Towery v. Brewer’s Empirical Analysis

Citation profile

10 federal appellate · 3 district · 3 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 28 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[Plaintiffs] argue otherwise, relying on Bush v. Gore, 531 U.S. 98, 105 , 121 S.Ct. 525 , 148 L.Ed.2d 388 (2000). Urging that there is a distinction between state action that violates a fundamental right and state action that merely burdens a fundamental right, they proffer that the latter was sufficient to trigger strict scrutiny in Bush and should also be here. The right to vote, however, “ ‘can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’ ” Id. (quoting Reynolds v. Sims, 377 U.S. 533, 555 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964)). A prisoner’s right to be free of cruel and unusual punishment, in contrast, is not affected simply because that prisoner is treated less favorably than another, where one means of execution is no more likely to create a risk of cruel and unusual punishment than the other, and both are constitutionally available. Treating one similarly situated prisoner differently from another with regard to punishment does not inherently impact the right to be free of cruel and unusual punishment (although it might for other reasons violate the Equal Protection Clause). That is not to say that there could not be exercises of discretion that do burden the right to be free of cruel and unusual punishment. The contrast with the litigation surrounding Ohio’s lethal injection protocol, invoked by [plaintiffs] in support of their fundamental rights Equal Protect”

   2 later decisions quote this exact passage · from the majority
   e.g. In re Ohio Execution Protocol Litigation · 906 F. Supp. 2d 759 - In re Ohio Execution Protocol Litigation

2. “Even if we were to subject the protocol’s grant of discretion to the Director to rational basis review, it would survive our consideration. It is rational for ADC to conclude that the Director is best situated to select the execution team from those available who meet the criteria listed in the protocol (assuming those criteria do not themselves create a risk of harm greater than that tolerable under the Eighth Amendment), or to decide that the Director should be the one to select which of the four possible drug sequences to use, or to assign to the Director and the IV Team Leader the task of selecting which IV site to use. It is entirely rational for these determinations to be made on a case-by-case basis, as they may well depend on individualized and changing factors such as the availability of particular people to participate in the execution, the supply of drugs available to the State at a given time, and the condition of the prisoner’s veins. The Equal Protection claim, as framed here, cannot succeed on the merits.”

   2 later decisions quote this exact passage · from the majority
   e.g. In re Ohio Execution Protocol Litigation · 906 F. Supp. 2d 759 - In re Ohio Execution Protocol Litigation

3. “As we have already determined, the protocol as it will be implemented for [plaintiffs’] executions does not violate their right under the Eighth Amendment to be free from cruel and unusual punishment. Where there is no Eighth Amendment violation, the district court ruled, that necessarily means that there has been no interference with fundamental rights sufficient to trigger strict scrutiny under the Equal Protection Clause. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 , 96 S.Ct. 2562 , 49 L.Ed.2d 520 (1976). We do not need to adopt this broad proposition to conclude that given the ways the Director has chosen to exercise his discretion in the upcoming executions, there has been no showing here of any burden on the right to be free of cruel and unusual punishment.”

   2 later decisions quote this exact passage · from the majority
   e.g. In re Ohio Execution Protocol Litigation · 906 F. Supp. 2d 759 - In re Ohio Execution Protocol Litigation