On Appeal from the United States District Court for the District of Delaware (D.C. No. 06-cv-00300) District Judge: Honorable Sue L. Robinson.
The opinion of the court was delivered by: Fisher, Circuit Judge
Before: FISHER, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court's highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware's protocol presents no such risk. Accordingly, we will affirm the District Court's grant of summary judgment for Delaware and dissolve the District Court's stay.
Delaware, like the great majority of the more than thirty states that currently allow capital punishment, see Baze, 128 S.Ct. at 1527 n.1, requires that executions be carried out by lethal injection. DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.).*fn2 The statute requiring execution by lethal injection does not mandate the use of any particular drug or drugs, but does specify that "[p]unishment of death shall . . . be inflicted by intravenous [("IV")] injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead[.]" Id. The statute requires the Commissioner of the Delaware Department of Correction to devise procedures governing executions and to supervise executions. See id.
Pursuant to the authority granted by the Delaware statute, the Commissioner has devised a protocol for use during executions. The protocol has been amended several times over many years. Delaware carried out its first execution by lethal injection in 1992 under one such protocol. That protocol, like the current version, calls for the sequential IV injection of three chemicals into an inmate's bloodstream. The first chemical is sodium thiopental, which renders the inmate unconscious by inducing a coma. The second chemical is pancuronium bromide, a muscle relaxant that essentially paralyzes the inmate. Finally, the inmate's heart is stopped by an injection of potassium chloride.
Since 1992, Delaware has carried out a total of thirteen executions by lethal injection under its variably amended protocols. The execution teams involved in those executions have not always followed those protocols to the letter. In some instances, for example, the execution teams failed to administer the correct chemical dosage into the inmate's bloodstream. In other instances, the execution teams did not attend the requisite number of training sessions or verify that the equipment used during the executions was fully operational. Furthermore, Delaware officials have not consistently followed up with execution teams to determine whether a particular execution proceeded in accordance with the protocol or whether improvements in the protocol or its implementation were in order.
On August 29, 2008, Delaware instituted a new lethal injection protocol. Under the new protocol, the Commissioner and the Warden of the Delaware Correctional Center are designated as members of the execution team. The Warden selects the remaining team members from Department of Correction personnel based on a number of criteria, including length of service, ability to maintain confidentiality, maturity, willingness to participate, work performance, professionalism, staff recommendations, and review of personnel files. At least two members of the execution team are designated as members of the IV team, which may also include various specialists with at least one year of professional experience.*fn3 Members of the execution team are required to read the relevant portion of the protocol pertaining to their particular function and to rehearse the protocol at least three times within ninety days of a scheduled execution.
Under Delaware law, an inmate's execution is scheduled by a state trial court and must take place between the hours of 12:01 a.m. and 3:00 a.m. See DEL. CODE ANN. tit. 11, § 4209(f). No more than ten witnesses are permitted to attend an execution, including one adult member of the immediate family of the victim. See id.
Once an inmate's execution is scheduled, the new protocol calls for an individual designated by the Warden, approximately three hours before the execution, to transport the chemicals from a locked refrigerator to an "injection room," where the IV team prepares the syringes. Members of a "tie- down" team strap the inmate to a gurney in the execution chamber. After the tie-down team has exited the chamber, the IV team enters the chamber and verifies that the inmate's blood flow is not overly restricted by the gurney straps. The IV team then inserts a primary IV line and a backup IV line. If both the primary and backup lines cannot be established within one hour, the Commissioner must contact the Governor of Delaware and request that the execution be postponed. If the lines are established, the Warden signals to the IV team to administer the three-drug sequence. After the delivery of the sodium thiopental and a saline solution, the IV team must wait two minutes and check the inmate's consciousness. During this time, the curtain to the execution chamber is kept closed. The Warden calls the inmate's name out loud to observe any reaction from the inmate. At the same time, a member of the IV team assesses the inmate's consciousness by touching the inmate, shaking his shoulder, and brushing his eyelashes. If the inmate appears to be unconscious, the curtain is reopened and the Warden signals for the pancuronium bromide to be administered, followed by the potassium chloride. After two minutes have passed, if the inmate does not appear to be unconscious, the Warden must direct the IV team to discontinue use of the primary IV line and to resort to the backup IV line, beginning with a new injection of sodium thiopental. Following the injection of all three chemicals, the IV team signals the Warden that the process is complete. One of the IV team members then begins a stopwatch. If, after ten minutes, a heart monitor connected to the inmate does not indicate a flat line and a doctor is unable to pronounce the inmate dead, the Warden must order a new round of delivery of the three chemicals. The protocol calls for the process to continue until the inmate is declared dead.
To date, no inmate has been executed under Delaware's current lethal injection protocol.
In May 2006, Robert W. Jackson, III*fn4 initiated this lawsuit by filing a complaint in the United States District Court for the District of Delaware against various known and unknown Delaware officials (collectively referred to in this opinion as "Delaware").*fn5 Jackson asserted a claim under 42 U.S.C. § 1983,*fn6 alleging that Delaware's then-effective lethal injection protocol violated his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the Constitution. He sought temporary and permanent injunctive relief to prevent his execution by lethal injection until Delaware's protocol was brought into conformity with constitutional standards. Within days of filing his complaint, Jackson moved for a preliminary injunction to prevent his execution, which was then scheduled for May 19, 2006. The District Court granted that motion and stayed Jackson's execution. Thereafter, on Jackson's motion the District Court certified Jackson's proposed class of Delaware death row inmates (collectively referred to in this opinion as the "Plaintiffs") and appointed class counsel.
In September 2007, the District Court postponed a then-impending trial date in light of the Supreme Court's grant of the petition for a writ of certiorari in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520 (2008). In August 2008, after Baze was decided, Delaware notified the District Court that it had revised its lethal injection protocol. In December 2008, Delaware moved for summary judgment, essentially arguing that its new protocol was substantially similar to the one Baze found constitutional. The District Court held a hearing on the motion and, in March 2009, granted it in full. Jackson v. Danberg, 601 F. Supp. 2d 589 (D. Del. 2009). In its ruling, the District Court saw its inquiry as twofold: first, whether the Plaintiffs could show that Delaware would likely fail to comply with its new protocol given its historical noncompliance with its old protocol; and second, assuming an affirmative answer to the first inquiry, whether the Plaintiffs could show that Delaware's history of noncompliance presented an objectively intolerable risk of harm in the future. As to the first inquiry, the District Court declined what it perceived as the Plaintiffs' invitation to "assume that future conduct by different personnel under a new lethal injection protocol in a different legal environment will reflect past conduct by former personnel under a now rejected protocol." Id. at 598. In the Court's view, the Plaintiffs' theory would require a finding that "the new protocol is simply too complicated for a State to carry out . . . or that Delaware's personnel will intentionally ignore the requirements of the new protocol in order to intentionally cause undue pain and suffering." Id. The District Court concluded that Baze foreclosed the former proposition and that the record did not support either proposition. The Court further found that, even assuming the Plaintiffs' evidence regarding future harm had record support, such harm did not raise constitutional concerns. The Court explained that the only evidence the Plaintiffs had proffered in this regard related to the November 2005 execution of Brian Steckel. Steckel's execution had been prolonged by the slow delivery of sodium thiopental into his bloodstream, the District Court wrote, but that fact alone did not provide a sufficient basis for concluding that there was a "substantial risk of an inadequate dose of sodium thiopental under the new protocol." Id. at 599. Given this evidentiary deficiency, the Court held that the Plaintiffs had failed to show that "any mal-administration of the new protocol [was] very likely to pose an objectively intolerable risk of harm.'" Id. (quoting Baze, 128 S.Ct. at 1531) (internal quotation marks and footnote omitted). Accordingly, the District Court found that there were no genuine questions of material fact in dispute and granted summary judgment for Delaware. The Court, apparently acting sua sponte, simultaneously ordered its May 2006 stay of Jackson's execution to remain in effect pending appeal.*fn7
The Plaintiffs have timely appealed the District Court's grant of summary judgment for Delaware. Delaware has timely appealed the District Court's stay pending appeal.*fn8
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the purely legal question of how a Supreme Court decision is to be interpreted. See Kadelski v. Sullivan, 30 F.3d 399, 400 (3d Cir. 1994). We exercise plenary review over the District Court's grant of summary judgment. See Alexander v. Nat'l Fire Ins. of Hartford, 454 F.3d 214, 219 n.4 (3d Cir. 2006); KingVision Pay-Per-View, Corp. v. 898 Belmont, Inc., 366 F.3d 217, 220 (3d Cir. 2004). To that end, we are "required to apply the same test the district court should have utilized initially." Oritani Sav. & Loan Ass'n v. Fidelity & Deposit Co. of Md., 989 F.2d 635, 637 (3d Cir. 1993) (quotation marks and citation omitted). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether such relief is warranted, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The inquiry is "whether the evidence presents a ...