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Corrections Law
for Jails, Prisons and Detention Facilities


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Death Penalty

    Each of the plaintiff inmates was sentenced to death in Pennsylvania and housed on the death row of a state prison in solitary confinement. Each of their death sentences was vacated, but several years went by before they were resentenced to life without parole. They sued seeking damages for the time spent in solitary confinement on death row after their death sentences were vacated, claiming that this continued solitary confinement without meaningful review violated Fourteenth Amendment due process. A federal appeals court upheld summary judgment for the defendants. While the court found that there was a constitutionally protected liberty interest that prohibits the state from continuing to house inmates in solitary confinement on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement, that principle was not previously clearly established, so prison officials were entitled to qualified immunity. Williams v. Secretary Pennsylvania Department of Corrections, #14-1469, 2017 U.S. App. Lexis 2327 (3rd Cir.).
      Reversing the trial court's grant of habeas corpus relief to a death row inmate, a federal appeals court held that the court could not consider, during habeas corpus review, a "novel constitutional theory" that California's post-conviction system review of death sentences creates such a long delay that only an arbitrary number of prisoners are actually ever executed, in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Jones v. Davis, #14-56373, 2015 U.S. App. Lexis 19698 (9th Cir.).
     The U.S. Supreme Court rejected an Eighth Amendment constitutional challenge by death penalty inmates to Oklahoma's practice of using a 500-milligram dose of midazolam as the first drug it administered, before it administered a paralytic agent and potassium chloride in carrying out executions. The first drug made it a virtual certainty that the prisoner being executed would be unconscious when the second and third drugs were administered, and the plaintiff inmates failed to show that there was a known available alternative method of carrying out an execution that would provide a substantially less severe risk of pain. Glossip v. Gross, #14-7955, 2015 U.S. Lexis 4255.
     Prisoners on death row in Missouri challenged the constitutionality of the state's lethal-injection protocol, which was altered to use a single drug rather than a combination of three (an anesthetic, a paralyzing agent, and a drug to stop the heart) when the first drug became unavailable. While the challenge was pending, the protocol was revised from the drug propofol to compounded pentobarbital, and the plaintiffs amended their complaint to allege that the new drug constituted cruel and unusual punishment and that the defendants were deliberately indifferent to their medical need for their executions not to inflict gratuitous pain. The plaintiffs failed to meet their burden of showing that the use of the drug rose to the level of "sure or very likely" to cause serious harm or severe pain. They also failed to show that they had a First Amendment right to disclosure of information about the identities of the pharmacy that compounds the drug and its suppliers. Zink v. Lombardi, #14-2220, 2015 U.S. App. Lexis 3550 (8th Cir.).
     A trial court granted summary judgment to a Virginia death row prisoner enjoining prison officials to either improve his conditions of confinement or provide him with an individualized classification determination for his prison housing. A federal appeals court reversed, finding that the mere presence of harsh and atypical confinement conditions, by themselves, do not give rise to a liberty interest in avoiding them. Further, in the circumstances of the case, where state law mandates the conditions of confinement to be imposed on prisoners convicted of certain crimes and receiving certain sentences, such as housing on death row for those sentenced to death, those conditions of confinement are, by definition, "ordinary incidents of prison life" for those prisoners. No violation was shown of the plaintiff's procedural due process rights. Prieto v. Clarke, #13-8021, 780 F.3d 245 (4th Cir. 2015).
     A prisoner was sentenced to death after being convicted of murder, kidnapping, and rape. He challenged Missouri's lethal injection method as violating his Eighth Amendment rights. A federal appeals court found that he could proceed with that claim because it was not "patently obvious" that he could not prevail on his claim that his serious medical condition (cavernous hemangioma) created a unique risk that the lethal injection would result in excruciating pain, amounting to cruel and unusual punishment. There was also support for his assertion that the state unreasonably refused to change its regular method of execution to a "feasible, readily implemented" alternative that would "significantly reduce" the substantial risk of pain. Bucklew v. Lombardi, #14-2163, 2015 U.S. App. Lexis 3549 (8th Cir.).
     Two Pennsylvania newspapers sued seeking expanded access to prisoner executions. They asserted that various restrictions on access imposed by correctional officials violated the First Amendment right to report on matters of public interest. A settlement was reached allowing witnesses, such as reporters, to see and hear inside the execution chamber from the moment the prisoner enters until the time he or she is declared dead. The settlement serves the right of officials to turn off the sound system if the inmate attempts to make malicious or threatening remarks aimed at the witnesses. The Philadelphia Inquirer v. Wetzel, #12-cv-01817, U.S. Dist Ct. (M.D. Pa. Oct. 18, 2013).
     The lethal injection protocol adopted by California correctional officials was invalidated as it failed to substantially comply with requirements of the California Administrative Procedure Act (APA). The court enjoined the execution of any prisoner by lethal injection until new regulations were adopted that did comply with the procedural requirements of the statute.  Sims v. Department of Corrections & Rehabilitation, #A135290 2013 Cal. App. Lexis 424.
     The intended use of imported sodium thiopental, a foreign manufactured non-FDA approved drug in the plaintiff inmate's execution was insufficient to establish a constitutional violation. The plaintiff failed to show that the drug would result in an adverse reaction, and did not plausibly claim that the state would inject the plaintiff, while conscious, with painful lethal drugs. Cook v. Brewer, #11-15303, 2011 U.S. App. Lexis 6753 (9th Cir.).
     Death row inmates failed to show that Arizona's three-drug lethal injection execution protocol violated the Eighth Amendment. They could not prove that it was sure or very likely to cause serious pain and suffering. Dickens v. Brewer, #09-16539, 2011 U.S. App. Lexis 2543 (9th Cir.).
     U.S. Supreme Court rules, by 5-4, that imposing a death sentence for the rape of a child where the crime did not involve and was not intended to result in the child's death violates the Eighth Amendment's prohibition on cruel and unusual punishment. Kennedy v. Louisiana, No. 07-343, 2008 U.S. Lexis 5262.
     Kentucky's use of lethal injection to execute death row prisoners did not constitute cruel and unusual punishment in violation of the Eighth Amendment. Baze v. Rees, No. 075439, 128 S. Ct. 1520 (2008).
     A prisoner awaiting execution failed to show that he would experience anything more than a "loss of consciousness" during the lethal injection execution, based on evidence concerning Virginia's prior executions using that method. Reducing pain and discomfort during such an execution may well be good goals, the federal court noted, but there is not constitutional requirement that the carrying out of a death sentence be accompanied by a surgical "level of comfort." Emmett v. Johnson, No. 3:07CV227, 2007 U.S. Dist. Lexis 40047 (E.D. Va.).
     Death row inmate could proceed on his federal civil rights lawsuit claiming that Florida's procedures for execution by lethal injection violate the Eighth and Fourteenth Amendments because the initial drug administered during it could allow him to suffer severe pain while still conscious, a second drug results in paralysis of the lungs, and a third drug essentially causes a fatal heart attack. Hill v. Crosby, No. 06-10621, 2006 U.S. App. Lexis 22082 (11th Cir.). [N/R]
     Previously in this case, the U.S. Supreme Court ruled that the prisoner's constitutional challenge to the procedure could be brought under 42 U.S.C. Sec. 1983, and did not have to be pursued as an action seeking a writ of habeas corpus. Hill v. McDonough, No. 05-8794, 126 S. Ct. 2096 (2006). [N/R]
     Allegedly suicide-prone prisoner failed to show a causal connection between the pending execution of another inmate and the alleged increased risk that he and other suicide-prone prisoners might attempt to harm themselves. Trial court properly dismissed his lawsuit, which he sought to bring as a class action on behalf of suicide-prone prisoners, seeking to bar the execution. Ziemba v. Rell, No. 05-8903, 409 F.3d 553 (2nd Cir. 2005). [N/R]
     New Jersey correctional officials could not implement new regulations eliminating the requirement of the presence of an emergency cart with medical equipment and supplies at the scene of executions--for the purpose of reviving the inmate in the event of last minute stays--without providing an explanation of its reasoning. Defendant officials were required to present "strong" medical evidence that the effects of the lethal injections used were irreversible. Officials would also be required to show how new restrictions on media access to and filming of executions were justified by legitimate penological, safety, and security concerns. In Re. Readoption of N.J.A.C. 10A:23, 842 A.2d 207 (N.J. Super. A.D. 2004). [N/R]
     Texas prisoner on death row could pursue federal civil rights lawsuit claiming that the state's protocol for lethal injection violates the Eighth Amendment prohibition on cruel and unusual punishment, since that claim challenged the method of execution rather than the death sentence itself. Court finds that the prisoner was entitled to a temporary restraining order staying his execution by this method. Harris v. Johnson, 323 F. Supp. 2d 797 (S.D. Tex. 2004). [N/R]
     Federal appeals court upholds injunctive orders requiring the remedying of "filthy" conditions, inadequate mental health care, inadequate ventilation, and malfunctioning toilets on death row in Mississippi prison, but rejects a number of other injunctive orders by trial court, including requirement of a preventative maintenance program, as not supported by the evidence or improper micro-management. Russell v. Johnson, #03-60529, 2004 U.S. App. Lexis 13890 (5th Cir. 2004). [2004 JB Aug]
     U.S. Supreme Court, in case involving death-row prisoner's challenge to Alabama state's use of a death penalty procedure requiring an incision into his arm or leg to access his severely compromised veins, rules that federal civil rights statute, 42 U.S.C. Sec. 1983 is an "appropriate" manner to assert an Eighth Amendment claim challenging confinement conditions in prison and seeking injunctive relief. Nelson v. Campbell, #03-6821, 124 S. Ct. 2117 (2004).[2004 JB Jul]
     Prisoner was not entitled to a stay of execution on the basis of his claim that if a lethal injection was administered to him in an improper way, he could experience severe pain without any visible indication of it. In Re Williams, #04-3014, 359 F.3d 811 (6th Cir. 2004). [N/R]
     Prison regulation that prevented journalists who attended and reported on executions from viewing the lethal injection procedures prior to the actual administration of the injection violated the public's First Amendment right to view executions from the time the condemned prisoner was first brought into the execution chamber. California First Amendment Coalition v. Woodford, #00-16752, 299 F.3d 868 (9th Cir. 2002). [N/R]
     A prisoner on death row was not entitled to an injunction preventing the state Department of Corrections from executing him until his possible "unnecessary" pain and suffering during the process was minimized. A federal appeals court upheld the finding that the plaintiff's claim, filed as a federal civil rights lawsuit, was properly construed to be a second habeas petition, which he had improperly filed with the trial court without seeking prior permission from the appeals court to file an additional application, so that the trial court had no jurisdiction to hear the claim. (The ruling came on August 14, 2002, the prisoner's execution date). Fugate v. Department of Corrections, No. 02-14400, 2002 U.S. App. Lexis 164611 (11th Cir.). [N/R]
     Prisoner sentenced to death was not entitled to a temporary restraining order based on his claim that prison officials planned to violate his right to privacy by permitting an "excessive number" of his victim's family members to view his execution and by improperly allowing recording equipment in the execution chamber. Prisoner did not show a substantial likelihood of success on his underlying federal civil rights claim. Coleman v. Wilkinson, No. 02AP-456, 770 N.E.2d 637 (Ohio App. 2002). [N/R]
         286:148 Prisoner who had been on death row for twenty-two years could not assert that the frequent delays and stays in his execution constituted "torture" or cruel and unusual punishment when the main reason for the delays were his own pursuit of every possible avenue to overturn his death sentence and filing of motions seeking the delays he now complained of. Faulder v. Johnson, 99 F. Supp. 2d 774 (S.D. Tex. 1999).
          [N/R] Court rejects argument that execution by hanging is cruel and unusual punishment in violation of Eighth Amendment. Langford v. Day, 110 F.3d 1380 (9th Cir. 1997). Editor's Note: For a prior decision reaching the same result, see Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994) (en banc).


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