In re Lombardi: A Change in Lethal Injection Procedure

James B. Bickerton
58 St. Louis U. L.J. Online 43 | PDF


Capital punishment is a polarizing issue that elicits strong emotions from each side of the argument. The dispute of whether the State should execute its citizens has been raging for decades, but recently another question has presented itself: How should the State carry out lethal injection? States continuously look for alternative lethal [L1] injection drugs once supplies are depleted, but what happens when states are forced to utilize a new drug in executions? In re Lombardi helped clarify this question. Specifically, the Eighth Circuit was tasked with deciding whether prisoners waiting execution could receive information, through discovery, about a new anesthetic used in Missouri’s lethal injections. In a divisive opinion, the Eighth Circuit found that prisoners waiting execution may not be entitled to this information so easily.

I. History

Through 2010, Missouri used a cocktail of three drugs in carrying out lethal injections: “sodium thiopental to anesthetize the prisoner and render him unconscious, pancuronium bromide to paralyze him and stop his breathing, and potassium chloride to stop the prisoner’s heart.”[1] Missouri exhausted its supply of sodium thiopental, and attempts to find additional supplies proved difficult since there were no domestic manufacturers of the drug.[2] Moreover, the Food and Drug Administration had not approved the importation of sodium thiopental, and the European Union enacted regulations prohibiting exportation of the drug to countries that have the death penalty.[3]

Under Missouri law, the Director of the Missouri Department of Corrections (“Director”) selects the drugs used in lethal injection.[4] After some debate on a replacement,[5] the Director decided to use pentobarbital supplied by a compounding pharmacy.[6] In response to the change in lethal injection procedure, several Missouri inmates awaiting execution (“Plaintiffs”) brought suit claiming that the use of compounding pentobarbital was unconstitutional.[7] The district court ordered the Director to disclose the identities of the doctor who prescribes the pentobarbital, the compounding pharmacy, and the laboratory that inspected the chemical (“Parties”).[8] The Eighth Circuit granted the Director’s petition en banc[9] to decide whether to grant a writ of mandamus to stop the enforcement of the district court’s discovery orders.[10]

II. Analysis

A.            The Court’s Analysis

The Eighth Circuit explained that writs of mandamus are “useful safety valves for promptly correcting serious errors,”[11] but it cautioned that “only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion” will justify the invocation of the extraordinary remedy of mandamus.”[12] To satisfy the test for a writ of mandamus, a petitioner must: (1) show that there are no other adequate means to obtain the desired relief; and (2) have a “clear and undisputable” entitlement to the writ.[13] If both elements of the test are satisfied, the issuing court has additional discretion on whether it is satisfied that the writ is appropriate under the circumstances.[14] After establishing this test, the court examined the Director’s arguments in favor of the writ of mandamus.

The Director’s main arguments in favor of the writ were that no other adequate means were available to obtain the requested relief and that the information was privileged because the Parties were named as members of the execution team.[15] The Eighth Circuit, however, decided not to express a view on the “significant and complex” privilege issues.[16] Instead, the court concluded that it was “clear and indisputable” that there were no other adequate means for the Director to achieve his requested relief, and the court also held that the district court should have dismissed the Plaintiffs’ complaint for failure to state a claim, which means the discovery orders were irrelevant.[17] The court proceeded to grant the Director’s writ of mandamus.[18]

The primary reason the court believed Plaintiffs’ claim should be dismissed involved the Eighth Amendment claim. The court began its analysis by stating, “[C]apital punishment is constitutional. It necessarily follows that there must be a means of carrying it out.”[19] Therefore, a successful claim under the Eighth Amendment cannot allege all methods of execution are unconstitutional.[20] Here, Plaintiffs argued the use of compounded pentobarbital violated the Eighth Amendment’s prohibition against cruel and unusual punishment by exposing prisoners to a risk of “substantial pain.”[21]

The court’s issue with this argument is that Plaintiffs failed to either plead that the current lethal[L2]  injection protocol is “substantial” when compared to other alternatives or otherwise proffer alternatives that are more humane.[22] The Eighth Circuit, relying on Chief Justice Roberts’ plurality opinion in Baze v. Reese, noted that an Eighth Amendment argument must show either a “plausible allegation of a feasible and more humane alternative method of execution […] or a purposeful design by the State to inflict unnecessary pain.”[23] The court also cited Justice Alito[24] and Justice Thomas’[25] concurring opinions as support for this pleading requirement, as well as opinions in the Fifth[26] and Sixth[27] Circuits that required plaintiffs to plead a feasible alternative method for execution. After applying the pleading standard set forth in Baze, the court held that Plaintiffs could not bring a successful claim under the Eighth Amendment, or the corresponding amendment in the Missouri Constitution, because a viable alternative was not proffered.[28]

Plaintiffs advanced other arguments challenging the granting of the writ, but the court dismissed the arguments rather precipitously as inapplicable[29] or irrelevant.[30] While mentioned in the opinion, these arguments were not essential to the court’s reasoning that the district court erred by not dismissing Plaintiffs’ claim. For this reason, these issues are not analyzed in this summary.

B.            Author’s Analysis

In its opinion, the court spent time defining the test for whether issuing a writ of mandamus is proper, but it did not spend much effort applying the facts of the case to the test. The first element of the test, showing there are no other means to satisfy the desired relief, appeared to be satisfied by the Director. Providing Plaintiffs with the Parties’ information would have been incredibly damaging to capital punishment in Missouri. The harm would not have resulted from an unfavorable ruling by the district court but instead from the Plaintiffs resulting actions upon obtaining the information. As briefly mentioned in the opinion, Plaintiffs would assuredly investigate the Parties, which could result in the physician, pharmacy, or laboratory refusing to cooperate with Missouri in administering lethal injection. Compounding pharmacies that produce drugs used in lethal injections have already stopped supplying other states once their identity became public due to the public firestorm that resulted.[31] Even if the district court eventually ruled in favor of the Director, Missouri could still face potential problems carrying out its executions. Assuming the compounding pharmacy declined to supply Missouri with the drugs due to public pressure, there would be no way to carry out executions in Missouri until it procured a different anesthetic supplier. Moreover, similar litigation would have been initiated once Missouri found a different pharmacy to produce pentobarbital or similar anesthetic. For the foregoing reasons, I believe the court was correct in deciding the Director had no means other than a writ of mandamus to achieve his desired relief.

The second element of the writ of mandamus test is whether the Director had a clear and indisputable entitlement to the writ, usually resulting from “judicial usurpation of power or a clear abuse of discretion.”[32] The Eighth Circuit found a clear abuse of discretion by the district court for not dismissing Plaintiffs’ claim after they failed to plead “a feasible and more humane alternative method of execution […] or a purposeful design by the State to inflict unnecessary pain.”[33] The court cited Chief Justice Roberts’ plurality opinion in Baze v. Rees for justifying this heightened pleading requirement by Plaintiffs.[34] This reliance made analyzing the second element of the test considerably more difficult than the first since it is not binding precedent. The dissent in Lombardi frames the primary, countervailing argument well. A year after Baze, the Eighth Circuit decided Clemons,[35] which did not require the plaintiff to propose an alternative method of execution.[36] While there is some merit to the dissent’s argument that Clemons should be followed, the majority’s analysis was still correct.

The majority’s pleading requirement was different from what it established in Clemons,[37] but the court still cited Baze as authority in defining the rule for its pleading requirement.[38] Additionally, the facts in Clemons are distinguishable from Lombardi. The plaintiffs in Clemons argued that incompetent members of Missouri’s execution team would not follow procedures, which would result in prisoners suffering a substantial risk of serious harm.[39] The issue there was following current protocol rather than implementing a new procedure. It follows that the plaintiffs in Clemons were, in a way, proposing a feasible alternative—making sure current procedures were followed—rather than asking the court to stay the executions because procedures may not be followed. Because the court might have felt that the plaintiffs proposed a feasible alternative, the court may not have chosen to focus on this requirement in its opinion.

Assuming arguendo that the Clemons standard should have been used in Lombardi, Plaintiffs’ complaint might have still been dismissed. The Clemons standard required Plaintiffs to show that “conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.”[40] Nowhere in the Lombardi opinion did Plaintiffs explain how compounded pentobarbital would be very likely to cause “needless suffering” or “sufficiently imminent dangers” through any experts or studies. Instead, Plaintiffs seem to argue it could cause these conditions, but they first need the Parties’ information to prove it is very likely. Clemons noted that some pain is acceptable in executions,[41] and it suggested that the very likely requirement is not easy to meet.[42] Since Plaintiffs could not prove Missouri’s protocol would very likely result in needless suffering or sufficiently imminent dangers, the complaint should have been dismissed whether the Lombardi or Clemons pleading requirement was used.

Finally, the majority’s reliance on Baze was not misplaced as the dissent argued.[43] Chief Justice Roberts stated that in order establish an Eighth Amendment claim, a prisoner “must show that the risk [of severe pain] is substantial when compared to the known and available alternatives.”[44] The concurring opinions by Justice Alito and Justice Thomas seem to echo the sentiment that Plaintiffs do need to show an available alternative. Additionally, the majority’s reference that the Fifth and Sixth Circuits have cases that require plaintiffs to proffer an alternative method of execution indicates that the Eighth Circuit’s interpretation of Baze is not novel. The dissent argues that the majority’s interpretation of Baze is “absurd” from a policy standpoint,[45] but the majority’s interpretation of Baze seems to be accurate based on the plain reading of the opinion.


The majority’s decision to grant the writ of mandamus was correct. The Director had no other means of achieving his desired relief. Any investigation by Plaintiffs, regardless of the district court’s final decision, would likely cause the compounding pharmacy to cease supplying Missouri with pentobarbital, which would cause a stay of all executions until another supplier is found. This process would continue indefinitely, halting all executions, until a pharmacy agreed to supply an anesthetic in spite of the public outrage that would likely ensue. For this reason, the Director satisfied the first element of the writ of mandamus test. Likewise, the second element of the test was satisfied because the district court clearly abused its power by granting discovery to Plaintiffs, even though they did not meet its pleading requirement of proffering an alternative means of execution. While the dissent was adamant that the majority should have followed Clemons or, alternatively, that the interpretation of Baze was incorrect, the majority’s analysis was accurate. For the foregoing reasons, the majority properly issued the Director a writ of mandamus after satisfying both elements of the test.

James B. Bickerton*

[1] In re Lombardi, 741 F.3d 888, 890 (8th Cir. 2014) (en banc).

[2] Id.

[3] Id.

[4]Id.; See Mo. Rev. Stat. § 546.720.1. (“[T]he director of the department of corrections is hereby authorized and directed to provide…the necessary appliances for carrying into execution the death penalty by means of the administration of lethal gas or by means of the administration of lethal injection.”)

[5] Id. (discussing how the Director originally decided on propanol, a widely used anesthetic, but Governor Nixon overturned the decision in fear the European Union would cease exporting the drug to the United States).

[6] Lombardi, 741 F.3d at 890.

[7] Id. at 891 (explaining how the inmates originally sued for using propanol, but the district court allowed the case to continue after Missouri changed to pentobarbital because the same controversy still exists).

[8] Id. at 892.

[9] Id.

[10] Id.

[11] Lombardi, 741 F.3d at 893 (citing Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009)).

[12] Id. (citing Cheney v. U.S. Dist. Court for D. C., 542 U.S. 367 (2004)) (internal quotations omitted).

[13] Id.

[14] Id.

[15] Id.

[16] Lombardi, 741 F.3d at 895.

[17] Id.

[18] Id.

[19] Id. (citing Baze v. Rees, 553 U.S. 35 (2008)).

[20] Id.

[21] Lombardi, 741 F.3d at 891.

[22] Id.

[23] Id.

[24] Id. (citing Baze v. Rees, 553 U.S. 35 (2008)) (Alito, J., concurring) (“[A] State’s refusal to change its method [of execution] can be viewed as ‘cruel and unusual’ under the Eighth Amendment if the State, ‘without a legitimate penological justification,’ rejects an alternative method that is ‘feasible’ and ‘readily’ available and that would ‘significantly reduce a substantial risk of severe pain’.”).

[25] Id. (citing Baze v. Rees, 553 U.S. 35 (2008)) (Thomas, J., concurring) (“As I understand it, [the plurality] opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures.”).

[26]Lombardi, 741 F.3d at 895 (referencing Raby v. Livingston, 600 F.3d 552 (5th Cir.2010)).

[27] Id. (referencing Cooey v. Strickland, 589 F.3d 210 (6th Cir.2009)).

[28] Id.

[29] Id. at 897 (stating “[w]here only the mode of producing death has changed, with no allegation of superadded punishment or superior alternatives, the Ex Post Facto Clauses are not implicated.”).

[30] Id. (dismissing Plaintiffs’ challenges that  the Director’s authority to use pentobarbital in any execution,  carry out executions during this litigation, shield the Parties by naming them members of the execution team, use a central venous line during execution, and cause prisoners anxiety as being irrelevant because information being sought is not necessary for these claims).

[31] Lombardi, 741 F.3d at 894.

[32] Id. at 893-94 (citing Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004)) (internal quotations omitted).

[33] Id. at 896.

[34] Id.

[35] Clemons v. Crawford, 585 F.3d 1119 (8th Cir. 2009).

[36] See id. at 1125.

[37] See id. at 1123-24.

[38] Id. at 1125.

[39] Id. at 1123-24.

[40] Clemons , 585 F.3d at 1125 (emphasis added).

[41] Id. (citing Baze v. Rees, 553 U.S. 35 (2008)) (“[T]he constitution does not demand the avoidance of all risk of pain in carrying out executions.”).

[42] See id. at 1125-26 (noting that the Supreme Court found that physicians with minimal experience being allowed to mix lethal-injection drugs and administer femoral IVs was not considered very likely to cause enough serious pain to justify an Eighth Amendment claim).

[43] Lombardi, 741 F.3d at 899-900 (Bye, J., dissenting).

[44] Baze v. Rees, 553 U.S. 35, 61 (2008).

[45] Lombardi, 741 F.3d at 899-900 (Bye, J., dissenting) (arguing that having inmates find an alternative to their own execution being unreasonable).

* J.D. Candidate, 2015, Saint Louis University School of Law. I would like to thank my girlfriend and my family for supporting me throughout law school. Their contributions have been immeasurable to my success.