No. 19A615

In the Supreme Court of the United States
IN THE MATTER OF THE FEDERAL BUREAU
OF PRISONS’ EXECUTION PROTOCOL CASES

WILLIAM BARR, ET AL.,
v.

Applicants,

JAMES H. ROANE, JR., ET AL.,
Respondents.
On Application for Stay Pending Appeal to the United States Court of
Appeals for the District of Columbia
MOTION FOR LEAVE TO FILE AND BRIEF FOR THE STATES OF
ARIZONA, ALABAMA, ARKANSAS, GEORGIA, IDAHO, INDIANA, KANSAS,
LOUISIANA, MISSOURI, NEBRASKA, OHIO, SOUTH CAROLINA, TEXAS,
AND UTAH AS AMICI CURIAE IN SUPPORT OF APPLICANTS
M ARK B RNOVICH
Arizona Attorney General
JOSEPH A. KANEFIELD
Chief Deputy & Chief of Staff
BRUNN W. ROYSDEN III
Division Chief
ORAMEL H. (O.H.) SKINNER
Solicitor General

R USTY D. C RANDELL
Deputy Solicitor General
Counsel of Record
L ACEY S TOVER G ARD
Chief of Capital Litigation
A NTHONY R. N APOLITANO
O FFICE OF THE A RIZONA
A TTORNEY G ENERAL
2005 N. Central Ave.
Phoenix, AZ 85004
(602) 542-8540
rusty.crandell@azag.gov

Counsel for Amici Curiae
(Additional counsel listed at end of brief)

 TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iii
MOTION FOR LEAVE TO FILE ................................................................................. vi
INTEREST OF AMICI CURIAE ................................................................................... 1
SUMMARY OF ARGUMENTS ..................................................................................... 2
ARGUMENT .................................................................................................................. 3
I.

States Have Already Effectively Implemented A One-Drug Execution
Protocol With Pentobarbital ............................................................................... 3

II. The Important Interest of “Finality” Favors Granting The Application ........... 7
A.

Delay Compounds Harm To Victims...................................................... 8

B.

Delay Undermines States’ Interests In Enforcing The Law ............... 10

C.

The 2019 Protocol Helps Protect Confidential State Information ...... 13

CONCLUSION............................................................................................................. 16

ii

 TABLE OF AUTHORITIES
CASES
Baze v. Rees,
553 U.S. 35 (2008) ........................................................................................ 3, 4, 5, 13
Beaty v. Brewer,
791 F. Supp. 2d 678 (D. Ariz. 2011)........................................................................... 4
Bucklew v. Precythe,
139 S. Ct. 1112 (2019) ...................................................................................... passim
Calderon v. Thompson,
523 U.S. 538, 539 (1998) ............................................................................................ 9
City of Phoenix v. Geyler,
144 Ariz. 323 (1985) ................................................................................................. 11
First Amendment Coal. v. Ryan,
938 F.3d 1069 (9th Cir. 2019) .................................................................................. 14
First Amendment Coal., et. al v. Ryan,
188 F. Supp. 3d 940 (D. Ariz. 2016)........................................................................... 5
Glossip v. Gross,
135 S. Ct. 2726 (2015) .................................................................................. 3, 4, 5, 13
Grayson v. Dunn,
218 F. Supp. 3d 1321 (M.D. Ala. 2016) ..................................................................... 5
Guardian News & Media LLC v. Ryan, No. CV-14-02363-PHX-GMS, 2017 WL
4180324 (D. Ariz. Sept. 21, 2017) ...................................................................... 14, 15
Jackson v. Danberg,
656 F.3d 157 (3d Cir. 2011)........................................................................................ 5
Owens v. Hill,
758 S.E.2d 794 (Ga. 2014)........................................................................................ 13
State v. Granados,
172 Ariz. 405 (Ct. App. 1991)................................................................................... 11
State v. Towery,
204 Ariz. 386 (2003) ................................................................................................. 10
iii

 State v. Waldrip,
111 Ariz. 516 (1975) ................................................................................................. 11
Teague v. Lane,
489 U.S. 288 (1989) .................................................................................................. 11
West v. Schofield,
519 S.W.3d 550 (Tenn. 2017) ..................................................................................... 5
Wood et al v. Ryan, No. 2:14CV01447, Dkt. # 97 (D. Ariz. Jan. 29, 2016) .................. 6
Wood v. Collier
836 F.3d 534 (5th Cir. 2016) .................................................................................. 4, 6
Zink v. Lombardi,
783 F.3d 1089 (8th Cir. 2015) .................................................................................. 13
CONSTITUTIONAL PROVISIONS
Ala. Const. amend. 557 ................................................................................................ 10
Ariz. Const. art . II, § 2.1 ............................................................................................... 8
Ariz. Const. art. II, § 2.1 .............................................................................................. 10
Ariz. Const. art. II, § 2.1(A)(10)................................................................................... 10
Ariz. Const. art. II, § 2.1(A)(11)................................................................................... 11
Ariz. Const. art. II, § 32 ............................................................................................... 11
Idaho Const. art. I, § 22 ............................................................................................... 10
La. Const. art. I, § 25 ................................................................................................... 10
Mo. Const. art. I, § 32 .................................................................................................. 10
Neb. Const. art. I, § 28 ................................................................................................. 10
Tex. Const. art. I, § 30 ................................................................................................. 10
Utah Const. art. I, § 28 ................................................................................................ 10
STATUTES
18 U.S.C. § 3771 ............................................................................................................. 8
iv

 Ark. Code § 16-90-1101................................................................................................ 10
OTHER AUTHORITIES
Arizona Department of Corrections, Department Order 710, Attachment D,
https://corrections.az.gov/sites/default/files/policies/700/0710_032519.pdf ............. 5
Arizona Executes 71-Year-Old Edward Schad, Its Oldest Death Row Inmate,
Guardian (Oct. 9, 2013, 5:15 PM),
https://www.theguardian.com/world/2013/oct/09/arizona-executes-schad-oldestperson-death-row ....................................................................................................... 6
Dan S. Levy, Balancing the Scales of Justice, 89 Judicature 289 (2006) .................... 9
Dr. David B. Muhlhausen, Testimony Before the Senate Judiciary Committee
(June 27, 2007) ......................................................................................................... 12
Dr. Joel H. Hammer, The Effect of Offender Punishment on Crime Victim’s
Recovery and Perceived Fairness (Equity) and Process Control, University
Microfilms International 87, Ann Arbor, MI (1989) ................................................. 9
Hashem Dezhbakhsh, Paul H. Rubin, & Joanna M. Shepherd, Does Capital
Punishment Have a Deterrent Effect? New Evidence from Postmoratorium
Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) ....................................................... 12
Heidi M. Zinzow, et al., Examining Posttraumatic Stress Symptoms in a National
Sample of Homicide Survivors: Prevalence and Comparison to Other Violence
Victims, 24 J. Trauma. Stress 743 (Dec. 2011) ......................................................... 8
Patrick McNamara, Robert Jones Executed for Six Murders, Tucson.com (Oct. 24,
2013), https://tucson.com/news/local/robert-jones-executed-for-sixmurders/article_f80ecfe9-a033-514a-bd24-2612e93c18cb.html ............................... 6
State by State Lethal Injection Protocols, Death Penalty Info. Ctr.
https://deathpenaltyinfo.org/executions/lethal-injection/state-by-state-lethalinjection-protocols ............................................................................................... 4, 5-6
Transcript of Oral Argument, Glossip v. Gross, 135 S. Ct. 2726 (2015) (No. 14–
7955) ......................................................................................................................... 14
Ulirich Orth, Secondary Victimization of Crime Victims by Criminal Proceedings,
15 Soc. Just. Res. 313 (2002) ..................................................................................... 8

v

 MOTION FOR LEAVE TO FILE
The States of Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas,
Louisiana, Missouri, Nebraska, Ohio, South Carolina, Texas, and Utah (“Amici
States”) move for leave to file a brief as amici curiae in support of the Application
for a Stay or Vacatur of the Injunction Issued by the United States District Court
for the District of Columbia; to file the enclosed brief without 10 days’ advance
notice to the parties of amici’s intent to file; and to file in unbound format on 8½by-11-inch paper. See Sup. Ct. R. 37.2(a).
1.

Statement of Movants’ Interest. On July 25, 2019, the Federal Bureau

of Prisons adopted a revised lethal injection protocol that replaced the former threedrug procedure with the use of a single drug, pentobarbital, as the lethal agent (the
“2019 Protocol”).

In a decision affirmed by the court of appeals, a District of

Columbia federal district court concluded that the 2019 Protocol likely exceeds
statutory authority and entered a preliminary injunction staying the executions of
five individuals scheduled between December 9, 2019 and January 15, 2020. As
states in which capital punishment is authorized, Amici States have a unique
perspective on the 2019 Protocol. Among the Amici States, the States of Arizona,
Georgia, Idaho, Missouri, and Texas have used pentobarbital by itself to implement
death sentences just as is set forth in the 2019 Protocol. Further, three of the
capital offenses at issue occurred in the states of Arkansas, Missouri, and Texas.
Amici States also share the federal government’s interest in finality, especially
since nearly every federal capital conviction involves a crime that occurred within a
state. Indefinitely extending the execution of lawful sentences undermines the rule
vi

 of law and compounds the harms victims have already suffered.

Amici States’

perspective on the 2019 Protocol may, therefore, “be of considerable help to the
Court.” Sup. Ct. R. 37.1.
2.

Statement Regarding Brief Form and Timing.

Given the expedited

consideration of this matter of significant national interest, Amici States
respectfully request leave to file the enclosed brief without 10 days’ advance notice
to the parties of intent to file and to file in unbound format on 8½-by-11-inch paper.
The court of appeals denied the federal government’s emergency motion for a stay
on December 2, 2019, and the application to this Court for a stay or vacatur of the
injunction was filed on December 2, 2019, with a response anticipated shortly
thereafter. This accelerated timing justifies the request to file the enclosed amicus
brief without 10 days’ advance notice to the parties of intent to file and in unbound
format.
CONCLUSION
Amici States respectfully request that the Court grant leave to file the
enclosed brief in support of the emergency application to stay.

vii

 December 3, 2019

Respectfully submitted.
/s/ Rusty D. Crandell
MARK BRNOVICH
Arizona Attorney General
JOSEPH A. KANEFIELD
Chief Deputy & Chief of Staff
BRUNN W. ROYSDEN III
Division Chief
ORAMEL H. (O.H.) SKINNER
Solicitor General
R USTY D. C RANDELL
Deputy Solicitor General
Counsel of Record
L ACEY S TOVER G ARD
Chief of Capital Litigation
A NTHONY R. N APOLITANO
O FFICE OF THE A RIZONA
A TTORNEY G ENERAL
2005 N. Central Ave.
Phoenix, AZ 85004
(602) 542-8540
rusty.crandell@azag.gov
Counsel for Amici Curiae

viii

.

 No. 19A615

In the Supreme Court of the United States
IN THE MATTER OF THE FEDERAL BUREAU
OF PRISONS’ EXECUTION PROTOCOL CASES

WILLIAM BARR, ET AL.,
v.

Applicants,

JAMES H. ROANE, JR., ET AL.,
Respondents.
On Application for Stay Pending Appeal to the United States Court of
Appeals for the District of Columbia
BRIEF FOR THE STATES OF ARIZONA, ALABAMA, ARKANSAS,
GEORGIA IDAHO, INDIANA, KANSAS, LOUISIANA, MISSOURI,
NEBRASKA, OHIO, SOUTH CAROLINA, TEXAS, AND UTAH AS AMICI
CURIAE IN SUPPORT OF APPLICANTS

INTEREST OF AMICI CURIAE
Amici curiae, the States of Arizona, Alabama, Arkansas, Georgia, Idaho,
Indiana, Kansas, Louisiana, Missouri, Nebraska, Ohio, South Carolina, Texas, and
Utah (“Amici States”) file this brief in support of the Application for a Stay or
Vacatur of the Injunction Issued by the United States District Court for the District

1

 of Columbia. 1 On July 25, 2019, the Federal Bureau of Prisons adopted a revised
lethal injection protocol that replaced the former three-drug procedure with the use
of a single drug, pentobarbital, as the lethal agent (the “2019 Protocol”). As states
in which capital punishment is authorized, Amici States have a unique perspective
on the 2019 Protocol. Among the Amici States, the States of Arizona, Georgia,
Idaho, Missouri, and Texas have used pentobarbital by itself to implement death
sentences just as is set forth in the 2019 Protocol. Further, three of the capital
offenses at issue occurred in the states of Arkansas, Missouri, and Texas. Amici
States also share the federal government’s interest in finality, especially since
nearly every federal capital conviction involves a crime that occurred within a state.
Indefinitely extending the execution of lawful sentences undermines the rule of law
and compounds the harms victims have already suffered. The 2019 Protocol should
not have been enjoined.
SUMMARY OF ARGUMENTS
Pentobarbital is a fast-acting barbiturate that can reliably induce and
maintain a comalike state that renders a person insensate to pain. States have
used pentobarbital as single drug lethal agent in executions, and this use has
survived multiple Eighth Amendment challenges, including in this Court. See, e.g.,
Bucklew v. Precythe, 139 S. Ct. 1112 (2019).

Amici States’ experience and this

Court’s previous approval of the use of pentobarbital support the federal
government’s adoption of the 2019 Protocol.
Amici States were unable to give ten days’ advance notice of intent to file this
brief, as noted in the accompanying motion for leave to file. See Sup. Ct. R. 37.2(a).

1

2

 Allowing the injunction of the 2019 Protocol to stand undermines States’
interest in the finality of lawful capital sentences. Finality in criminal sentences is
essential to promote the rule of law and to protect victims of capital offenses from
further harm. The injunction would allow an excessive delay that undermines these
legitimate interests and should not be allowed to stand. Further, making federal
executions contingent on the use of state processes consumes limited state resources
and puts at risk the confidentiality of state suppliers.
ARGUMENT
I.

States Have Already Effectively Implemented A One-Drug Execution
Protocol With Pentobarbital
“The Constitution allows capital punishment.” Bucklew v. Precythe, 139 S.

Ct. 1112, 1122 (2019). The Government here seeks to execute a group of inmates
using a tried-and-true protocol that does not threaten substantial pain and does not
generate an Eighth Amendment concern. The district court, however, stayed the
inmates’ executions merely because, in its view, the Department of Justice had
erred procedurally by adopting a universal federal protocol.

But because the

inmates themselves face no constitutional harm, the balance of equities favors
allowing Respondents’ executions to proceed as scheduled.
This Court is well-aware of the difficulties states have encountered in
conducting lethal-injection executions, having decided three major method-ofexecution cases in the past 11 years. See Bucklew, 139 S. Ct. at 1134; Glossip v.
Gross, 135 S. Ct. 2726 (2015); Baze v. Rees, 553 U.S. 35 (2008). For years, lethalinjection executions were generally accomplished through sequential administration
3

 of three separate drugs: sodium thiopental (a fast-acting barbiturate), pancuronium
bromide (a paralytic), and potassium chloride (a drug that induces cardiac arrest).
Baze, 553 U.S. at 44. But anti-death penalty advocates successfully pressured the
only domestic manufacturer of sodium thiopental to stop selling that drug for use in
lethal injections.

Glossip, 135 S. Ct. at 2733.

As a result, states turned to

pentobarbital—another fast-acting barbiturate that can “reliably induce and
maintain a comalike state that renders a person insensate to pain”—as the first
drug in the three-drug combination.

Id. (quotations omitted); see also Beaty v.

Brewer, 791 F. Supp. 2d 678, 683 (D. Ariz. 2011). Eventually, several states moved
toward single-drug protocols involving administration of a fatal dose of
pentobarbital.

See Bucklew, 139 S. Ct. at 1120.

In addition to the federal

Government, nine states, including Arizona, authorize executions to be carried out
using this protocol. See State by State Lethal Injection Protocols, Death Penalty
Info.

Ctr.

https://deathpenaltyinfo.org/executions/lethal-injection/state-by-state-

lethal-injection-protocols (last visited Dec. 2, 2019).
There is little room to dispute pentobarbital’s efficacy. In fact, just last term,
this Court affirmed the grant of summary judgment against an inmate challenging,
on Eighth Amendment grounds, his planned single-drug pentobarbital execution.
See Bucklew, 139 S. Ct. at 1134. Other courts have likewise observed the success of
using pentobarbital as a single execution drug. See Wood v. Collier, 836 F.3d 534,
540 & n.25 (5th Cir. 2016) (discussing historical success of one-drug protocol
involving pentobarbital).

4

 Perhaps more tellingly, death-row inmates across the country have identified
a single-drug pentobarbital protocol as preferable to other methods.

See Glossip,

135 S. Ct. at 2737 (proposing use of single-drug protocol using pentobarbital instead
of three-drug protocol involving midazolam); Baze, 553 U.S. at 56–58 (proposing
that Kentucky adopt one-drug protocol rather than three-drug protocol); Jackson v.
Danberg, 656 F.3d 157, 165 & n.9 (3d Cir. 2011) (arguing that one-drug protocol
carries less comparative risk than three-drug protocol); Grayson v. Dunn, 218 F.
Supp. 3d 1321, 1325–26 (M.D. Ala. 2016) (proposing one-drug protocol involving
pentobarbital as alternative to three-drug protocol involving midazolam); West v.
Schofield, 519 S.W.3d 550, 562 (Tenn. 2017) (noting agreement between testifying
experts that single-drug protocol using 5g of pentobarbital “will likely cause death
with minimal pain and with quick loss of consciousness”); see also First Amendment
Coal., et. al v. Ryan, 188 F. Supp. 3d 940, 950–51 (D. Ariz. 2016) (plaintiffs proposed
using pentobarbital as alternative to midazolam).
Arizona’s lethal-injection protocol (hereinafter “Department Order 710”),
authorizes two single-drug protocols:

one using pentobarbital (which is the

preferred choice), and one using sodium thiopental (which may be used if
pentobarbital cannot be acquired).
Department

Order

See Arizona Department of Corrections,

710,

Attachment

D,

https://corrections.az.gov/sites/default/files/policies/700/0710_032519.pdf

2,
(last

visited Nov. 26, 2019). Between February 2012 and October 2013, Arizona executed
eight inmates using pentobarbital as a single drug.

5

See State by State Lethal

 Injection Protocols, https://deathpenaltyinfo.org/executions/lethal-injection/state-bystate-lethal-injection-protocols. With the exception of one execution, the facts of
which are disputed, the one-drug pentobarbital executions proceeded uneventfully,
with the inmates suffering no apparent ill effects from the drug itself. See Wood et
al v. Ryan, No. 2:14CV01447, Dkt. # 97, 30 ¶91 (D. Ariz. Jan. 29, 2016) (chart
prepared by inmate and media plaintiffs summarizing Arizona injections with onedrug protocol).
For example, Edward Schad, executed for killing Lorimer Grove in Prescott
in 1978, died only 9 minutes after the injection began.

Id.

One media outlet

reported that Schad “lay quietly and looked at the ceiling” as the drug flowed.
Arizona Executes 71-Year-Old Edward Schad, Its Oldest Death Row Inmate,
Guardian

(Oct.

9,

2013,

5:15

PM),

https://www.theguardian.com/world/2013/oct/09/arizona-executes-schad-oldestperson-death-row. Likewise, Robert Jones, executed for killing six Tucson residents
during an armed-robbery spree, “appeared to fall peacefully asleep” after the
pentobarbital was injected.

Patrick McNamara, Robert Jones Executed for Six

Murders, Tucson.com (Oct. 24, 2013), https://tucson.com/news/local/robert-jonesexecuted-for-six-murders/article_f80ecfe9-a033-514a-bd24-2612e93c18cb.html.
Arizona’s experience is not unique. See Wood, 836 F.3d at 540 & n.25 (“[A]t least
thirty-two executions in Texas have utilized the single-drug compounded
pentobarbital protocol without incident.”).

6

 The experience of Amici States in implementing the death penalty in the face
of limited resources also demonstrates another point.

It is not reasonable to

interpret federal law as requiring states to share limited resources to effectuate the
federal death penalty. Each state employs unique processes for obtaining lethal
agents and in implementing the death penalty. Yet, the district court’s decision
drags states into assisting with the implementation of the federal death penalty.
Such an interpretation is as unreasonable as it is impractical.
Thus, the prior experience of states demonstrates that the one-drug execution
protocol using pentobarbital set forth in the 2019 Protocol has been and can be used
effectively as a lethal agent. The 2019 Protocol builds on the experience of states in
effectively using pentobarbital as a lethal agent without requiring the federal
government to commandeer scarce state resources.
II.

The Important
Application

Interest

of

“Finality”

Favors

Granting

The

“Both the State and the victims of crime have an important interest in the
timely enforcement of a sentence.” Bucklew, 139 S. Ct. at 1133 (2019) (quoting Hill
v. McDonough, 547 U.S. 573, 584 (2006)). This Court has declared that the people
of the state in which a crime occurred, the victims of that crime, “and others like
them deserve better” than the “excessive” “delays that now typically occur between
the time an offender is sentenced to death and his execution.” Id. at 1134, 1144
(quotations omitted).

The challenges brought in this matter are no different—

attempts to delay ad inifitum the lawful sentence chosen twice by the people, first

7

 through enactment as law by their representatives and second by the jury in each
death row convict’s case.
A.

Delay Compounds Harm To Victims

Congress codified the right of crime victims to “proceedings free from
unreasonable delay” and to “be treated … with respect for [their] dignity” in the
federal Crime Victims’ Rights Act, 18 U.S.C. § 3771.

And where the victim is

deceased, “the crime victim’s estate [or] family members … may assume the crime
victim’s rights”—recognizing that, as here, surviving family members are also
victims of the murderer. 18 U.S.C. § 3771(e). The rights of victims have also been
recognized in states across the country. See, e.g., Ariz. Const. art. II, § 2.1(victims’
bill of rights). These rights are assaulted each time proceedings are delayed or the
finality of judgments is jeopardized, leading to secondary victimization that
exacerbates the wounds of the initial criminal act.

Ulirich Orth, Secondary

Victimization of Crime Victims by Criminal Proceedings, 15 Soc. Just. Res. 313, 321
(2002) (secondary victimization can be more harmful than the crime itself).
The murder of a loved one can cause post-traumatic stress disorder (PTSD)
for the survivor at up to twice the rate for that of victims of other types of trauma.
Heidi M. Zinzow, et al., Examining Posttraumatic Stress Symptoms in a National
Sample of Homicide Survivors: Prevalence and Comparison to Other Violence
Victims, 24 J. Trauma. Stress 743, 744 (Dec. 2011). Healing can be prevented and
PTSD or other pain aggravated by a victim’s experience with the criminal justice
system, especially where delays and other difficulties in achieving finality give
victims the perception that the offender is going unpunished. Dr. Joel H. Hammer,
8

 The Effect of Offender Punishment on Crime Victim’s Recovery and Perceived
Fairness (Equity) and Process Control, University Microfilms International 87, Ann
Arbor, MI (1989) (victim recovery generally improves with the perception of
punishment of the offender).

Repeated appeals and delays that jeopardize the

finality and completion of the sentence in a death penalty case have devastating
effects on the surviving family members, who must relive the murder of their loved
one with each new proceeding. Dan S. Levy, Balancing the Scales of Justice, 89
Judicature 289, 290 (2006).
The harms inflicted on victims through delay has been repeatedly recognized
in the law. “Only with an assurance of real finality can the State execute its moral
judgment and can victims of crime move forward knowing the moral judgment will
be carried out.”

Calderon v. Thompson, 523 U.S. 538, 539 (1998). “Unsettling

these expectations inflicts a profound injury to the ‘powerful and legitimate interest
in punishing the guilty,’ … an interest shared by the State and crime victims alike.”
Id. (quoting Herrera v. Collins, 506 U.S. 390, 421 (1993) (O'Connor, J., concurring)).
The lengthening of these federal proceedings and delay in the final implementation
of the sentence creates recognizable pain in victims and postpones their own ability
to heal their wounds—closure for victims being inextricably linked with finality in
sentencing and judgment. Id. at 556.
Thus finality is critical for victims’ own wellbeing and impacts the rights
crime victims have under federal and state law.

9

 B.

Delay Undermines States’ Interests In Enforcing The Law

States have an interest in carrying out lawful sentences, which foster respect
for the rule of law and help protect the well-being of citizens who have been
victimized by criminal offenders.

The majority of States have adopted a crime

victims’ rights act or amendment to their respective constitutions, underscoring
their commitment to and important interest in ensuring victims’ rights to
timeliness in the completion of proceedings, including enforcement of the sentence. 2
These protections add to the independent, compelling interest States have in the
finality of their judgments as sovereign entities. This interest in finality is put in
jeopardy through cases, such as the underlying case, in which never-ending appeals
are allowed to thwart lawfully imposed and final judgments.
States have expressed their commitment to victims’ rights and worked to
guard the finality of sentences through their constitutions, laws, and court
decisions. For example, “Arizona courts are especially concerned with the finality of
criminal cases because the Arizona Constitution requires courts to protect the
rights of victims of crime by ensuring a ‘prompt and final conclusion of the case
after the conviction and sentence.’” State v. Towery, 204 Ariz. 386, 391, ¶ 14 (2003)
(quoting Ariz. Const. art. II, § 2.1(A)(10)).

Further, the Arizona Constitution

Amici States have adopted constitutional amendments or laws protecting crime
victims’ rights, most including an express right to timely resolution of the case. See,
e.g., Ariz. Const. art. II, § 2.1 (“prompt and final conclusion of the case after the
conviction and sentence”); Ala. Const. amend. 557; Ark. Code § 16-90-1101, et. seq.;
Idaho Const. art. I, § 22 (“timely disposition of the case”); La. Const. art. I, § 25
(“reasonably prompt conclusion of the case.”); Mo. Const. art. I, § 32 (“speedy
disposition and appellate review”); Neb. Const. art. I, § 28; Tex. Const. art. I, § 30;
Utah Const. art. I, § 28.
2

10

 requires that “all rules governing criminal procedure . . . in all criminal proceedings
protect victims’ rights” and the legislature is empowered to ensure this goal is met.
Id. at § 2.1(A)(11). These provisions are mandatory. See id. at § 32. And Arizona
courts recognize the State’s independent interest in finality.

See, e.g., City of

Phoenix v. Geyler, 144 Ariz. 323, 328 (1985) (“there is a ‘compelling interest in the
finality of judgments’ which should not lightly be disregarded”) (citation omitted);
State v. Granados, 172 Ariz. 405, 407 (Ct. App. 1991) (“finality, as a general matter,
is desirable in criminal prosecutions”); State v. Waldrip, 111 Ariz. 516, 518 (1975)
(the “function of courts is to put an end to litigation”).
Indeed, the carrying out of criminal sentences is a cornerstone of the justice
system upon which States rely. This Court has recently reiterated its commitment
to finality with its admonishment that “[t]he proper role of courts is to ensure that
method-of-execution challenges to lawfully issued sentences are resolved fairly and
expeditiously.

Courts should police carefully against attempts to use such

challenges as tools to interpose unjustified delay.” Bucklew, 139 S. Ct. at 1134.
This is nothing new. In Teague v. Lane, this Court expressed its agreement with
Justice Harlan’s previous assessment on habeas review, quoting his statement that
“[t]he interest in leaving concluded litigation in a state of repose … may quite
legitimately be found … to outweigh in some, many, or most instances the
competing interest in readjudicating convictions according to all legal standards in
effect ….” Teague v. Lane, 489 U.S. 288, 306 (1989) (quoting Mackey v. United
States, 401 U.S. 667, 682–83 (1971)).

11

 As the majority of violent federal crimes occur within one or more states, the
States and their citizens have a direct interest in seeing that the deterrence
function of the criminal law is given effect, and this necessarily means that
criminals must believe in the reality of their punishment. The compelling interest
each state has in carrying out its own criminal sentences is undermined in the
arena of capital crimes where challenges to execution protocols teamed with
extrajudicial efforts to make approved lethal injection drugs unavailable make
executions a near legal impossibility. This leads to disrespect for the rule of law,
which may in turn lead to an increase in violence in response to the diminishing
potential for fitting punishment. “Numerous studies published over the past few
years, using panel data sets and sophisticated social science techniques, are
demonstrating that the death penalty saves lives,” including an Emory University
study finding “that each execution, on average, results in 18 fewer murders.” Dr.
David B. Muhlhausen, Testimony Before the Senate Judiciary Committee (June 27,
2007); Hashem Dezhbakhsh, Paul H. Rubin, & Joanna M. Shepherd, Does Capital
Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel
Data, 5 Am. L. & Econ. Rev. 344-376 (2003). But this deterrent effect requires that
would-be murderers believe their execution would actually be carried out.
The injunction issued below undermines the government’s interest in finality
and promotes litigation aimed at ensuring that lawful death sentences are never
actually carried out.

Death row inmates should not be allowed to hijack court

processes to undermine finality through “never-ending litigation” over the

12

 adequacy—or any other technical complaint they may come up with— “of [state or
federal] execution procedures.” Baze, 553 U.S. at 105 (Thomas, J., concurring). The
impact of such actions is not limited to the jurisdiction in which they arise but,
rather, of nationwide importance.

The States’ interests in enforcing their own

sentences, protecting their citizens, and maintaining confidence in the integrity of
the legal system—and its consequences—support the United States’ position and
must not fall victim to Respondents’ litigation filibuster.
C.

The 2019 Protocol
Information

Helps

Protect

Confidential

State

The district court’s decision also undermines Amici States’ interest in finality
in another way. While lethal-injection drugs were once easy for states to obtain,
they are now scarce, as suppliers have succumbed to economic pressure and
harassment from anti-death penalty activists. See Glossip, 135 S. Ct. at 2733–34.
Without the assurance of confidentiality, “there is a significant risk that persons
and entities necessary to the execution would become unwilling to participate.”
Owens v. Hill, 758 S.E.2d 794, 805 (Ga. 2014). This is the very goal of condemned
inmates who seek to compel disclosure of this information. See Zink v. Lombardi,
783 F.3d 1089, 1106 (8th Cir. 2015) (“In this capital litigation, it should be
remembered that one stated objective of the prisoners’ lawsuit is to pressure the
State’s suppliers and agents to discontinue providing the drugs and other assistance
necessary to carry out lawful capital sentences.”). Put simply, public disclosure of
lethal-injection suppliers chills others from participating and facilitates the
escalating “guerilla war against the death penalty.” Transcript of Oral Argument at
13

 14:20–25, Glossip v. Gross, 135 S. Ct. 2726 (2015) (No. 14–7955) (question of Alito,
J.).
Amici States are all all-too-familiar with the need for confidentiality. For
example, the Arizona Department of Corrections (ADC) has successfully resisted
two First-Amendment-based media challenges to Arizona’s confidentiality statute,
A.R.S. § 13–757(C). See First Amendment Coal. v. Ryan, 938 F.3d 1069, 1080 (9th
Cir. 2019); Guardian News & Media LLC v. Ryan, No. CV-14-02363-PHX-GMS,
2017 WL 4180324, at *7–8 (D. Ariz. Sept. 21, 2017). One of these cases, Guardian
News, proceeded to trial, at which ADC presented evidence that it has been unable
to acquire lethal-injection drugs in recent years, in large part because suppliers
perceive the risk of disclosure—and the retaliation that comes with it—to be
unacceptable. The district court made the following factual findings:
It has become increasingly difficult for the state to
purchase lethal injection drugs. During the last ten years
in which Carson McWilliams, the ADC Director in charge
of prison operations, has been tasked with procuring
lethal injection drugs, he has found fewer and fewer
producers willing to sell such drugs to the state. He
believes that this is due to campaigns to discourage
manufacturers from selling such drugs. He has, however,
spoken with at least one potential drug supplier that was
willing to provide lethal injection drugs to Arizona so long
as its identity was kept confidential. He believes it will
become much more difficult to obtain lethal injection
drugs if the identity of the supplier becomes known, and
currently he knows of no one in the United States who
will sell lethal injection drugs to the state.
He has also been provided by at least one
compounding pharmacy what appeared to be a massproduced letter threatening the future viability of the

14

 pharmacy if it was discovered that the pharmacy provided
lethal injection drugs to the state of Arizona.
Guardian News & Media LLC, No. CV-14-02363-PHX-GMS, 2017 WL 4180324, at
*7–8. Ruling in ADC’s favor, the court concluded that disclosing the identities of
drug suppliers would hinder the State’s ability to carry out lethal injection:
Capital punishment is not unconstitutional. The
legislature of Arizona has chosen to authorize it in the
form of lethal injection. The State presented evidence that
the opposition to capital punishment by a substantial
portion of the public presents risks not only to those
involved in the process, but to the State’s ability to carry
it out entirely. Carson McWilliams testified that no
manufacturing sources will now sell execution drugs to
the state, and he further testified of being shown an
anonymous threat to a potential compounding pharmacy,
threatening to ruin that pharmacy’s business if the
pharmacy did business with ADC. The phenomenon of
opponents of capital punishment using threats of boycotts
to discourage drug producers to provide capital
punishment drugs has been widely noted. Such activism
is, of course, itself entitled to First Amendment
protection. Nevertheless, it negatively affects the
functioning of the execution process. Indeed, the process
of capital punishment—a constitutional punishment that
the State has chosen to impose—might not function at all
if anti-death penalty activists are successful in
discouraging suppliers from providing drugs to the State.
Id. at *12 (citations omitted).
Accordingly, disclosure of a supplier’s identity affects not only the particular
supplier at issue, but also the death penalty’s very functioning. Because of the
demonstrable harm disclosure brings to States in which capital punishment is legal,
rare and valuable lethal-injection suppliers should be protected at all costs. Federal
law should not be interpreted to require states to put this information at risk.

15

 CONCLUSION
The Court should grant Applicants’ application for stay or vacatur of the
injunction.
December 3, 2019

Respectfully submitted.
/s/ Rusty D. Crandell
.
MARK BRNOVICH
Arizona Attorney General
JOSEPH A. KANEFIELD
Chief Deputy & Chief of Staff
BRUNN W. ROYSDEN III
Division Chief
ORAMEL H. (O.H.) SKINNER
Solicitor General
R USTY D. C RANDELL
Deputy Solicitor General
Counsel of Record
L ACEY S TOVER G ARD
Chief of Capital Litigation
A NTHONY R. N APOLITANO
O FFICE OF THE A RIZONA
A TTORNEY G ENERAL
2005 N. Central Ave.
Phoenix, AZ 85004
(602) 542-8540
rusty.crandell@azag.gov
Counsel for Amici Curiae

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 Additional Counsel
STEVE MARSHALL
Attorney General of Alabama
LESLIE RUTLEDGE
Attorney General of Arkansas
CHRISTOPHER M. CARR
Attorney General of Georgia
LAWRENCE G. WASDEN
Attorney General of Idaho
CURTIS T. HILL, JR.
Attorney General of Indiana
DEREK SCHMIDT
Attorney General of Kansas
JEFF LANDRY
Attorney General of Louisiana
ERIC S. SCHMITT
Attorney General of Missouri
DOUGLAS J. PETERSON
Attorney General of Nebraska
DAVE YOST
Attorney General of Ohio
ALAN WILSON
Attorney General of South Carolina
KEN PAXTON
Attorney General of Texas
SEAN D. REYES
Attorney General of Utah

17