The 8th Circuit U.S. Court of Appeals today affirmed a district judge’s finding that the state of Arkansas’s three-drug execution protocol is constitutional.

In sum, the court said:

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… with no scientific consensus and a paucity of reliable scientific evidence concerning the effect of large doses of midazolam on humans, the district court did not clearly err in finding plaintiffs, Arkansas death-row inmates, failed to demonstrate that the protocol is sure or very likely to cause severe pain, and the district court properly dismissed their Eighth Amendment claim.

The three-judge panel upheld the lower court ruling unanimously, but Judge Jane Kelly in a concurring opinion said:

I agree that under our precedent the district court did not clearly err. However, I write separately to highlight how impossible a prisoner’s burden has become to succeed on an Eighth Amendment method-of-execution claim, and how hollow our review continues to be as a result.

Stacey Johnson and other inmates sued to stop the use of the three-drug procedure.

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In it, a prison official first administers the sedative midazolam. Once the official deems the condemned prisoner unconscious, the official then administers vecuronium bromide, a paralytic drug. Finally, potassium chloride is injected to stop the inmate’s heart.

The inmates said the process could subject them to severe pain. Judge Kristine Baker found that the plaintiffs failed to prove a substantial risk of severe pain and had not shown there was a readily available alternative.

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In affirming Baker, the 8th Circuit cited competing expert testimony on midazolam and wrote:

With no scientific consensus and a paucity of reliable scientific evidence concerning the effect of large doses of midazolam on humans, the district court did not clearly err in finding that the prisoners failed to demonstrate that the Arkansas execution protocol is sure or very likely to cause severe pain.

The court also addressed a new argument raised in the appeal:

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The prisoners also challenge the district court’s denial of their motion for a new trial. They argue that new evidence of the federal government’s ability to acquire pentobarbital for use in federal executions merits a new trial. Setting aside whether the State would have the same access to pentobarbital, this evidence was not material. The prisoners failed to establish that the State’s existing method was sure or very likely to cause needless suffering, so the State was not required to consider alternative methods. The district court did not abuse its discretion in denying the motion.

Arkansas has not had an execution since four in April 2017, state killings that followed a 12-yeqr gap. Four other executions set by Governor Hutchinson that year were halted by the court. Subsequent appeals and difficulty in obtaining execution drugs have further hampered continued executions in the state.

There are 30 men on Death Row in Arkansas, with the oldest conviction dating back to 1990. No execution dates are pending currently.

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I’ve asked the state if it has unexpired drugs on hand to carry out executions.

 
Update: a spokesman says the prison system doesn’t have the drugs necessary for executions.

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