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Lethal Injection Changes Don't Violate Ex Post Facto Clause

By Robyn Hagan Cain on October 12, 2011 | Last updated on March 21, 2019

We're pretty wimpy when faced with anything that might be slightly uncomfortable, so we tend to be fierce advocates of anesthesia and pain killers. The Arkansas Department of Corrections (DOC), by contrast, takes a more relaxed approach to pain.

Last week, the Eighth Circuit Court of Appeals rejected Arkansas prisoners ex post facto clause appeal and upheld an Arkansas law granting the DOC Director discretion in state's lethal injection procedures.

In 1983, Arkansas adopted the Methods of Execution Act. The Act changed the state's primary execution method to lethal injection, and required an inmate to be anesthetized before the injection of lethal chemicals. In 2008, the DOC adopted a lethal injection protocol known as AD 08-28, which gave the DOC Director discretion in how to carry out lethal injection procedures, and eliminated the anesthesia requirement.

The Arkansas prisoners challenged AD 08-28 as an ex post facto clause violation, arguing that it would create a significant risk of more painful execution because it grants the Director the ability to omit anesthesia from the protocol. The inmates alleged that the Director would seize that opportunity because he had lobbied the legislature to eliminate the anesthesia requirement to save money and reduce paperwork.

The Eighth Circuit Court of Appeals rejected the prisoners' claims, finding that the prisoners could do no more than speculate as to whether the Director would eliminate anesthesia from the protocol. In their petition, the prisoners did not concretely show that the Director would eliminate anesthesia at the time of execution, only that the Act made it "conceivable" that he would do so. Thus the prisoners failed to satisfy the "significant risk" of increased punishment needed for a violation of the ex post facto clause.

The speculative nature of the prisoners' theory was compounded by the fact that the Arkansas legislature passed the Act over two years ago and the Director had yet to eliminate the use of anesthesia.

The Eighth Circuit similarly rejected the prisoners' claims that the Act violates the ex post facto clause because it increases mental anxiety before execution since the prisoners cannot know the exact manner in which they will be executed. The court noted that such anxiety could be cured with a Freedom of Information Act request.

Do you think the Eighth Circuit Court of Appeals decision in this case is consistent with the Eighth Amendment?

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