Whether an Alabama death row inmate has shown that pentobarbital is 'available' to the Alabama Department of Corrections for use in executions

QUESTIONS PRESENTED In the district court below, petitioner adduced evidence sufficient to prove that Alabama’s three-drug lethal injection protocol, which utilizes midazolam hydrochloride as the first drug, will cause his execution to be excruciatingly painful—similar to being suffocated and burned at the stake at the same time. The district court, however, held that petitioner’s Eighth Amendment challenge failed, and that Alabama may proceed to execute petitioner using that protocol, because petitioner could not identify a compounding pharmacy willing to supply the Alabama Department of Corrections (ADOC) with pentobarbital, an alternative to midazolam that would dramatically reduce the physical pain of Petitioner’s execution. The Eleventh Circuit affirmed. Contrary to Sixth Circuit precedent, the Eleventh Circuit held that the Eighth Amendment places no “onus” on the ADOC to try to obtain pentobarbital, regardless of how much pain the midazolam protocol will cause petitioner to suffer. This petition presents the following questions: (1) Has an Alabama death row inmate shown that pentobarbital is “available” to the ADOC where he proves that pentobarbital is easily made by any compounding pharmacy, multiple states are presently able to obtain the drug for use in executions, and the ADOC failed to undertake “ordinary transactional efforts” to obtain the drug? (2) Ifa state’s lethal injection protocol will cause the inmate to experience gruesome and brutal pain, is the state entitled to proceed with the execution anyways, merely because the state cannot immediately obtain alternative drugs known to be effective in accomplishing a humane lethal injection execution? (1)