Latest in 8th Amendment challenges

Lopez v. Brewer, No. 12-16084 (5-15-12)(McKeown with Rawlison, concurrence and dissent by Berzon). Disclosure: This is an Arizona FPD-CHU case.

Once again Arizona is mounting an execution under authority that awards total discretion to the Director of Corrections in how it is administered.

The Director changes the protocol from execution to execution, and as such, courts reviewing the state's methods are "on a rolling ship." The 9th faced another challenge to the protocol, and expresses, again, great frustration, and even anger, at the state's claims to be trusted that no harm will occur, that everything will go fine. In the context of whether a preliminary injunction should be granted, the 9th finds a lack of a serious question in terms of success on the merits. The 9th also affirms the denial of the 8th amendment challenge as to pain from the placement of the IVs (femoral cuts), and the equal protection challenge as to the altering protocols. The 9th does grant limited relief in requiring the state to provide access to counsel up to 9:00 am (the execution begins at 10).

Dissenting, Berzon excoriates the state for its failures of proof, its lack of transparency, its secretive "in my discretion" answer to how things will be done, and for its stonewalling. Berzon argues that a violation of due process occurs. As she ends her dissent:

Executing someone convicted of a capital crime is a grim endeavor.

Reviewing the details of impending executions to assure against unconstitutional executions is grim as well, a task judges would rather avoid. Yet, while we as judges cannot and should not micromanage executions, we do have an obligation to stand as a last bulwark against excessively painful administrations of the death penalty. To do that, we need to be presented with the relevant facts, gathered in some feasible fashion. As matters now stand, Arizona has made the gathering of such facts by condemned prisoners so difficult that meaningful judicial consideration at a relevant time is not possible. By doing so, Arizona has denied Lopez, and others awaiting execution in Arizona, due process of law. I would stay Lopez's execution until this denial of due process is corrected by one or more of the means I have indicated.