Donald Beardslee, a death row inmate in California scheduled for execution on January 19, 2004, appeals a district court’s denial of his motion for a preliminary injunction against Jeanne S. Woodford, Director of the California Department of Corrections, and Jill L. Brown, Warden of San Quentin State Prison. Beardslee argues that executing him via California's lethal injection protocol would violate his Eighth Amendment right against cruel and unusual punishment and potentially his First Amendment right to freedom of speech. After his conviction for two counts of first-degree murder was upheld by the California Supreme Court, Beardslee exhausted state remedies and filed a federal habeas corpus petition, which was denied without a Certificate of Appealability regarding the execution method. Following the denial of his Supreme Court certiorari petition, Beardslee filed a § 1983 suit challenging the lethal injection protocol and sought a temporary restraining order and preliminary injunction. The district court denied these motions on January 7, 2005, leading to this appeal for injunctive relief, which the Ninth Circuit affirms, maintaining jurisdiction under 28 U.S.C. § 1292(a)(1).
To secure a preliminary injunction, Beardslee must establish: (1) a strong likelihood of success on the merits; (2) potential for irreparable harm if relief is denied; (3) a balance of hardships favoring him; and (4) in certain cases, the advancement of public interest. Alternatively, he may demonstrate either a combination of probable success and possible irreparable injury or that serious questions are raised with a sharp balance of hardships favoring him. The relationship between these criteria reflects a continuum; greater hardship for Beardslee can reduce the burden of proving success. In cases involving public interest, courts evaluate whether it favors Beardslee. In capital cases, the state’s interest in executing its judgment is significant, influencing the court's decision on equitable relief. Courts must also consider the timing and any unnecessary delays in filing claims. The review of a preliminary injunction denial is for abuse of discretion, with limited and deferential scrutiny.
The State argues that Beardslee is not entitled to relief due to prior litigation of a similar claim in federal habeas proceedings. However, the current § 1983 claim specifically challenges California’s lethal injection protocol, distinguishing it from his prior generic challenge to lethal injection methods. A § 1983 action allows challenges to execution methods, as acknowledged by the State and supported by past cases. To succeed under § 1983, Beardslee must allege a constitutional violation by a party acting under state law. His claim focuses on the execution method rather than the death sentence itself. Previous cases, Cooper and Fierro, did not definitively resolve jurisdictional questions related to these claims, and the Supreme Court has also refrained from addressing this issue.
Beardslee contends that the defendants, under state law, will infringe upon his Eighth and First Amendment rights through California's lethal injection protocol. His claim is characterized as a 'conditions of confinement' challenge, which is actionable under § 1983, rather than a challenge to the legality of his sentence appropriate for federal habeas review. While habeas proceedings address the 'legality or duration' of confinement, civil rights actions focus on 'conditions of confinement.' Beardslee is permitted to pursue this challenge through a § 1983 action, despite previously contesting the constitutionality of the lethal injection statute in his habeas petition.
The district court, referencing the case Cooper, applied a 'strong equitable presumption against granting a stay of execution' because Beardslee filed his action only after his execution was scheduled. However, Cooper did not establish such a presumption as definitive; it merely reported a district court finding before addressing the merits. The Supreme Court has indicated that delays can be considered in equitable decisions, particularly if they suggest manipulative intent. In Beardslee's case, he acted swiftly once execution was imminent, and the protocol could change before the execution. Unlike Cooper, Beardslee actively pursued his claims when he deemed them ripe.
Despite the district court's incorrect application of a presumption regarding the timing of Beardslee's claim, it did not abuse its discretion in denying the preliminary injunction and stay of execution based on his Eighth and First Amendment claims. The Eighth Amendment prohibits punishments that are inconsistent with evolving societal standards and those that inflict unnecessary pain or torture. Relevant precedents indicate that execution methods must not violate human dignity. The court previously upheld execution by hanging in Washington, noting its rapid and humane execution process.
California's lethal gas execution protocol was previously found to violate the Eighth Amendment in Fierro v. Gomez, with the court noting that inmates could remain conscious for up to a minute during execution, experiencing intense pain due to oxygen deprivation. The evaluation of execution methods considers "evolving standards of decency" and relies on objective factors, particularly legislative enactments. Beardslee challenges the current lethal injection protocol (Procedure 770) at San Quentin, which involves administering three chemicals: sodium pentothal to induce unconsciousness, pancuronium bromide to cause paralysis without affecting awareness, and potassium chloride, which inflicts severe pain and leads to cardiac arrest. Beardslee argues there is a significant risk of improper administration of sodium pentothal, potentially resulting in excruciating pain that would be obscured by paralysis from the pancuronium bromide. He asserts that if conscious during the latter two drug administrations, he would suffer suffocation and intense pain, unable to communicate due to paralysis. The State acknowledges the risk of torture if the first drug is misapplied but contests the likelihood of such a failure occurring.
Beardslee raises concerns regarding past lethal injection executions in California, citing toxicology reports from other states suggesting that condemned prisoners may have been conscious during the administration of pancuronium bromide. He references the American Veterinary Medical Association's (AVMA) prohibition against using neuromuscular paralytic agents like pancuronium bromide in animal euthanasia, noting that nineteen states have enacted laws restricting such practices. Beardslee argues that California's Procedure 770 lacks specificity and is complicated by variables like pre-execution sedatives and difficulties in intravenous access.
The State counters by stating that twenty-seven of the thirty-seven states using lethal injection follow the same drug protocol as California and that no court has found the method constitutionally flawed. They assert that previous challenges (e.g., in LaGrand v. Stewart) did not pertain to the California protocol and were based on evidentiary issues. The State highlights Beardslee's expert's acknowledgment that, when administered correctly, a five-gram dose of sodium pentothal would likely be fatal and that most individuals would become unconscious within a minute of proper administration.
In evaluating the arguments, the document notes that lethal injection is accepted by the majority of states with the death penalty. However, Beardslee specifically contests the California protocol, particularly the use of pancuronium bromide. The document emphasizes that at least nineteen states have laws favoring sedative-only euthanasia practices for animals, and the AVMA's guidelines contraindicate the use of sedatives with muscle relaxants due to the risk of causing conscious suffering during suffocation.
The AVMA opposes the use of neuromuscular drugs for animal euthanasia, a stance that has been embraced by numerous states. In assessing the method of execution at San Quentin, the focus should be on the objective evidence regarding the pain inflicted by the lethal injection procedure. This method originated in Oklahoma when Senator Bill Dawson sought Dr. Stanley Deutsch’s expertise on executing prisoners through intravenous drug administration. Dr. Deutsch recommended an "ultra short acting barbiturate" for inducing unconsciousness, followed by a neuromuscular blocker for paralysis and death. Oklahoma adopted this method in 1977, and Texas conducted the first lethal injection execution in 1982. California has authorized lethal injection since 1992, making it the presumptive execution method since 1996, driven by humane concerns over the constitutionality of lethal gas. A California Assemblyman asserted that lethal injection is devoid of discomfort, unlike the uncertainties surrounding gas chamber executions. The addition of potassium chloride to the lethal injection protocol's components is uncertain but likely stemmed from medical consultations and execution machinery creator Fred Leuchter's input. Twenty-seven states utilize a three-drug protocol, with the crucial aspect being the correct administration of the barbiturate, as inadequate dosages can lead to substantial pain if the inmate remains conscious during subsequent drug injections. Ethical restrictions prevent physicians from participating in executions, leaving inexperienced personnel to establish intravenous access, which can be complicated by prisoners' prior drug use or anatomical challenges. Executioners may resort to surgical 'cutdowns' to access veins when necessary. Sodium pentothal requires precise administration and monitoring due to its short-acting nature, with individual responses varying significantly, particularly among those with a history of resistance from anti-anxiety medications.
Beardslee presents evidence suggesting that several executed inmates in California may have experienced consciousness during their executions, which he argues could lead to significant pain. He cites execution logs for inmates William Bonin, Keith Williams, Jaturun Siripongs, and Manuel Babbit, indicating problems with the chemical administration that may have resulted in their awareness during the process. Despite this, the evidence does not sufficiently demonstrate that the district court abused its discretion in denying Beardslee's request for a preliminary injunction. Beardslee's expert opinion, based on witness accounts and execution logs, is weakened by the expert's admission that his knowledge of pharmacokinetics and pharmacodynamics of sodium thiopental is inferior to that of the State's expert. The State's expert claims that nearly all individuals would be unconscious within sixty seconds of receiving five grams of sodium pentothal, which is significantly more than the typical surgical dose, and that this dosage would maintain unconsciousness for over 13 hours.
The district court found that Beardslee's challenges align closely with those raised in a previous case, Cooper, and do not involve unique factors specific to him. Beardslee's expert agrees that, if properly administered, the sodium pentothal dosage should suffice to induce unconsciousness and likely death before the subsequent administration of pancuronium bromide. He also questions the ambiguity of the execution procedure and the risks of improper drug administration. While the Supreme Court has dismissed Eighth Amendment challenges based on unforeseeable accidents, the State provided minimal evidence in response to Beardslee's claims, failing to defend the protocol robustly or justify the continued use of pancuronium bromide. The key issue for appellate review is not whether Beardslee raises serious concerns about the execution protocol but whether he has demonstrated a sufficient likelihood of experiencing consciousness and pain during the administration of the drugs involved.
An administration of five grams of sodium pentothal can induce unconsciousness or death if done correctly. Beardslee has not demonstrated a significant risk of improper administration or unique risks that would necessitate altering the protocol. His objections to pancuronium bromide are moot, as unconsciousness is likely to occur before its administration. The district court did not err in denying Beardslee's request for a preliminary injunction based on the evidence presented.
Beardslee also raises a First Amendment claim, asserting that pancuronium bromide would prevent him from expressing his pain, infringing on his free speech rights. However, he has not shown a risk of being conscious during the administration of the final drugs, leading to the conclusion that the district court was justified in denying this claim as well.
Consequently, the district court's decision to deny the preliminary injunction is affirmed, and the motion for a stay of execution is denied. The ACLU and Death Penalty Focus submitted an amici brief arguing for a public First Amendment right against the use of pancuronium bromide, claiming it obscures the execution process. However, as these parties did not intervene in the lower court, their arguments are not considered on appeal. Counsel for both parties and amici are noted.
