Eleventh Circuit Rejects Eighth Amendment Challenge to Florida’s Lethal Injection Protocol

In Chavez v. Florida SP Warden, No. 14-10561 (Feb. 12, 2014), the Eleventh Circuit upheld the denial of an injunction against the substitution of drugs in Florida’s lethal injection protocol, and denied Chavez’s motion for a stay of execution filed with the Circuit Court. The basis for both holdings is the Court’s determination that Chavez failed to show he would likely succeed on the merits of his underlying claim that the protocol violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

Chavez was sentenced to death for a particularly heinous sexual assault and murder. After his execution was scheduled, Chavez filed a § 1983 suit challenging Florida’s revised lethal injection protocol. The protocol provided for the use of midazolam hydrochloride, instead of pentobarbital. Chavez argued that this substitution violated the Eighth Amendment because midazolam is not an effective anesthetic as administered under the protocol. Chavez sought an injunction, among other relief.

The district court conducted an evidentiary hearing. Both Chavez and the state presented expert testimony. The district court rejected Chavez’s expert’s testimony as speculative. It credited instead the State’s expert, who testified that the massive dose of midazolam called for in the protocol, forty times the typical clinical dosage, would be sufficient to induce both an anesthetic state and ultimately produce death. Based on its credit of the State’s expert, the district court denied the injunction.

The Eleventh Circuit holds that Chavez’s motion for preliminary injunction was properly denied because he failed to show substantial likelihood of success on the merits of his Eighth Amendment claim. The Supreme Court has held that capital punishment is generally constitutional, and that the Eighth Amendment does not require the elimination of all risk of pain. The Eighth Amendment is only violated when the lethal injection protocol creates a substantial risk of serious harm. See generally Baze v. Rees, 552 U.S. 35 (2008) (plurality opinion). The district court’s factual findings preclude any finding that the substitution of midazolam, as prescribed in the protocol, creates such a risk. Since the standard for a motion for stay of execution is substantially identical to the standard for an injunction, the Court denies that motion without discussion.

In addition to the opinion of the court, each judge on the panel filed a separate concurrence. Chief Judge Carnes’ opinion adds Chavez’s failure to show an available alternative to midazolam as an independently adequate reason his Eighth Amendment claim cannot succeed on its merits. Judge Wilson’s opinion notes the fact intensive nature of the inquiry into the change in lethal injection protocol, and praises the district judge’s conduct of the evidentiary hearing. Finally, Judge Martin’s opinion also praises the district court for conducting the evidentiary hearing, particularly given that the district court also concluded that Chavez’s claims were barred by Florida’s statute of limitations.

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