
`
`~~~ ..
`
`

`

`Case: 2;11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 7 of 119 PAGEID #: 32130
`
`outweighs the risk of imposing an interim restraint before it has
`done so.
`
`Id. at § 2947.
`
`In a case such as this, a § 1983 challenge to the constitutionality of an imminently
`
`pending execution, failure to enjoin the execution will obviously render the case moot long
`
`before trial. Nevertheless, stays of execution are not to be granted routinely. A court must
`
`weigh the interest of a State in carrying out a lawful death sentence and its parallel interest in
`
`finality of criminal judgments. Worl~nan, supra.
`
`This Decision is divided into four sections paralleling the four factors required to be
`
`found:
`
`I. Likelihood of success on the merits with each of Plaintiffs' claims discussed separately;
`
`II. Irreparable harm;
`
`III. The balance of equities; and
`
`IV. The public interest.
`
`I. The Likelihood of Success on the Merits
`
`Plaintiffs' Eighth Amendment Claims
`
`Although much prior litigation in this case has focused on Equal Protection claims, here,
`
`as in the McGuire preliminary injunction proceeding, the focus is on the Eighth Amendment.
`
`Plaintiffs assert they can prevail under any one of tluee purportedly distinct Eighth Amendment
`
`theories. They make what they describe as Baze/Glossip Claims, Wilke~~sof~/Ke»~mler Claims,
`
`7
`
`ADD. 7a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #; 948 Filed: 01/26/17 Page: 8 of 119 PAGEID #: 32131
`
`and Evolving Standards of Decency/Devolution Claims (Plaintiffs' Amended Proposed Findings
`
`of Fact and Proposed Conclusions of Law (ECF No. 895-1, PageID 30028).)
`
`The Wilkerson/Kemnzler Claim
`
`As the Court understands the Wilkerson/Kenz»~le~• Claim, it is based on Justices Thomas
`
`and Scalia's concurrence in Baze. As the Supreme Count in Glossip read that concurrence, it
`
`would have upheld any method of execution against an Eighth Amendment challenge "unless it
`
`is deliberately designed to inflict pain." Glossip, 135 S.Ct. at 2738, n. 2, citing Baze, 553 U.S. at
`
`94. Plaintiffs here assert the Ohio three-drug protocol is so likely to inflict severe pain that its
`
`use should be read as a deliberate infliction of pain or at least as recklessly indifferent to that
`
`possibility. Success on such a claim, they assert, does not depend on their proof of a readily
`
`available alternative method of execution, an element of an Eighth Amendment claim under
`
`Baze/Glossip.
`
`This Court is not persuaded that Supreme Court Eighth Amendment jurisprudence
`
`recognizes these three disparate theories. The Wilke~~son/Kemn~der theory is based on a
`
`concurrence which did not command a majority of the Court. If that theory were the law,
`
`moreover, it would not be successful here. Based particularly on the testimony of Ohio
`
`Department of Rehabilitation and Corrections ("ODRC") Director Gary Mohr,3 the Court
`
`concludes that the State's efforts have been directed toward making executions more humane
`
`and less painful, and not just minimally constitutional. Plaintiffs did not prove at the preliminary
`
`3 Testimony confirmed that it is the ODRC Director who adopts the Ohio execution protocol. (ECF No. 925, PagelD
`31261.)
`
`8
`
`~~~ :.
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #: 948 Filed; 01/26/17 Page: 9 of 119 PAGEID #: 32132
`
`injunction hearing that an execution under the current protocol would be so likely to inflict
`
`serious pain that anyone using it would have to know that fact and intend the result.
`
`Evolving Standards of Decency Claim
`
`The Evolving Standards of Decency/Devolution Claim is also made under the Eighth
`
`Amendment. Plaintiffs outline that claim in their Proposed Conclusions of Law as follows:
`
`1. A state's punishment is assessed under the Eighth Amendment
`against the evolving standards of decency that mark the progress of
`a maturing society. Trop v. Dulles, 356 U.S. 86, 100-101 (1958)
`(plurality opinion).
`
`2. An execution method can be unconstitutional if the method
`represents "devolution to a more primitive" method that is a "step
`in the opposite direction" under society's evolving standards of
`decency and humanity, Glossip, 135 S. Ct. at 2795-97 (Sotomayor,
`J., principal dissent), such as if an execution method is less humane
`than the method used before.
`
`* **
`
`5. If a method of execution is categorically barred, then it can fever
`be imposed regardless of whether another form of execution is
`available. See G~~aha»~ v. Florida, 560 U.S. 48, 59 (2010) (the
`Eighth Amendment prohibits "inherently barbaric punishments
`under all circumstances."); Penry v. Lynaugh, 492 U.S. 302, 330
`(1989) (the "Eighth Amendment categorically prohibits the
`infliction of cruel and unusual punislunents.").
`
`6. Because the State may not impose a death sentence upon any
`inmate using an unconstitutional method of execution, there is no
`requirement to plead an alternative method of execution when
`claiming the method is categorially unconstitutional. "In~espective
`of the existence of alternatives, there are some risks `so grave that
`it violates contemporary standards of decency to expose anyone
`
`D
`
`ADD. 9a
`
`

`

`Case: 2.11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 10 of 119 PAGEID #: 32133
`
`U.S._, 135 S. Ct.
`unwillingly to' them." Glossip v. G~•oss,
`2726, 2793 (2015) (Sotomayor, J., dissenting, joined by Ginsburg,
`J., Breyer, J., and Kagan, J.) (quoting Helli»g >>. McKin~~ey, 509 U.
`S. 25, 36 (1993) (emphasis in original)).
`
`* ~*
`
`8. When Defendants changed their protocol to abandon the tht~ee-drug
`method and to abandon the paralytic drug and potassium chloride,
`they expressly did so to be more humane, and the courts gave them
`credit for that. By reintroducing athree-drug execution method,
`reinh~oducing a paralytic drug, reintroducing potassium chloride,
`and using a first drug that is demonstrably incapable of protecting
`the inmate against the torturous pain and suffering associated with
`the second and third drugs and the process of dying from injection
`of those drugs, Defendants have now gone backwards, contrary to
`their expressed purpose of the previous evolution and their
`promises to this Court and the Sixth Circuit.
`
`9. The key is not the devolution going backwards itself, but that
`Defendants evolved for the purpose of making execution
`procedures more humane, and were blessed by the counts for that
`evolution, and are now devolving to a markedly less safe and
`humane execution method. In such circumstances, devolution is
`not permissible.
`
`10. By intentionally reintroducing the second and third drugs back into
`DRC Defendants' execution protocol, and by reintroducing the
`three-drug execution method, DRC Defendants have intentionally,
`knowingly or recklessly moved backward to an execution method
`that is a devolution fiom the previous protocol.
`
`(ECF No. 895-1, PageID 30095-96.)
`
`The evolving standards of decency language, though its lineage is fifty years older than
`
`Baze, is no firmer a foundation for Plaintiffs' claims. It finds its source in Trop v. Darlles, supra.
`
`In Trop, the Supreme Coma held that use of denaturalization as a punishment for wartime
`
`desertion from military duty was barred by the Eighth Amendment. Chief Justice Warren wrote:
`
`10
`
`ADD. 10a
`
`

`

`Case: 2:11-cv-01016-EAS~MRM Doc #: 948 Filed: 01/26/17 Page: 11 of 119 PAGEID #; 32134
`
`The [Eighth] Amendment must draw its meaning from the
`evolving standards of decency that mark the progress of a maturing
`society.... [U]se of denaturalization as a punishment is barred by
`the Eighth Amendment. There may be involved no physical
`mistreatment, no primitive torture. There is instead the total
`destruction of the individual's status in organized society. It is a
`form of punishment more primitive than torture, for it destroys for
`the individual the political existence that was centuries in the
`development.
`
`356 U.S. at 101.4
`
`Just prior to this passage, however, he wrote:
`
`At the outset, let us put to one side the death penalty as an index of
`the constitutional limits on punishment. Whatever the arguments
`may be against capital punishment, both on moral grounds and in
`terms of accomplishing the purposes of punishment —and they are
`forceful —the death penalty has been employed throughout our
`history, and, in a day when it is still widely accepted, it cannot be
`said to violate the constitutional concept of cruelty.
`
`Id. at 99. Thus the Trop plurality expressly excluded the death penalty from its consideration.
`
`Trop makes its appearance in Fus•~rran v. Geofgia, 408 U.S. 238 (1972), in the
`
`concurrence of Justice Douglas and very extensively in the concurrence of Justice Brennan, who
`
`noted that Trop left open the future constitutionality of capital punishment. Id. at 285, n. 33. He
`
`concluded
`
`It is a denial of human dignity for the State arbitrarily to subject a
`person to an unusually severe punislunent that society has
`indicated it does not regard as acceptable, and that cannot be
`shown to serve any penal purpose more effectively than a
`
`4 For the evolving meaning of the Eighth Amendment, the Chief Justice relied on i~Yeems v. United States, 217 U.S.
`349 (1910), where the Court held "[t]he [Cruel and Unusual Punishment] clause of the Constitution in the opinion of
`the learned commentators may be therefore progressive, and is not fastened to the obsolete but may acquire meaning
`as public opinion becomes enlightened by a humane justice. See Ex pm•te Filson, 114 U,S. 417, 427; Macki» r.
`United States, 117 U.S, 348, 350..." Id. at 378. The commentator referred to is Thomas M, Cooley whose Treatise
`on Constitutional Limitations was probably the most influential legal text published in 19`h century America.
`
`11
`
`ADD. 11a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 12 of 119 PAGEID #: 32135
`
`significantly less drastic punishment. Under these principles and
`this test, death is today a "cruel and unusual" punishment.
`
`Id. at 286. Justice Brennan never deviated from this absolute position, one to which he
`
`eventually persuaded Justices Marshall and Souter. But that position never became the law of
`
`the land and in Glossip the Court again affirmed the constitutionality of the death penalty against
`
`an Eighth Amendment claim.
`
`While the "evolving standards of decency" language from Trop has never been
`
`repudiated by the Court, and was relied on by the Court in Atkins v. VirgiJ~ia, 536 U.S. 304, 311-
`
`12 (2002), and Rope° v. Sin7»~ons, 543 U.S. 551, 561 (2005),5 neither has it become the basis for
`
`declaring the death penalty per se unconstitutional In interpreting Trop, this Court is aware of
`
`Justice Frankfurter's dissent where he wrote:
`
`All power is, in Madison's phrase, "of an encroaching nature."
`Federalist, No. 48 (Earle ed. 1937), at 321. Judicial power is not
`immune against this human weakness. It also must be on guard
`against encroaching beyond its proper bounds, and not the less so
`since the only restraint upon it is self-restraint.
`
`Tiop, 396 U.S. at 119. What is true for Supreme Court Justices is truer still for trial courts,
`
`whose business lies in obeying. "Unless we wish anarchy to prevail within the federal judicial
`
`system, a precedent of this Court must be followed by the lower federal courts no matter how
`
`misguided the judges of those counts may think it to be." Hutto v. Davis, 454 U.S. 370, 375
`
`(1982). Following precedent is, of course, an art form, not a matter of blind obedience.
`
`Sometimes a district court can accurately anticipate where the Supreme Court is ready to go. See
`
`Obergefell v. Kasich, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio 2013)(Black, J.), affirmed sub
`
`nom Obergefell v. Hodges, 135 S.Ct. 2584 (2015). But because this Court believes neither the
`
`5 In these hvo cases, the Supreme Court held that the execution of the intellectually challenged and juveniles,
`respectively, violated the Eighth Amendment to the Constitution.
`
`12
`
`ADD. 12a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #; 948 Filed: 01/26/17 Page: 13 of 119 PAGEID #: 32136
`
`Sixth Circuit nor the Supreme Count is prepared to recognize an "evolving standards of decency"
`
`claim, it concludes Plaintiffs are unlikely to prevail on this claim.
`
`The Baze/Glossip Claim
`
`In Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court upheld Kentucky's lethal
`
`injection protocol which called for an initial injection of sodium thiopental, a second such
`
`injection if the first did not render the inmate unconscious, then the paralytic drug pancuronium
`
`bromide and finally potassium chloride to cause cardiac arrest. Petitioners conceded that the
`
`protocol itself was humane and constitutional if performed properly, but asserted there was a
`
`significant risk the thiopental sodium would not be administered properly and the irunate would
`
`suffer severe pain when the other two drugs were administered. Plaintiffs proposed alternatives
`
`which they claimed would eliminate an "unnecessary risk" of serious harm. The plurality
`
`opinion rejected that standard in favor of the "substantial risk of serious harm" or "objectively
`
`intolerable risk of harm" standards adopted in Faf•n~er v. Brennan, 511 U.S. 825 (1994). As
`
`noted above, Justices Scalia and Thomas concurred in the judgment, but believed the Com•Ys
`
`standard departed inappropriately from the original meaning of the Cruel and Unusual
`
`Punishments Clause.
`
`In Glossip v. G~•oss, 576 U.S.
`
`135 S.Ct. 2726 (2015), the Supreme Court considered
`
`Oklahoma's lethal injection protocol which required administration of a 500 milligram dose of
`
`midazolam, followed by a paralytic agent and potassium chloride. Justice Alito wrote for a
`
`majority and reaffirmed Baze's requirement that, to prevail, inmates challenging a method of
`
`execution must identify "a known and available alternative method of execution that entails a
`
`13
`
`ADD. 13a
`
`

`

`Case: 2:11-cv-01016-EAS-MRM Doc #: 948 Filed: 01/26/17 Page: 14 of 119 PAGEID #: 32137
`
`lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims." Id. at
`
`2731 citing Baze. He wrote that
`
`Our decisions in this area have been animated in part by the
`recognition that because it is settled that capital punishment is
`constitutional, "[i]t necessarily follows that there must be a
`[constitutional] means of carrying it out." Id, at 47, 128 S. Ct.
`1520, 170 L. Ed. 2d 420. And because some risk of pain is inherent
`in any method of execution, we have held that the Constitution
`does not require the avoidance of all risk of pain. Ibid. After all,
`while most humans wish to die a painless death, many do not have
`that good fortune. Holding that the Eighth tLmendment demands
`the elimination of essentially all risk of pain would effectively
`outlaw the death penalty altogether.
`
`Id. at