Towery v. Brewer

For an injunction halting an execution to be granted based on Eighth and Fourteenth Amendment violations, a plaintiff must show that the execution protocol was likely to subject the plaintiff to cruel and unusual punishment, and that the protocol would result in disparate treatment in which the plaintiff was treated differently and detrimentally.

Plaintiffs filed suit in district court challenging the Arizona Department of Corrections' (“ADC”) execution protocol as violating the Eighth and Fourteenth Amendments. Plaintiffs alleged that changes made to the protocol originally adopted in 2007 eliminated safeguards and allowed arbitrary and disparate treatment of death row inmates by the Director of the ADC. The district court denied the motion, holding that Plaintiffs had not established a likelihood of success on the merits because the updated protocol did not create a substantial risk of pain. The district court also held that Plaintiffs’ due process rights were not violated because each individual plaintiff was a “class of one” and therefore the changes to the protocol could not violate their equal protection rights. On appeal, Plaintiffs challenged the denial of the preliminary injunction based on the unconstitutionality of the updated protocol, disparate treatment, and restrictions on personal contact with the inmate’s attorney. At the hearing, the State agreed to alter the new protocol to bring it into compliance with the previously approved protocol, including providing adequately trained personnel, having backup drugs ready, and allowing Plaintiffs expanded access to counsel. The Court held that under the amended protocol, Plaintiffs had not established a likelihood of success with their Eighth Amendment challenge. As for the due process challenge, the Court held that it was rational for the State to empower the Director with the discretion to make decisions regarding how the execution is carried out as long as the Director does not treat one individual differently and detrimentally. AFFIRMED.