The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S PRELIMINARY INJUNCTION OR EMERGENCY MOTION FOR STAY OF EXECUTION and/or
Currently pending before the Court is Plaintiff's Emergency Motion for Preliminary Injunction or Stay of Execution (Docket No. 17). Having carefully reviewed the record, participated in oral argument, and otherwise being fully advised, the Court enters this Memorandum Decision and Order.
Plaintiff Paul Ezra Rhoades contends that there is a substantial risk that the State of Idaho will carry out his planned execution by lethal injection on November 18, 2011 in a manner that will result in serious harm by causing him excruciating pain and suffering. Rhoades contends that the execution protocol adopted by the Idaho Department of Correction does not contain adequate written and actual protection in its implementation against the possibility that he might be insufficiently anesthetized at the beginning of the execution process. The Court agrees with the parties that if Rhoades is not rendered sufficiently unconscious from the first drug used in the three-drug lethal injection protocol, then he will certainly suffer excruciating suffocation and pain from the remaining two drugs. The Court also finds, as agreed by the parties, that if properly anesthetized, there will be no risk of pain for Rhoades.
Rhoades asks the Court to rule that such a risk violates his rights under the Eighth Amendment of the U.S. Constitution to be protected from cruel and unusual punishment. He asks the Court to issue a stay upon the scheduled execution, so that his claim can be more fully heard and considered.
In order for Rhoades to be entitled to a stay of his execution, he must prove that he is likely to succeed on the merits of his claim that Idaho's method of execution violates the Eighth Amendment, that he is likely to suffer irreparable harm if a stay is not entered, that the balance of equities tips in his favor, and that a stay is in the public interest.
For the reasons described in this decision, the Court denies Rhoades's request for a stay of his execution. The Court finds that the Idaho Department of Correction, in setting out its formal protocol for the manner in which the execution will be conducted and in choosing and training the persons who will be involved in the execution, has provided appropriate safeguards to protect against a substantial risk that Rhoades will not be adequately anesthetized at the beginning of the execution process. The Court finds that although Rhoades has raised questions that present the possibility of error or mistake in the execution process, the safeguards of the Idaho protocol are substantially similar to those contained in execution protocols approved by the United States Supreme Court and by the Ninth Circuit Court of Appeals in similar cases. The Court also finds that the State of Idaho is not required to implement a different, one-drug, protocol in its executions without a more certain showing by Rhoades that Idaho's existing protocol raises a substantial risk of serious harm and that the alternative protocol significantly reduces such a risk, is feasible, and readily implemented.
The Court also finds, and acknowledges with a full understanding of the practical meaning of this decision, that if Rhoades's request for a stay is not granted, then the very nature of an execution means that he will suffer irreparable harm.
In regard to the equities of the case, the Court concludes that the equities in this case do not tip toward Rhoades any more than toward the Defendants. Rhoades did not bring this lawsuit, nor his request for a stay, until his execution date was on the near horizon. However, the Idaho Department of Correction did not even release its planned execution protocol until October 14, 2011, less than a week before new death warrants were issued in Rhoades's state criminal cases.
The Court finds that the public interest favors denial of the request for a stay of the execution. Rhoades has previously appealed the convictions and the sentences that brought him to this fast-approaching execution date, and has sought relief from the federal courts under federal habeas claims. Those appeals and collateral proceedings have run their course, and those issues are not before this Court. It has been over 23 years since Rhoades was first sentenced to death. The State of Idaho allows imposition of the death penalty for crimes such as committed by Rhoades. Rhoades was sentenced to death in two separate criminal cases, involving kidnapping and murder. The State of Idaho has an interest in seeing that its laws are enforced, and further delay will not meet that interest. Similarly, the uncertainties and expense that come from the delay that often follows death-penalty cases, as well as the impact of such delay upon the families of victims and their communities, will only be compounded by a stay of the execution. The public has an interest, independent of the difficult debate over the death penalty as a form of punishment at all, to have such proceedings reach a conclusion. Therefore, the Court finds that the public interest would not be served by a stay of the execution.
In summary, Rhoades has failed to show a right to have injunctive relief entered in this case, in the form of a stay of his execution. His motion for such relief is denied.
The Eighth Amendment of the Constitution of the United States, made applicable to the States through the Fourteenth Amendment, provides that:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
This is a case which asks how the Eighth Amendment should be applied to an execution scheduled for November 18, 2011. The condemned man, who is the Plaintiff in this case and who stands convicted of four capital punishment crimes, contends that the protection of the Eighth Amendment against cruel and unusual punishment should stop his execution. His claim is not that the death penalty is unconstitutional. Rather, he argues, through his counsel, that the manner in which the State of Idaho intends to go about his execution -- through the use of lethal injection -- will subject him to a substantial risk of serious harm in the form of severe pain, and is therefore unconstitutional as a form of cruel and unusual punishment. See Pl.'s Mem. in Supp. of Mot. for Prelim. Inj. or Stay of Execution, p. 3 (Docket No. 18). Alternatively, Plaintiff maintains that a stay should be granted "because the IDOC execution facility is incomplete, precluding the IDOC from complying with SOP 135." See id.
On March 24, 1988, Paul Ezra Rhoades ("Rhoades") was sentenced to death in Idaho's Seventh Judicial District state court for the kidnapping and murder of Susan Michelbacher.*fn1 On May 13, 1988, in the same state judicial district but in a separate criminal case, Rhoades again was sentenced twice to death, for the kidnapping and murder of Stacy Baldwin.*fn2
In the over 23 years that have followed, Rhoades pursued appeals and petitions for post-conviction relief in state court. He has also pursued habeas claims in federal court. All such appeals and other collateral proceedings have run their course, with their denouement coming when the United States Supreme Court denied certiorari review of Rhoades's federal habeas claims in the Bonneville County case on October 11, 2011, and in the Bingham County case on October 13, 2011.
Following the denials of certiorari, the cases returned to Idaho state court. On October 19, 2011, a new death warrant was issued by the state court in both the Bonneville County and Bingham County cases. The death warrants, directed at Brent Reinke, the Director of the Idaho Department of Correction, and Randy Blades, the Warden of the Idaho Maximum Security Institution, ordered that Reinke and Blades "cause the execution of said sentence of death to take place" on November 18, 2011, unless said sentence were to be stayed by law.
On September 22, 2011, Rhoades filed this lawsuit against Reinke and Blades, seeking an order permanently enjoining the State of Idaho from executing him (Docket No. 1). The death warrants issued on October 19, 2011, heightened the urgency of Rhoades's lawsuit, and, on October 28, 2011, he filed an Emergency Motion for Preliminary Injunction or Stay of Execution (Docket No. 17). Since that date, the Court has considered the written arguments and evidence of the parties, and heard testimony and additional argument during a lengthy hearing on November 10, 2011. This written decision resolves the issues of constitutional law concerning cruel and unusual punishment raised by Rhoades's motion asking to stay the execution. This decision does not revisit the challenges made by Rhoades against his conviction and his sentence. Those have been decided. This decision does not consider whether the death penalty, as a form of punishment, is constitutional for the crimes committed by Rhoades at issue here. The Supreme Court has said that it is. Gregg v. Georgia, 428 U.S. 153 (1976). Each State is free to decide on its own whether to provide for the death penalty. Idaho, through its elected legislature, has chosen to do so, and has further decided to inflict the death penalty through lethal injection.*fn3
Idaho, with the large majority of states that impose the death penalty, employs a three-drug lethal injection protocol. That protocol is identified as Idaho Department of Correction ("IDOC") Standard Operating Procedure 135.02.01.001 ("SOP 135"). Under SOP 135, executions are carried out through the sequential administration of three chemicals: a barbiturate (sodium thiopental, also known as sodium pentothal), pancuronium bromide, and potassium chloride.*fn4 The barbiturate drug anesthetizes the inmate by inducing unconsciousness, permitting the other two chemicals to be administered without causing pain. Pancuronium bromide is a paralytic neuromuscular blocking agent that causes complete paralysis and accompanying suffocation. Finally, potassium chloride induces cardiac arrest. Both Rhoades and the IDOC agree that if an inmate is not properly anesthetized by the sodium pentothal at the start of the execution, he will experience significant pain and suffering from the subsequent administration of the pancuronium bromide and potassium chloride. However, if the sodium pentothal is administered properly, it is equally uncontested that there is no risk of pain during the execution. This understanding of the three-drug protocol is discussed in both of the most significant cases for this Court, dealing with challenges such as the one brought by Rhoades in this case. See Baze v. Rees, 553 U.S. 35, 49, 53 (2008); Dickens v. Brewer, 631 F.3d 1139, 1142 (9th Cir. 2011).
The pending motion seeks injunctive relief in the form of an order staying the execution. Therefore, the Court considers the argument and the evidence under the so-called "Winter" standards, namely that Rhoades "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 equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). A preliminary injunction "is an 'extraordinary and drastic remedy' . . . never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-690 (2008) (internal citations omitted). Significantly, although the threat of irreparable harm is inescapable, the condemned prisoner is not entitled to "an order staying an execution as a matter of course. Both the State and the victims of crime have an important interest in the timely enforcement of a sentence."*fn5 Hill v. McDonough, 547 U.S. 573, 583-584 (2006), citing Calderon v. Thompson, 523 U.S. 538, 556 (1998). "[I]nmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay . . . ." Hill, 547 U.S. 573, 584.
When assessing these factors, the court must bear in mind that "a stay of execution is an equitable remedy" and "equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Hill, 547 U.S. at 584.
A. Rhoades is Not Likely to Succeed on the Merits
1. The Analysis Required by Baze v. Rees
The Eighth Amendment prohibits "punishments that involve the unnecessary and wanton infliction of pain, or that are inconsistent with evolving standards of decency that mark the progress of a maturing society." Cooper v. Rimmer, 379 F.3d 1029, 1032 (9th Cir. 2004). For a prisoner to establish an Eighth Amendment violation based on his future exposure to pain during an execution, he must demonstrate that "the conditions presenting the risk must be 'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently imminent dangers.'" Baze v. Rees, 553 U.S. 35, 50 (2008) (Roberts, C.J., plurality opinion) (emphasis in original and quoting Helling v. McKinney, 509 U.S. 25, 33, 34--35 (1993)). Put another way, "there must be a 'substantial risk of serious harm,' an 'objectively intolerable risk of harm' that prevents prison officials from pleading that they were 'subjectively blameless for purposes of the Eighth Amendment.'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842 & n.9 (1994)).
In Baze, the Supreme Court held that Kentucky's method of execution by lethal injection -- using the same three drugs -- did not violate the Eighth Amendment. See Baze, 553 U.S. at 63. The decision was comprised of seven separate opinions, which fell into three groups of Justices. In Ventura v. State, 2 So. 3d 194, 200 (Fla. 2009), the Florida Supreme Court observed that the Baze plurality: adopted a version of the substantial-risk standard, while Justice Breyer, concurring in the judgment, and Justices Ginsburg and Souter, adopted a version of the unnecessary-risk standard. In contrast, Justices Thomas and Scalia renounced any risk-based standard in favor of a rule of law that would uphold any method of execution which does not involve the purposeful infliction of "pain and suffering beyond that necessary to cause death." Justice Stevens did not provide a separate standard but, instead, expressed general disagreement with (1) the death penalty based upon his long experience with these cases and the purported erosion of the penalty's theoretical underpinnings (deterrence, incapacitation, and retribution), and (2) the allegedly unnecessary use of the paralytic drug pancuronium bromide.
Id. at 199-200 (emphasis in original; citations and footnotes omitted). Justice Stevens also said he believed that the plurality opinion concerning lethal injection procedures "would generate debate" in future cases, a concern Chief Justice Roberts answered thusly:
[T]he standard we set forth here resolves more challenges than [Justice Stevens] acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.
Baze, 553 U.S. at 61, 71 (emphasis added).*fn6 "Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual." Id.
Thus, Baze creates a constitutional "safe harbor" for those lethal injection protocols that are substantially similar to Kentucky's lethal injection protocol. See Dickens, 631 F.3d at 1146. Seeking a stay of his execution, Rhoades argues that SOP 135*fn7 is not substantially similar to Kentucky's lethal injection protocol (on its face and/or as applied), such that it necessarily violates the Eighth Amendment. See Mem. in Supp. of Mot. for Prelim. Inj. or Stay of Execution, p. 3 (Docket No. 18) ("Idaho's execution procedures create a demonstrated risk of severe pain, do[ ] not provide safeguards relied upon in Baze, and [are] not substantially similar to the Kentucky protocol upheld in Baze."). Additionally, Rhoades argues that the availability and effectiveness of a one-drug lethal injection protocol alternative -- adopted in Ohio, Washington, and South Dakota after the Baze decision was issued -- further establishes that SOP 135 violates the Eighth Amendment. See Reply to Resp. to Mot. for Stay, pp. 3-9. IDOC disputes each of these arguments in defending SOP 135's constitutionality.
2. SOP 135 is Substantially Similar to Kentucky's Lethal Injection Protocol as Discussed and Upheld in Baze
The parties agree that, if an inmate is not properly anesthetized by the sodium pentothal at the start of the execution, he will experience significant pain and suffering from the subsequent administration of the pancuronium bromide and potassium chloride. If the sodium pentothal is administered properly, there is no risk of pain during the execution. See Dickens, 631 F.3d at 1142. Therefore, the manner in which the sodium pentothal is administered is of critical importance when weighing a State's three-drug lethal injection protocol against the Eighth Amendment.
The Baze Court acknowledged the concern raised by the petitioner that IV*fn8 catheters could malfunction, and the sodium pentothal could infiltrate into surrounding tissue rather than just into the vein, possibly causing an inadequate dose of sodium pentothal to be delivered to the circulation system and, ultimately, the brain. See Baze, 553 U.S. at 53-54. However, Baze held that such potential problems "do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment" where Kentucky had put safeguards into place "to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner." Id., at 55. These standards were described as follows:
* "The most significant of these is the written protocol's requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman." Id.*fn9
* "Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. These sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers." Id.
* "In addition, the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences. These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected." Id.
* "The IV team has one hour to establish both the primary and backup IVs, a length of time the trial court found to be 'not excessive but rather necessary . . . .'" Id.
* "The qualifications of the IV team also substantially reduce the risk of IV infiltration." Id. at 56.
* "In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration." Id.
* "Kentucky's protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds." Id.
Id. "In light of these safeguards, [the Supreme Court could not] say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation." Id.; see also id. at 60 ("Again, the risk [of administering the second and third drugs before the sodium thiopental has taken effect] is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug."); id. at 62 ("Kentucky's decision to adhere to its protocol despite these asserted risks [of "mal-administration"], while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment.").
Rhoades argues that SOP 135 "contains none of the Baze safeguards." See Mem. in Supp. of Mot. for Prelim. Inj. or Stay of Execution, p. 11 (Docket No. 18). Specifically, Rhoades maintains that SOP 135 (1) "does not contain the 'most significant' safeguard, a required medical credential 'combined with at lease one year of professional experience'"; (2) "does not contain the second Baze requirement, daily experience"; (3) "does not contain the third Baze safeguard, in-house training"; (4) "does not contain the fourth Baze safeguard, meaningful redundancy"; and (5) "does not contain the final Baze safeguard, a meaningful consciousness check." See id. at pp. 11-23. This Court concludes, however, that SOP 135 is a substantially similar protocol to that approved in Baze.
First, Rhoades overstates the holding of Baze to the extent he equates the identified "safeguards" as mandatory requirements that must each be in place in order for a State's three-drug lethal injection protocol to pass constitutional muster. See Mem. in Supp. of Mot. for Prelim. Inj. or Stay of Execution, pp. 10-11, 14 (Docket No. 18). The Kentucky safeguards emphasized in Baze are among the means that Kentucky has chosen to protect against the risk of a failed administration of the first drug -- the anesthetic -- of the three-drug protocol. In other words, Baze neither operates as a doctrinal blueprint, instructing States on the exact type or quantum of safeguards needed to insulate a three-drug lethal injection protocol from challenge, nor does it foreclose the possibility that different, more, or even fewer safeguards could offer the same assurances against the understood risks presented in similar cases. Baze stands for the proposition that Kentucky's lethal injection protocol, as well as substantially similar lethal injection protocols, are constitutional. See Baze, 553 U.S. 35, 61 ("[a] State with a lethal injection protocol substantially similar to [Kentucky's lethal injection protocol] would not create a [demonstrated risk of severe pain]."). If Chief Justice Roberts intended that only Kentucky's precise protocol could meet Eighth Amendment scrutiny, he did not say so.
Second, even if the safeguards identified in Baze are understood to be more-or-less safety requirements as Rhoades contends, this Court is persuaded that the record developed thus far reveals that the safeguards contained in SOP 135 -- as further elaborated upon by Jeff Zmuda*fn10 in
his affidavit and his testimony during the evidentiary hearing -- satisfies these requirements in any event.*fn11 Indeed, on its face, SOP 135 contains even more safeguards ...