Arkansas Not Required to Reveal Lethal Injection Drug Supplier

The Arkansas Supreme Court found that inmates have no constitutional right to require the state to disclose the source of the drugs used in lethal injections

Kelley v. Johnson, 2016 BL 203211, Ark., No. CV-15-992, 6/23/16.

   In a case from Arkansas, the state Supreme Court found that there was no constitutional right for inmates “to know” the source of the drug used in their future lethal injection executions. The prisoners argued that a more humane alternative, such as firing squad, existed, which would make death by lethal injection a violation of the Eight Amendment. The court rejected these arguments, noting that neither disclosing the supplier would “positively enhance the functioning of executions in Arkansas” and that there were no viable alternatives in operation that would be feasible, readily implemented, and would be cause less pain and suffering than lethal injection.

http://www.bloomberglaw.com/public/document/Kelley_v_Johnson_2016_Ark_268_Court_Opinion.

Federal Judge’s Ruling May Halt Future Executions in Arizona

A drug used in Arizona executions has passed its medical expiration date as a federal court hears a lawsuit claiming that the drug violates the Eight Amendment, potentially creating an indefinite hold to executions in the state

First Amendment Coal. of Ariz. Inc. v. Ryan, 2016 BL 160709, D. Ariz., No. 2:14-cv-01447, 5/18/16.

    A federal judge in Arizona refused to dismiss a lawsuit claiming that a drug used in the three step execution process in the state violated the Eight Amendment. The drug, however, reached its medical expiration date on May 31, 2016, effectively putting executions on an indefinite hold. The main argument against the the drug, midazolam, is that it violates the prohibition of cruel and unusual punishment because it does not always render an inmate unconscious.

    The judge notes that Glossip v. Gross does not control because the inmates in the case were able to provide alternative protocols that are considered less painful, such as removing midazolam from the cocktail or replacing it with another drug, satisfying the Supreme Court’s holding in that case.

http://www.bloomberglaw.com/public/desktop/document/First_Amendment_Coal_of_Ariz_Inc_v_Ryan_No_CV1401447PHXNVW_2016_B?1465246384

Judges may determine that a criminal forfeiture violates the Eight Amendment's excessive fines clause by considering whether it deprives the defendant of the future ability to earn a living.

United States v. Voloski, 2016BL 43826, 2d Cir., No. 14-4176-cr, 2/17/16

    The Second Circuit ruled that judges may consider that a criminal forfeiture is too harsh by determining whether it would deprive the defendant of the future ability to earn a living.

    In United States v. Bajakajian, 524 U.S. 321 (1998), the U.S. Supreme Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense." They gave four factors to make this determination:

• the essence of the crime and its connection to other criminal activity;
• whether the defendant is in the class of persons at whom the statute was principally aimed;
• the maximum sentence and fine that could have been imposed; and
• the nature of the harm caused by the conduct.

    Many courts (including the Eleventh and Ninth Circuits) have taken a narrow approach, essentially that the above list is exhaustive, and have ruled that excessiveness is determined by the character of the offense, not the offender. The Second Circuit concluded that there is an additional factor, that

• "a fine should not be so oppressive as to deprive a wrongdoer of his livelihood."

    The court indicated that this is not inconsistent with the Bajakajian decision, because the excessive fines clause comes from English constitutional tradition, which includes protections against livelihood deprivations. In this case, the court turned down Viloski's claim, because he had presented no evidence that his forfeiture would prevent him from earning a living once he was out of prison.

http://www.bloomberglaw.com/public/document/United_States_v_Viloski_No_144176cr_2016_BL_43826_2d_Cir_Feb_17_2