Death Row Challenge to Method of Execution Fails
The following summary of a recent federal court ruling in Thomas E. Creech v. Josh Tewalt, from the Ninth Circuit, while concerning the state of Idaho and its execution method, applies to a similar federal challenge to the method of execution in California.
Thomas Eugene Creech was sentenced to death in 1981 for a murder that took place in prison when he killed a fellow inmate by using a battery-filled sock to beat the victim to death.
He filed a petition for a preliminary injunction under 42 U.S.C. § 1983, raising claims that the protocol and the method of execution, by lethal injection, was unconstitutional as cruel and unusual punishment under the Eighth Amendment because the method of his execution presented a risk that is “sure or very likely to cause serious illness and needless suffering” and to give rise to “sufficiently imminent dangers.” Glossip v. Gross (2015) 576 U.S. 863, 877.
The Supreme Court requires that a plaintiff then show “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt [the alternative method] without a legitimate penological reason.” Bucklew v. Precythe (2019) 139 S. Ct. 1112, 1125.
Mr. Creech argued that the State of Idaho failed to provide sufficient information about the source of the lethal injection drug, pentobarbital. More specifically, Mr. Creech argued that the state might have obtained the drug from Akorn, a pharmaceutical company that went out of business February 2023 and subsequently recalled its product. Mr. Creech also suggested the possibility that the pentobarbital might have originated from other unreliable sources. Mr. Creech argued that due process required that he be informed of the source of the drug.
On February 23, 2024, the district court denied Mr. Creech’s motion for preliminary injunctive relief on the grounds that Mr. Creech had not made a clear showing of a likelihood of success on the merits of his claims and that the balance of equities and the public interest weighed against granting a preliminary injunction.
Moreover, the district court found that the Idaho Department of Corrections had provided Mr. Creech’s counsel with a Certificate of Analysis verifying that the pentobarbital in its possession complied with regulatory and quality standards and that it had a February 2025 expiration date. Therefore, the district court found that there was no due process violation and he was not entitled to know the source of the drug.
Furthermore, the district court found that Idaho Standard Operating Procedure 135.02.01.0001, is the applicable protocol for his execution by lethal injection and that Idaho has been and is presently following this protocol. Mr. Creech argued that his protocol did not address execution by firing squad, but the district court found that this was immaterial because that method was not being used for his execution. It is noteworthy that Mr. Creech did not suggest an alternative method of execution as is required in making such an Eighth Amendment claim.
Mr. Creech then appealed this ruling to the United States Court of Appeals for the Ninth Circuit in San Francisco, arguing that the district court abused its discretion.
The Ninth Circuit first explained that “a district court abuses its discretion if it (1) relies on an improper factor, (2) omits a substantial factor, or (3) commits a clear error of judgment in weighing the correct mix of factors.” Abdullah v. U.S. Sec. Assocs., Inc. (9th Cir. 2013) 731 F. 3d 952, 956. The Ninth Circuit then explained that “[w]e review the district court’s finding of fact under the clearly erroneous standard, meaning we will reverse them only if they are (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the record.” Id.
Turning to an evaluation of the district court’s ruling, the Ninth Circuit then affirmed the denial of a preliminary injunction. It found that Mr. Creech had not made a clear showing of the likelihood of success on the merits of his claims.
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