On May 8, 2006, a prisoner of the State of Delaware filed a lawsuit under 42 U.S.C. Section 1983 against the Delaware Department of Corrections in the U.S. District Court for the District of Delaware. The plaintiff, who was scheduled to be executed by lethal injection, asked the court to enjoin the defendants from carrying out the execution, arguing that the lethal injection procedure inflicts unnecessary pain and torture in violation of his Eighth Amendment right to be free from cruel and unusual punishment.

On May 9, 2006, the U.S. District Court for the District of Delaware (Judge Sue L. Robinson) granted the plaintiff's request for a preliminary injunction, holding that the U.S. Supreme Court's pending decision in Hill v. McDonough (CJ-FL-002) would have an impact on the outcome of this case. Jackson v. Taylor, No. 06-0300, 2006 U.S.Dist.LEXIS 27658 (D.Del. 2006).

On October 11, 2006, the case was referred to mediation. On December 1, 2006, the plaintiff asked the court to certify the case as a class action, and on February 23, 2007, the District Court (Judge Robinson) certified a plaintiff class of all inmates scheduled to be executed by the State of Delaware.

During the course of the litigation, the Defendants amended their lethal injection protocol twice in an effort to comport with the United States Supreme Court's decision in Baze v. Rees, which upheld Kentucky's lethal injection protocol against a similar Eighth Amendment challenge.

On March 11, 2009 the United States District Court for the District of Delaware granted the Defendants' motion for summary judgment. While the District Court acknowledged that the Defendants had at times failed to follow their own procedures, the Plaintiffs had failed to show a "substantial risk of an inadequate dose of sodium thiopental." However, the District Court stayed the executions pending appeal.

On February 1, 2010 the United States Court of Appeals for the Third Circuit issued an opinion affirming the District Court's grant of summary judgment. The Court of Appeals made clear that in order to prevail on a claim, the Plaintiffs needed to demonstrate that "the conditions presenting the risk must be 'sure or very likely to cause serious illness and needless suffering,' and give rise to 'sufficiently imminent dangers." In other words, the Court of Appeals found that "Delaware's 2008 Protocol is not unconstitutional under existing Supreme Court precedent." The Supreme Court denied certiorari on October 12, 2010.

After the Court of Appeals upheld the District Court's grant of summary judgment, the Plaintiffs filed a motion to reopen the case under Federal Rule Civil Procedure 60(b)(6) and (d) and a motion to stay the execution with the District Court. The District Court found that a stay was not warranted because Plaintiffs had "not carried their burden to prove that they are likely to succeed on the merits of their Eighth Amendment claim." On July 28, 2011 the Court of Appeals affirmed the judgment of the District Court. Following the Supreme Court's denial of certiorari, and Plaintiff Robert Jackson was executed just after midnight on July 29, 2011, by lethal injection.

The Court of Appeals, in a written opinion that followed Mr. Jackson's execution, found that the District Court had not abused its discretion in denying the stay of execution. Specifically, the Court of Appeals wrote that the District Court had not abused its discretion when it found that the plaintiffs had failed to "demonstrate that the substitution of pentobarbital resulted in a constitutionally unacceptable risk of pain and suffering."

As of July 27, 2011 the case has been closed

Justin Benson - 03/01/2012


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