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Towery v. Brewer – Ninth Circuit Court of Appeals

Towery v. Brewer, 12-15381, 2012 WL 627787 (9th Cir. Feb. 28, 2012) cert. denied, 11-9009, 2012 WL 638120 (U.S. Feb. 29, 2012)

Facts of the case:

Several prisoners on death row challenged Arizona’s new execution procedures (about a month old at the time of this ruling) under 42 U.S.C. §1983. the new procedure called for a change in how many drugs are administered in lethal injections from one originally to three. The inmates/plaintiffs argue the new execution procedures violate both the 8th Amendment and the 14th Amendment to the Constitution.

Part of the problem for the inmates was notice. The inmates claimed notice of the procedural changes were given at the 11th hour, and oral arguments in district court took place less than 48 hours within the first scheduled execution.

The other part of the problem was the new procedures called for the Arizona Department of Corrections to use a three drug cocktail during the lethal injection. The inmates objected to using three different drugs. However, on February 27, 2012, one day before the the 9th Circuit Court of Appeals decision was filed, the Arizona Department of Corrections notified the court it would go ahead and use one drug for lethal injections like they had under the old rules. It turns out, the originally planned drugs expired sometime in January, 2012, and the Arizona Department of Corrections did not realize it until six weeks later.

Plaintiffs: Robert Charles Towery, et al.,

Defendants: Janice K. Brewer, Governor of Arizona;et al.,

*This opinion was written per curiam, or by the whole 9th Circuit Court without the author of it being identified.

Issues:

  • the issue is whether the last minute change of executions procedures, using three drugs for lethal injection, violates the 8th and 14th Amendments to the Constitution of the Untied States.
  • The second issue is whether the injunction should be granted against the executions of Charles Towery and Robert Henry Moorman.

Rules for the combination of the three lethal injection drugs:

  • Because the Arizona Department of Corrections reversed course on Feb. 27th and decided to only administer one drug during the lethal injection, instead of three like was argued in the district court and preliminary hearing for the Ninth Circuit. Since the Arizona Department of Corrections appears not to know when some of their drugs expire until halfway through the appeals process, the appeals court did not rule on issues affecting the three drug cocktail. Thus, there is no violation of the 8th or 14th Amendments because of the change of the lethal injection cocktail, because there is no change of the lethal injection cocktail.

Rules for Preliminary Injunction:

  • “To obtain preliminary injunctive relief, Towery and Moormann must demonstrate that: 1) they are likely to succeed on the merits of such a claim; 2) they are likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in their favor; and 4) an injunction is in the public interest.”

Analysis:

  • Since the Arizona Department of Corrections abandoned the three drug cocktail for lethal injection, the Ninth Circuit Court of Appeals looked at Arizona’s execution procedure for a single drug lethal injection. This left the plaintiffs with their constitutional claims applied to preliminary injunctions.
  • The first part to the analysis of the preliminary injunction is the court’s look to see if the 8th Amendment was violated in some way. The Arizona Department of Corrections argues that the personnel who administer the IV are sufficiently qualified, they have backup materials on-hand (in case it is found the drugs are expired again), and access to legal counsel the morning of is sufficient.The court finds this does not meet the definition of cruel and unusual punishment under the 8th Amendment.
  • The second part to establish the preliminary injunction is to look to see if the 14th Amendment was violated in some way. Based on the new 2012 execution procedures the plaintiffs argue that the Director of the Arizona Department of Corrections to choose the personnel (if they have sufficient training), how many drugs are in the lethal injection cocktail (one or three), and where to inject the drugs into the person’s body. The court decides it is rational for the Director of the Arizona Department of Corrections to choose who is, “best situated to select the execution team from those available who meet the criteria listed in the protocol.” Thus, court also rules against the equal protection claim.

Holdings:

  • The new procedures of the Arizona Department of Corrections do not violate the cruel and unusual section of the 8th Amendment.
  • The new procedures of the Arizona Department of Corrections do not violate the equal protection clause of the 14th Amendment.