SUPREME COURT OF THE UNITED STATES
_________________
No. 14–7955
_________________
RICHARD E. GLOSSIP, et al., PETITIONERS
v. KEVIN J. GROSS, et al.
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 29, 2015]
Justice Sotomayor, with whom Justice Ginsburg,
Justice Breyer, and Justice Kagan join, dissenting.
Petitioners, three inmates on Oklahoma’s
death row, challenge the constitutionality of the State’s
lethal injection protocol. The State plans to execute petitioners
using three drugs: midazolam, rocuronium bromide, and potassium
chloride. The latter two drugs are intended to paralyze the inmate
and stop his heart. But they do so in a torturous manner, causing
burning, searing pain. It is thus critical that the first drug,
midazolam, do what it is supposed to do, which is to render and
keep the inmate unconscious. Petitioners claim that midazolam
cannot be expected to perform that function, and they have
presented ample evidence showing that the State’s planned use
of this drug poses substantial, constitutionally intolerable
risks.
Nevertheless, the Court today turns aside
petitioners’ plea that they at least be allowed a stay of
execution while they seek to prove midazolam’s inadequacy.
The Court achieves this result in two ways: first, by deferring to
the District Court’s decision to credit the scientifically
unsupported and implausible testimony of a single expert witness;
and second, by faulting petitioners for failing to satisfy the
wholly novel requirement of proving the availability of an
alternative means for their own executions. On both counts the
Court errs. As a result, it leaves petitioners exposed to what may
well be the chemical equivalent of being burned at the stake.
I
A
The Eighth Amendment succinctly prohibits the
infliction of “cruel and unusual punishments.” Seven
years ago, in
Baze v.
Rees, 553 U. S. 35 (2008)
, the Court addressed the application of this mandate to
Kentucky’s lethal injection protocol. At that time, Kentucky,
like at least 29 of the 35 other States with the death penalty,
utilized a series of three drugs to perform executions: (1) sodium
thiopental, a “fast-acting barbiturate sedative that induces
a deep, comalike unconsciousness when given in the amounts used for
lethal injection”; (2) pancuronium bromide, “a
paralytic agent that inhibits all muscular-skeletal movements and
. . . stops respiration”; and (3) potassium
chloride, which “interferes with the electrical signals that
stimulate the contractions of the heart, inducing cardiac
arrest.”
Id., at 44 (plurality opinion of Roberts,
C. J.).
In
Baze, it was undisputed that absent a
“proper dose of sodium thiopental,” there would be a
“substantial, constitutionally unacceptable risk of
suffocation from the administration of pancuronium bromide and pain
from the injection of potassium chloride.”
Id., at 53.
That is because, if given to a conscious inmate, pancuronium
bromide would leave him or her asphyxiated and unable to
demonstrate “any outward sign of distress,” while
potassium chloride would cause “excruciating pain.”
Id., at 71 (Stevens, J., concurring in judgment). But the
Baze petitioners conceded that if administered as intended,
Kentucky’s method of execution would nevertheless
“result in a humane death,”
id., at 41
(plurality opinion), as the “proper administration” of
sodium thiopental “eliminates any meaningful risk that a
prisoner would experience pain from the subsequent injections of
pancuronium and potassium chloride,”
id., at 49. Based
on that premise, the Court ultimately rejected the challenge to
Kentucky’s protocol, with the plurality opinion concluding
that the State’s procedures for administering these three
drugs ensured there was no “objectively intolerable
risk” of severe pain.
Id., at 61–62 (internal
quotation marks omitted).
B
For many years, Oklahoma performed executions
using the same three drugs at issue in
Baze. After
Baze was decided, however, the primary producer of sodium
thiopental refused to continue permitting the drug to be used in
executions.
Ante, at 4–5. Like a number of other
States, Oklahoma opted to substitute pentobarbital, another
barbiturate, in its place. But in March 2014, shortly before two
scheduled executions, Oklahoma found itself unable to secure this
drug. App. 144.
The State rescheduled the executions for the
following month to give it time to locate an alternative
anesthetic. In less than a week, a group of officials from the
Okla-homa Department of Corrections and the Attorney
General’s office selected midazolam to serve as a replacement
for pentobarbital.
Id., at 145, 148–149.
Soon thereafter, Oklahoma used midazolam for the
first time in its execution of Clayton Lockett. That execution did
not go smoothly. Ten minutes after an intravenous (IV) line was set
in Lockett’s groin area and 100 milligrams of midazolam were
administered, an attending physician declared Lockett unconscious.
Id., at 392–393. When the paralytic and potassium
chloride were administered, however, Lockett awoke.
Ibid.
Various witnesses reported that Lockett began to writhe against his
restraints, saying, “[t]his s*** is f***ing with my
mind,” “something is wrong,” and “[t]he
drugs aren’t working.”
Id., at 53 (internal
quotation marks omitted). State officials ordered the blinds
lowered, then halted the execution.
Id., at 393, 395. But 10
minutes later—approximately 40 minutes after the execution
began—Lockett was pronounced dead.
Id., at 395.
The State stayed all future executions while it
sought to determine what had gone wrong in Lockett’s. Five
months later, the State released an investigative report
identifying a flaw in the IV line as the principal difficulty: The
IV had failed to fully deliver the lethal drugs into
Lockett’s veins.
Id., at 398. An autopsy determined,
however, that the concentration of midazolam in Lockett’s
blood was more than sufficient to render an average person
unconscious.
Id., at 397, 405.
In response to this report, the State modified
its lethal injection protocol. The new protocol contains a number
of procedures designed to guarantee that members of the execution
team are able to insert the IV properly, and charges them with
ensuring that the inmate is unconscious.
Id., at
57–66, 361–369. But the protocol continues to authorize
the use of the same three-drug formula used to kill
Lockett—though it does increase the intended dose of
midazolam from 100 milligrams to 500 milligrams.
Id., at 61.
The State has indicated that it plans to use this drug combination
in all upcoming executions, subject to only an immaterial
substitution of paralytic agents.
Ante, at 7–8.
C
In June 2014, inmates on Oklahoma’s
death row filed a 42 U. S. C. §1983 suit against
respondent prison officials challenging the constitutionality of
Oklahoma’s method of execution. After the State released its
revised execution protocol, the four inmates whose executions were
most imminent—Charles Warner, along with petitioners Richard
Glossip, John Grant, and Benjamin Cole—moved for a
preliminary injunction. They contended, among other things, that
the State’s intended use of midazolam would violate the
Eighth Amendment because, unlike sodium thiopental or
pentobarbital, the drug “is incapable of producing a state of
unawareness that will be reliably maintained after either of the
other two pain-producing drugs . . . is injected.”
Amended Complaint ¶101.
The District Court held a 3-day evidentiary
hearing, at which petitioners relied principally on the testimony
of two experts: Dr. David Lubarsky, an anesthesiologist, and Dr.
Larry Sasich, a doctor of pharmacy. The State, in turn, based its
case on the testimony of Dr. Roswell Evans, also a doctor of
pharmacy.
To a great extent, the experts’ testimony
overlapped. All three experts agreed that midazolam is from a class
of sedative drugs known as benzodiazepines (a class that includes
Valium and Xanax), and that it has no analgesic—or
pain-relieving—effects. App. 205 (Lubarsky), 260–261
(Sasich)
, 311 (Evans). They further agreed that while
midazolam can be used to render someone unconscious, it is not
approved by the Federal Drug Administration (FDA) for use as, and
is not in fact used as, a “sole drug to produce and maintain
anesthesia in surgical proceedings.”
Id., at 307, 327
(Evans); see
id., at 171 (Lubarsky);
id., at 262
(Sasich). Finally, all three experts recognized that midazolam is
subject to a ceiling effect, which means that there is a point at
which increasing the dose of the drug does not result in any
greater effect.
Id., at 172 (Lubarsky), 243 (Sasich), 331
(Evans).
The experts’ opinions diverged, however,
on the crucial questions of how this ceiling effect operates, and
whether it will prevent midazolam from keeping a condemned inmate
unconscious when the second and third lethal injection drugs are
administered. Dr. Lubarsky testified that while benzodiazepines
such as midazolam may, like barbiturate drugs such as sodium
thiopental and pentobarbital, induce unconsciousness by inhibiting
neuron function, they do so in a materially different way.
Id., at 207. More specifically, Dr. Lubarsky explained that
both barbiturates and benzodiazepines initially cause sedation by
facilitating the binding of a naturally occurring chemical called
gamma-aminobutyric acid (GABA) with GABA receptors, which then
impedes the flow of electrical impulses through the neurons in the
central nervous system.
Id., at 206. But at higher doses,
barbiturates also act as a GABA substitute and mimic its
neuron-suppressing effects.
Ibid. By contrast,
benzodiazepines lack this mimicking function, which means their
effect is capped at a lower level of sedation.
Ibid.
Critically, according to Dr. Lubarsky, this ceiling on
midazolam’s sedative effect is reached before full anesthesia
can be achieved.
Ibid. Thus, in his view, while
“midazolam unconsciousness is . . .
sufficient” for “minor procedure[s],” Tr. of
Preliminary Injunction Hearing 132–133 (Tr.), it is incapable
of keeping someone “insensate and immobile in the face of
[more] noxious stimuli,” including the extreme pain and
discomfort associated with administration of the second and third
drugs in Oklahoma’s lethal injection protocol, App. 218. Dr.
Sasich endorsed Dr. Lubarsky’s description of the ceiling
effect, and offered similar reasons for reaching the same
conclusion. See
id., at 243, 248, 262.
In support of these assertions, both experts
cited a variety of evidence. Dr. Lubarsky emphasized, in
particular, Arizona’s 2014 execution of Joseph Wood, which
had been conducted using midazolam and the drug hydromorphone
rather than the three-drug cocktail Oklahoma intends to
employ.[
1]
Id., at 176.
Despite being administered 750 milligrams of midazolam, Wood had
continued breathing and moving for nearly two hours—which,
according to Dr. Lubarsky, would not have occurred “during
extremely deep levels of anesthesia.”
Id., at 177.
Both experts also cited various scientific articles and textbooks
to support their conclusions. For instance, Dr. Lubarsky relied on
a study measuring the brain activity of rats that were administered
midazolam, which showed that the drug’s impact significantly
tailed off at higher doses. See Hovinga et al., Pharmacokinetic-EEG
Effect Relationship of Midazolam in Aging BN/BiRij Rats, 107
British J. Pharmacology 171, 173, Fig. 2 (1992). He also pointed to
a pharmacology textbook that confirmed his description of how
benzodiazepines and barbiturates produce their effects, see
Stoelting & Hillier 127–128, 140–144, and a survey
article concluding that “[m]idazolam cannot be used alone
. . . to maintain adequate anesthesia,” Reves,
Fragen, Vinik, & Greenblatt, Midazolam: Pharmacology and Uses,
62 Anesthesiology 310, 318 (1985) (Reves). For his part, Dr. Sasich
referred to a separate survey article, which similarly recognized
and described the ceiling effect to which benzodiazepines are
subject. See Saari, Uusi- Oukari, Ahonen, & Olkkola,
Enhancement of GABAergic Activity: Neuropharmacological Effects of
Benzodiazepines and Therapeutic Use in Anesthesiology, 63
Pharamacological Rev. 243, 244, 250 (2011) (Saari).
By contrast, Dr. Evans, the State’s
expert, asserted that a 500-milligram dose of midazolam would
“render the person unconscious and ‘insensate’
during the remainder of the [execution] procedure.” App. 294.
He rested this conclusion on two interrelated propositions.
First, observing that a therapeutic dose of
midazolam to treat anxiety is less than 5 milligrams for a
70-kilogram adult, Dr. Evans emphasized that Oklahoma’s
planned administration of 500 milligrams of the drug was “at
least 100 times the normal therapeutic dose.”
Ibid.
While he acknowledged that “[t]here are no studies that have
been done . . . administering that much . . .
midazolam . . . to anybody,” he noted that deaths
had occurred in doses as low as 0.04 to 0.07 milligrams per
kilogram (2.8 to 4.9 milligrams for a 70-kilogram adult), and
contended that a 500-milligram dose would itself cause death within
less than an hour—a conclusion he characterized as
“essentially an extrapolation from a toxic effect.”
Id., at 327; see
id.,at 308.
Second, in explaining how he reconciled his
opinion with the evidence of midazolam’s ceiling effect, Dr.
Evans testified that while “GABA receptors are found across
the entire body,” midazolam’s ceiling effect is limited
to the “spinal cord” and there is “no ceiling
effect” at the “higher level of [the] brain.”
Id., at 311–312. Consequently, in his view, “as
you increase the dose of midazolam, it’s a linear effect, so
you’re going to continue to get an impact from higher doses
of the drug,”
id., at 332, until eventually
“you’re paralyzing the brain,”
id., at
314. Dr. Evans also understood the chemical source of
midazolam’s ceiling effect somewhat differently from
petitioners’ experts. Although he agreed that midazolam
produces its effect by “binding to [GABA] receptors,”
id., at 293, he appeared to believe that midazolam produced
sedation by “inhibiting GABA” from attaching to GABA
receptors, not by promoting GABA’s sedative effects,
id., at 312. Thus, when asked about Dr. Lubarsky’s
description of the ceiling effect, Dr. Evans characterized the
phenomenon as stemming from “the competitive nature of
substances trying to attach to GABA receptors.”
Id.,
at 313.
Dr. Evans cited no scholarly research in support
of his opinions. Instead, he appeared to rely primarily on two
sources: the Web site www.drugs.com, and a “Material Safety
Data Sheet” produced by a midazolam manufacturer. See
id., at 303. Both simply contained general information that
covered the experts’ areas of agreement.
D
The District Court denied petitioners’
motion for a preliminary injunction. It began by making a series of
factual findings regarding the characteristics of midazolam and its
use in Oklahoma’s execution protocol. Most relevant here, the
District Court found that “[t]he proper administration of 500
milligrams of midazolam . . . would make it a virtual
certainty that an individual will be at a sufficient level of
unconsciousness to resist the noxious stimuli which could occur
from the application of the second and third drugs.”
Id., at 77. Respecting petitioners’ contention that
there is a “ceiling effect which prevents an increase in
dosage from having a corresponding incremental effect on anesthetic
depth,” the District Court concluded:
“Dr. Evans testified persuasively
. . . that whatever the ceiling effect of midazolam may
be with respect to anesthesia, which takes effect at the spinal
cord level, there is no ceiling effect with respect to the ability
of a 500 milligram dose of midazolam to effectively paralyze the
brain, a phenomenon which is not anesthesia but does have the
effect of shutting down respiration and eliminating the
individual’s awareness of pain.”
Id., at 78.
Having made these findings, the District Court
held that petitioners had shown no likelihood of success on the
merits of their Eighth Amendment claim for two independent reasons.
First, it determined that petitioners had “failed to
establish that proceeding with [their] execution[s] . . .
on the basis of the revised protocol presents . . .
‘an objectively intolerable risk of harm.’ ”
Id., at 96. Second, the District Court held that petitioners
were unlikely to prevail because they had not identified any
“ ‘known and available
alternative’ ” means by which they could be
executed—a requirement it understood
Baze to impose.
Id., at 97. The District Court concluded that the State
“ha[d] affirmatively shown that sodium thiopental and
pentobarbital, the only alternatives to which the [petitioners]
have even alluded, are not available to the [State].”
Id., at 98.
The Court of Appeals for the Tenth Circuit
affirmed.
Warner v.
Gross, 776 F. 3d 721 (2015).
It, like the District Court, held that petitioners were unlikely to
prevail on the merits because they had failed to prove the
existence of “ ‘known and available
alternatives.’ ”
Id., at 732. “In any
event,” the court continued, it was unable to conclude that
the District Court’s factual findings had been clearly
erroneous, and thus petitioners had also “failed to establish
that the use of midazolam in their executions . . .
creates a demonstrated risk of severe pain.”
Ibid.
Petitioners and Charles Warner filed a petition
for certiorari and an application to stay their executions. The
Court denied the stay application, and Charles Warner was executed
on January 15, 2015. See
Warner v.
Gross, 574
U. S. ___ (2015) (Sotomayor, J., dissenting from denial of
certiorari). The Court subsequently granted certiorari and, at the
request of the State, stayed petitioners’ pending
executions.
II
I begin with the second of the Court’s
two holdings: that the District Court properly found that
petitioners did not demonstrate a likelihood of showing that
Oklahoma’s execution protocol poses an unconstitutional risk
of pain. In reaching this conclusion, the Court sweeps aside
substantial evidence showing that, while midazolam may be able to
induce unconsciousness, it cannot be utilized to
maintain unconsciousness in the face of agonizing stimuli.
Instead, like the District Court, the Court finds comfort in Dr.
Evans’ wholly unsupported claims that 500 milligrams of
midazolam will “paralyz[e] the brain.” In so holding,
the Court disregards an objectively intolerable risk of severe
pain.
A
Like the Court, I would review for clear error
the District Court’s finding that 500 milligrams of midazolam
will render someone sufficiently unconscious “ ‘to
resist the noxious stimuli which could occur from the application
of the second and third drugs.’ ”
Ante, at
18–19 (quoting App. 77). Unlike the Court, however, I would
do so without abdicating our duty to examine critically the factual
predicates for the District Court’s finding—namely, Dr.
Evans’ testimony that midazolam has a “ceiling
effect” only “at the spinal cord level,” and that
a “500 milligram dose of midazolam” can therefore
“effectively paralyze the brain.”
Id., at 78. To
be sure, as the Court observes, such scientific testimony may at
times lie at the boundaries of fed-eral courts’ expertise.
See
ante, at 17–18. But just because a purported
expert says something does not make it so. Especially when
important constitutional rights are at stake, federal district
courts must carefully evaluate the premises and evidence on which
scientific conclusions are based, and appellate courts must ensure
that the courts below have in fact carefully considered all the
evidence presented. Clear error exists “when although there
is evidence to support” a finding, “the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
United
States v.
United States Gypsum Co., 333 U. S. 364,
395 (1948) . Here, given the numerous flaws in Dr. Evans’
testimony, there can be little doubt that the District Court
clearly erred in relying on it.
To begin, Dr. Evans identified no scientific
literature to support his opinion regarding midazolam’s
properties at higher-than-normal doses. Apart from a Material
Safety Data Sheet that was relevant only insofar as it suggests
that a low dose of midazolam may occasionally be toxic, see
ante, at 27—an issue I discuss further below—Dr.
Evans’ testimony seems to have been based on the Web site
www.drugs.com. The Court may be right that “petitioners do
not identify any incorrect statements from drugs.com on which Dr.
Evans relied.”
Ante, at 27. But that is because there
were
no statements from drugs.com that supported the
critically disputed aspects of Dr. Evans’ opinion. If
anything, the Web site supported petitioners’ contentions, as
it expressly cautioned that midazolam “[s]hould not be used
alone for maintenance of anesthesia,” App. H to Pet. for
Cert. 6159, and contained no warning that an excessive dose of
midazolam could “paralyze the brain,” see
id.,
at 6528–6529.
Most importantly, nothing from
drugs.com—or, for that matter, any other source in the
record—corroborated Dr. Evans’ key testimony that
midazolam’s ceiling effect is limited to the spinal cord and
does not pertain to the brain. Indeed, the State appears to have
disavowed Dr. Evans’ spinal-cord theory, refraining from even
mentioning it in its brief despite the fact that the District Court
expressly relied on this testimony as the basis for finding that
larger doses of midazolam will have greater anesthetic effects.
App. 78. The Court likewise assiduously avoids defending this
theory.
That is likely because this aspect of Dr.
Evans’ testi-mony was not just unsupported, but was directly
refuted by the studies and articles cited by Drs. Lubarsky and
Sasich. Both of these experts relied on academic texts describing
benzodiazepines’ ceiling effect and explaining why it
prevents these drugs from rendering a person completely insensate.
See Stoelting & Hillier 141, 144 (describing midazolam’s
ceiling effect and contrasting the drug with barbiturates); Saari
244 (observing that “abolishment of perception of
environmental stimuli cannot usually be generated”). One
study further made clear that the ceiling effect is apparent in the
brain. See
id., at 250.
These scientific sources also appear to
demonstrate that Dr. Evans’ spinal-cord
theory—
i.e., that midazolam’s ceiling effect is
limited to the spinal cord—was premised on a basic
misunderstanding of midazolam’s mechanism of action. I say
“appear” not because the sources themselves are unclear
about how midazolam operates: They plainly state that midazolam
functions by promoting GABA’s inhibitory effects on the
central nervous system. See,
e.g., Stoelting & Hillier
140. Instead, I use “appear” because discerning the
rationale underlying Dr. Evans’ testimony is difficult. His
spinal-cord theory might, however, be explained at least in part by
his apparent belief that rather than promoting GABA’s
inhibitory effects, midazolam produces sedation by
“compet[ing]” with GABA and thus
“inhibit[ing]” GABA’s effect. App.
312–313.[
2] Regardless, I
need not delve too deeply into Dr. Evans’ alternative
scientific reality. It suffices to say that to the extent that Dr.
Evans’ testimony was based on his understanding of the source
of midazolam’s pharmacological properties, that understanding
was wrong.
These inconsistencies and inaccuracies go to the
very heart of Dr. Evans’ expert opinion, as they were the key
components of his professed belief that one can extrapolate from
what is known about midazolam’s effect at low doses to
conclude that the drug would “paralyz[e] the brain” at
Oklahoma’s planned dose.
Id., at 314. All three
experts recognized that there had been no scientific testing on the
use of this amount of midazolam in conjunction with these
particular lethal injection drugs. See
ante, at 19; App. 176
(Lubarsky), 243–244 (Sasich), 327 (Evans). For this reason,
as the Court correctly observes, “extrapolation was
reasonable.”
Ante, at 20. But simply because
extrapolation may be reasonable or even required does not mean that
every conceivable method of extrapolation can be credited, or that
all estimates stemming from purported extrapolation are worthy of
belief. Dr. Evans’ view was that because 40 milligrams of
midazolam could be used to induce unconsciousness, App. 294, and
because more drug will generally produce more effect, a
significantly larger dose of 500 milligrams would not just induce
unconsciousness but allow for its maintenance in the face of
extremely painful stimuli, and ultimately even cause death itself.
In his words: “[A]s you increase the dose of midazolam,
it’s a linear effect, so you’re going to continue to
get an impact from higher doses of the drug.”
Id., at
332. If, however, there is a ceiling with respect to
midazolam’s effect on the brain—as petitioners’
experts established there is—then such simplistic logic is
not viable. In this context, more is not necessarily better, and
Dr. Evans was plainly wrong to presume it would be.
If Dr. Evans had any other basis for the
“extrapolation” that led him to conclude 500 milligrams
of midazolam would “paralyz[e] the brain,”
id.,
at 314, it was even further divorced from scientific evidence and
logic. Having emphasized that midazolam had been known to cause
approximately 80 deaths, Dr. Evans asserted that his opinion
regarding the efficacy of Oklahoma’s planned use of the drug
represented “essentially an extrapolation from a
toxic
effect.”
Id., at 327 (emphasis added); see
id.,
at 308. Thus, Dr. Evans appeared to believe—and again, I say
“appeared” because his rationale is not
clear—that because midazolam caused
some deaths, it
would necessarily cause complete unconsciousness and then death at
especially high doses. But Dr. Evans also thought, and Dr. Lubarsky
confirmed, that these midazolam fatalities had occurred at very low
doses—well below what any expert said would produce
unconsciousness. See
id., at 207, 308. These deaths thus
seem to represent the rare, unfortunate side effects that one would
expect to see with any drug at normal therapeutic doses; they
provide no indication of the effect one would expect midazolam to
have on the brain at substantially higher doses. Deaths occur with
almost any product. One might as well say that because some people
occasionally die from eating one peanut, one hundred peanuts would
necessarily induce a coma and death in anyone.[
3]
In sum, then, Dr. Evans’ conclusions were
entirely unsupported by any study or third-party source,
contradicted by the extrinsic evidence proffered by petitioners,
inconsistent with the scientific understanding of midazolam’s
properties, and apparently premised on basic logical errors. Given
these glaring flaws, the District Court’s acceptance of Dr.
Evans’ claim that 500 milligrams of midazolam would
“paralyz[e] the brain” cannot be credited. This is not
a case “[w]here there are two permissibleviews of the
evidence,” and the District Court chose one; rather, it is
one where the trial judge credited “one of two or more
witnesses” even though that witness failed to tell “a
coherent and facially plausible story that is not contradicted by
extrinsic evidence.”
Anderson v.
Bessemer City,
470 U. S. 564 –575 (1985). In other words, this is a
case in which the District Court clearly erred. See
ibid.
B
Setting aside the District Court’s
erroneous factual finding that 500 milligrams of midazolam will
necessarily “paralyze the brain,” the question is
whether the Court is nevertheless correct to hold that petitioners
failed to demonstrate that the use of midazolam poses an
“objectively intolerable risk” of severe pain. See
Baze, 553 U. S., at 50 (plurality opinion) (internal
quotation marks omitted). I would hold that they made this showing.
That is because, in stark contrast to Dr. Evans, petitioners’
experts were able to point to objective evidence indicating that
midazolam cannot serve as an effective anesthetic that
“render[s] a person insensate to pain caused by the second
and third [lethal injection] drugs.”
Ante, at 23.
As observed above, these experts cited multiple
sources supporting the existence of midazolam’s ceiling
effect. That evidence alone provides ample reason to doubt
midazolam’s efficacy. Again, to prevail on their claim,
petitioners need only establish an intolerable
risk of pain,
not a certainty. See
Baze, 553 U. S., at 50. Here, the
State is attempting to use midazolam to produce an effect the drug
has never previously been demonstrated to produce, and despite
studies indicating that at some point increasing the dose will not
actually increase the drug’s effect. The State is thus
proceeding in the face of a very real risk that the drug will not
work in the manner it claims.
Moreover, and perhaps more importantly, the
record provides good reason to think this risk is substantial. The
Court insists that petitioners failed to provide “probative
evidence” as to whether “midazolam’s ceiling
effect occurs below the level of a 500-milligram dose and at a
point at which the drug does not have the effect of rendering a
person insensate to pain.”
Ante, at 23. It emphasizes
that Dr. Lubarsky was unable to say “at what dose the ceiling
effect occurs,” and could only estimate that it was
“ ‘[p]robably after about . . . 40 to 50
milligrams.’ ”
Ante, at 23 (quoting App.
225).
But the precise
dose at which midazolam
reaches its ceiling effect is irrelevant if there is no dose at
which the drug can, in the Court’s words, render a person
“insensate to pain.”
Ante, at 23. On this
critical point, Dr. Lubarsky was quite clear.[
4] He explained that the drug “does not work
to produce” a “lack of consciousness as noxious stimuli
are applied,” and is “not sufficient to produce a
surgical plane of anesthesia in human beings.” App. 204. He
also noted that “[t]he drug would never be used and has never
been used as a sole anesthetic to give anesthesia during a
surgery,”
id., at 223, and asserted that “the
drug was not approved by the FDA as a sole anesthetic because after
the use of fairly large doses that were sufficient to reach the
ceiling effect and produce induction of unconsciousness, the
patients responded to the surgery,”
id., at 219. Thus,
Dr. Lubarsky may not have been able to identify whether this effect
would be reached at 40, 50, or 60 milligrams or some higher
threshold, but he could specifythat at no level would midazolam
reliably keep an in-mate unconscious once the second and third
drugs were delivered.[
5]
These assertions were amply supported by the
evidence of the manner in which midazolam is and can be used. All
three experts agreed that midazolam is utilized as the sole
sedative only in minor procedures. Dr. Evans, for example,
acknowledged that while midazolam may be used as the sole drug in
some procedures that are not “terribly invasive,” even
then “you would [generally] see it used in combination with a
narcotic.”
Id., at 307. And though, as the Court
observes, Dr. Sasich believed midazolam could be “used for
medical procedures like colonoscopies and gastroscopies,”
ante, at 21, he insisted that these procedures were not
necessarily painful, and that it would be a “big jump”
to conclude that midazolam would be effective to maintain
unconsciousness throughout an execution. Tr. 369–370. Indeed,
the record provides no reason to think that these procedures cause
excruciating pain remotely comparable to that produced by the
second and third lethal injection drugs Oklahoma intends to
use.
As for more painful procedures, the consensus
was also clear: Midazolam is not FDA-approved for, and is not used
as, a sole drug to maintain unconsciousness. See App. 171
(Lubarsky), 262 (Sasich), 327 (Evans). One might infer from the
fact that midazolam
is not used as the sole anesthetic for
more serious procedures that it
cannot be used for them. But
drawing such an inference is unnecessary, as petitioners’
experts invoked sources expressly stating as much. In particular,
Dr. Lubarsky pointed to a survey article that cited four separate
authorities and declared that “[m]idazolam cannot be used
alone . . . to maintain adequate anesthesia.” Reves
318; see also Stoelting & Hillier 145 (explaining that midzolam
is used for “induction of anesthesia,” and that,
“
[i]n combination with other drugs, [it] may be used
for maintenance of anesthesia” (emphasis added)).
This evidence was alone sufficient, but if one
wanted further support for these conclusions it was provided by the
Lockett and Wood executions. The procedural flaws that marred the
Lockett execution created the conditions for an unintended (and
grotesque) experiment on midazolam’s efficacy. Due to
problems with the IV line, Lockett was not fully paralyzed after
the second and third drugs were administered. He had, however, been
administered more than enough midazolam to “render an average
person unconscious,” as the District Court found. App. 57.
When Lockett awoke and began to writhe and speak, he demonstrated
the critical difference between midazolam’s ability to render
an inmate unconscious and its ability to maintain the inmate in
that state. The Court insists that Lockett’s execution
involved “only 100 milligrams of midazolam,”
ante, at 28, but as explained previously, more is not
necessarily better given midazolam’s ceiling effect.
The Wood execution is perhaps even more
probative. Despite being given over 750 milligrams of midazolam,
Wood gasped and snorted for nearly two hours. These reactions were,
according to Dr. Lubarsky, inconsistent with Wood being fully
anesthetized, App. 177–178, and belie the claim that a lesser
dose of 500 milligrams would somehow suffice. The Court attempts to
distinguish the Wood execution on the ground that the timing of
Arizona’s administration of midazolam was different.
Ante, at 28. But as Dr. Lubarsky testified, it did not
“matter” whether in Wood’s execution the
“midazolam was introduced all at once or over . . .
multiple doses,” because “[t]he drug has a sufficient
half life that the effect is cumulative.” App. 220; see also
Saari 253 (midazolam’s “elimination half-life ranges
from 1.7 to 3.5 h[ours]”).[
6] Nor does the fact that Wood’s dose of midazolam
was paired with hydromorphone rather than a paralytic and potassium
chromide, see
ante, at 29, appear to have any
relevance—other than that the use of this analgesic drug may
have meant that Wood did not experience the same degree of searing
pain that an inmate executed under Oklahoma’s protocol may
face.
By contrast, Florida’s use of this same
three-drug protocol in 11 executions, see
ante, at 28
(citing Brief for State of Florida as
Amicus Curiae 1),
tells us virtually nothing. Although these executions have featured
no obvious mishaps, the key word is “obvious.” Because
the protocol involves the administration of a powerful paralytic,
it is, as Drs. Sasich and Lubarsky explained, impossible to tell
whether the condemned inmate in fact remained unconscious. App.
218, 273; see also
Baze, 553 U. S., at 71 (Stevens, J.,
concurring in judgment). Even in these executions, moreover, there
have been indications of the inmates’ possible awareness. See
Brief for State of Alabama et al. as
Amici Curiae 9–13
(describing the 11 Flor-ida executions, and noting that some
allegedly involved blinking and other movement after administration
of the three drugs).[
7]
Finally, none of the State’s
“safeguards” for administering these drugs would seem
to mitigate the substantial risk that midazolam will not work, as
the Court contends. See
ante, at 21–22. Protections
ensuring that officials have properly secured a viable IV site will
not enable midazolam to have an effect that it is chemically
incapable of having. Nor is there any indication that the
State’s monitoring of the inmate’s consciousness will
be able to anticipate whether the inmate will
remain
unconscious while the second and third drugs are administered. No
one questions whether midazolam can induce unconsciousness. The
problem, as Lockett’s execution vividly illustrates, is that
an unconscious inmate may be awakened by the pain and respiratory
distress caused by administration of the second and third drugs. At
that point, even if it were possible to determine whether the
inmate is conscious—dubious, given the use of a
paralytic—it is already too late. Presumably for these
reasons, the Tenth Circuit characterized the District Court’s
reliance on these procedural mechanisms as “not relevant to
its rejection of [petitioners’] claims regarding the inherent
characteristics of midazolam.”
Warner, 776 F. 3d,
at 733.
C
The Court not only disregards this record
evidence of midazolam’s inadequacy, but also fails to fully
appreciate the procedural posture in which this case arises.
Petitioners have not been accorded a full hearing on the merits of
their claim. They were granted only an abbreviated evidentiary
proceeding that began less than three months after the State issued
its amended execution protocol; they did not even have the
opportunity to present rebuttal evidence after Dr. Evans testified.
They sought a preliminary injunction, and thus were not required to
prove their claim, but only to show that they were likely to
succeed on the merits. See
Winter v.
Natural Resources
Defense Council, Inc., 555 U. S. 7, 20 (2008) ;
Hill v.
McDonough, 547 U. S. 573, 584 (2006)
.
Perhaps the State could prevail after a full
hearing, though this would require more than Dr. Evans’
unsupported testimony. At the preliminary injunction stage,
however, petitioners presented compelling evidence suggesting that
midazolam will not work as the State intends. The State, by
contrast, offered absolutely no contrary evidence worth crediting.
Petitioners are thus at the very least
likely to prove that,
due to midazolam’s inherent deficiencies, there is a
constitutionally intolerable risk that they will be awake, yet
unable to move, while chemicals known to cause “excruciating
pain” course through their veins.
Baze, 553
U. S., at 71 (Stevens, J., concurring in judgment).
III
The Court’s determination that the use
of midazolam poses no objectively intolerable risk of severe pain
is factually wrong. The Court’s conclusion that
petitioners’ challenge also fails because they identified no
available alternative means by which the State may kill them is
legally indefensible.
A
This Court has long recognized that certain
methods of execution are categorically off-limits. The Court first
confronted an Eighth Amendment challenge to a method of execution
in
Wilkerson v.
Utah, 99 U. S. 130 (1879) .
Although
Wilkerson approved the particular method at
issue—the firing squad—it made clear that “public
dissection,” “burning alive,” and other
“punishments of torture . . . in the same line of
unnecessary cruelty, are forbidden by [the Eighth A]mendment to the
Constitution.”
Id., at 135–136. Eleven years
later, in rejecting a challenge to the first proposed use of the
electric chair, the Court again reiterated that “if the
punishment prescribed for an offense against the laws of the State
were manifestly cruel and unusual, as burning at the stake,
crucifixion, breaking on the wheel, or the like, it would be the
duty of the courts to adjudge such penalties to be within the
constitutional prohibition.”
In re Kemmler, 136
U. S. 436, 446 (1890) .
In the more than a century since, the Members of
this Court have often had cause to debate the full scope of the
Eighth Amendment’s prohibition of cruel and unusual
punishment. See,
e.g., Furman v.
Georgia, 408
U. S. 238 (1972) . But there has been little dispute that it
at the very least precludes the imposition of “barbarous
physical punishments.”
Rhodes v.
Chapman, 452
U. S. 337, 345 (1981) ; see,
e.g.,
Solem v.
Helm, 463 U. S. 277, 284 (1983) ;
id., at
312–313 (Burger, C. J., dissenting);
Baze, 553
U. S., at 97–99 (Thomas, J., concurring in judgment);
Harmelin v.
Michigan, 501 U. S. 957, 976 (1991)
(opinion of Scalia, J.). Nor has there been any question that the
Amendment prohibits such “inherently barbaric punishments
under all circumstances.”
Graham v.
Florida, 560 U. S. 48 (2010) (emphasis added). Simply
stated, the “ Eighth Amendment
categorically prohibits
the infliction of cruel and unusual punishments.”
Penry v.
Lynaugh, 492 U. S. 302, 330 (1989)
(emphasis added).
B
The Court today, however, would convert this
categorical prohibition into a conditional one. A method of
execution that is intolerably painful—even to the point of
being the chemical equivalent of burning alive—will, the
Court holds, be unconstitutional
if, and only if, there is a
“known and available alternative” method of execution.
Ante, at 15. It deems
Baze to foreclose any argument
to the contrary.
Ante, at 14.
Baze held no such thing. In the first
place, the Court cites only the plurality opinion in
Baze as
support for its known-and-available-alternative requirement. See
ibid. Even assuming that the
Baze plurality set forth
such a requirement—which it did not—none of the Members
of the Court whose concurrences were necessary to sustain the
Baze Court’s judgment articulated a similar view. See
553 U. S., at 71–77, 87 (Stevens, J., concurring in
judgment);
id., at 94, 99–107 (Thomas, J., concurring
in judgment);
id., at 107–108, 113 (Breyer, J.,
concurring in judgment). In general, “the holding of the
Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.”
Marks v.
United States, 430 U. S. 188, 193
(1977) (internal quotation marks omitted). And as the Court
observes,
ante, at 14, n. 2, the opinion of Justice
Thomas, joined by Justice Scalia, took the broadest position with
respect to the degree of intent that state officials must have
inorder to have violated the Eighth Amendment, concluding that only
a method of execution deliberately designedto inflict pain, and not
one simply designed with deliberate indifference to the risk of
severe pain, would be un-constitutional. 553 U. S., at 94
(Thomas, J., concurringin judgment). But this understanding of the
Eighth Amendment’s intent requirement is unrelated to, and
thus not any broader or narrower than, the requirement the Court
now divines from
Baze. Because the position that a plaintiff
challenging a method of execution under the Eighth Amendment must
prove the availability of an alternative means of execution did not
“represent the views of a majority of the Court,” it
was not the holding of the
Baze Court.
CTS Corp. v.
Dynamics Corp. of America, 481 U. S. 69, 81 (1987)
.
In any event, even the
Baze plurality
opinion provides no support for the Court’s proposition. To
be sure, that opinion contains the following sentence: “[The
condemned] must show that the risk is substantial when compared to
the known and available alternatives.” 553 U. S., at 61.
But the meaning of that key sentence and the limits of the
requirement it imposed are made clear by the sentence directly
preceding it: “A stay of execution may not be granted
on
grounds such as those asserted here unless the condemned
prisoner establishes that the State’s lethal injection
protocol creates a demonstrated risk of severe pain.”
Ibid. (emphasis added). In
Baze, the very premise of
the petitioners’ Eighth Amendment claim was that they had
“identified a significant risk of harm [in Kentucky’s
protocol] that [could] be eliminated by adopting alternative
procedures.”
Id., at 51. Their basic theory was that
even if the risk of pain was only, say, 25%, that risk would be
objectively intolerable if there was an obvious alternative that
would reduce the risk to 5%. See Brief for Petitioners in
Baze v.
Rees, O. T. 2007, No. 07–5439,
p. 29 (“In view of the severity of the pain risked and
the ease with which it could be avoided, Petitioners should not
have been required to show a high likelihood that they would suffer
such pain . . . ”). Thus, the “grounds
. . . asserted” for relief in
Baze were that
the State’s protocol was intolerably risky given the
alternative procedures the State could have employed.
Addressing this claim, the
Baze plurality
clarified that “a condemned prisoner cannot successfully
challenge a State’s method of execution merely by showing a
slightly or marginally safer alternative,” 553 U. S., at
51; instead, to succeed in a challenge of this type, the
comparative risk must be “substantial,”
id., at
61. Nowhere did the plurality suggest that
all challenges to
a State’s method of execution would require this sort of
comparative-risk analysis. Recognizing the relevance of available
alternatives is not at all the same as concluding that their
absence precludes a claimant from showing that a chosen method
carries objectively intolerable risks. If, for example, prison
officials chose a method of execution that has a 99% chance of
causing lingering and excruciating pain, certainly that risk would
be objectively intolerable whether or not the officials ignored
other methods in making this choice. Irrespective of the existence
of alternatives, there are some risks “so grave that it
violates contemporary standards of decency to expose
anyone
unwillingly to” them.
Helling v.
McKinney, 509
U. S. 25, 36 (1993) (emphasis in original).
That the
Baze plurality’s statement
regarding a condemned inmate’s ability to point to an
available alternative means of execution pertained only to
challenges premised on the existence of such alternatives is
further evidenced by the opinion’s failure to distinguish or
even mention the Court’s unanimous decision in
Hill v.
McDonough, 547 U. S. 573 .
Hill held that a
§1983 plaintiff challenging a State’s method of
execution need not “identif[y] an alternative, authorized
method of execution.”
Id., at 582. True, as the Court
notes,
ante, at 14–15,
Hill did so in the
context of addressing §1983’s pleading standard,
rejecting the proposed alternative-means requirement because the
Court saw no basis for the “[i]mposition of heightened
pleading requirements.” 547 U. S., at 582. But that only
confirms that the Court in
Hill did not view the
availability of an alternative means of execution as an element of
an Eighth Amendment claim: If it had, then requiring the plaintiff
to plead this element would not have meant imposing a heightened
standard at all, but rather would have been entirely consistent
with “traditional pleading requirements.”
Ibid.;
see
Ashcroft v.
Iqbal, 556 U. S. 662, 678 (2009)
. The
Baze plurality opinion should not be understood to
have so carelessly tossed aside
Hill’s underlying
premise less than two years later.
C
In reengineering
Baze to support its
newfound rule, the Court appears to rely on a flawed syllogism. If
the death penalty is constitutional, the Court reasons, then there
must be a means of accomplishing it, and thus some available method
of execution must be constitutional. See
ante, at 4,
15–16. But even accepting that the death penalty is, in the
abstract, consistent with evolving standards of decency, but see
ante, p.
___ (Breyer, J., dissenting), the
Court’s conclusion does not follow. The constitutionality of
the death penalty may inform our conception of the degree of pain
that would render a particular method of imposing it
unconstitutional. See
Baze, 553 U. S., at 47 (plurality
opinion) (because “[s]ome risk of pain is inherent in any
method of execution,” “[i]t is clear . . .
the Constitution does not demand the avoidance of all risk of
pain”). But a method of execution that is
“barbarous,”
Rhodes, 452 U. S., at 345, or
“involve[s] torture or a lingering death,”
Kemmler, 136 U. S., at 447, does not become less so
just because it is the only method currently available to a State.
If all available means of conducting an execution constitute cruel
and unusual punishment, then conducting the execution will
constitute cruel and usual punishment. Nothing compels a State to
perform an execution. It does not get a constitutional free pass
simply because it desires to deliver the ultimate penalty; its ends
do not justify any and all means. If a State wishes to carry out an
execution, it must do so subject to the constraints that our
Constitution imposes on it, including the obligation to ensure that
its chosen method is not cruel and unusual. Certainly the condemned
has no duty to devise or pick a constitutional instrument of his or
her own death.
For these reasons, the Court’s
available-alternative requirement leads to patently absurd
consequences. Petitioners contend that Oklahoma’s current
protocol is a barbarous method of punishment—the chemical
equivalent of being burned alive. But under the Court’s new
rule, it would not matter whether the State intended to use
midazolam, or instead to have petitioners drawn and quartered,
slowly tortured to death, or actually burned at the stake: because
petitioners failed to prove the availability of sodium thiopental
or pentobarbital, the State could execute them using whatever means
it designated. But see
Baze, 553 U. S., at
101–102 (Thomas, J., concurring in judgment) (“It
strains credulity to suggest that the defining characteristic of
burning at the stake, disemboweling, drawing and quartering,
beheading, and the like was that they involved risks of pain that
could be eliminated by using alternative methods of
execution”).[
8] The
Eighth Amendment cannot possibly countenance such a result.
D
In concocting this additional requirement, the
Court is motivated by a desire to preserve States’ ability to
conduct executions in the face of changing circumstances. See
ante, at 4–6, 27–28. It is true, as the Court
details, that States have faced “practical obstacle[s]”
to obtaining lethal injection drugs since
Baze was decided.
Ante, at 4. One study concluded that recent years have seen
States change their protocols “with a frequency that is
unprecedented among execution methods in this country’s
history.” Denno, Lethal Injection Chaos Post-
Baze, 102
Geo. L. J. 1331, 1335 (2014).
But why such developments compel the
Court’s imposition of further burdens on those facing
execution is a mystery. Petitioners here had no part in creating
the shortage of execution drugs; it is odd to punish them for the
actions of pharmaceutical companies and others who seek to
disassociate themselves from the death penalty—actions which
are, of course, wholly lawful. Nor, certainly, should these rapidly
changing circumstances give us any greater confidence that the
execution methods ultimately selected will be sufficiently humane
to satisfy the Eighth Amendment. Quite the contrary. The execution
protocols States hurriedly devise as they scramble to locate new
and untested drugs, see
supra, at 3, are all the more likely
to be cruel and unusual—presumably, these drugs would have
been the States’ first choice were they in fact more
effective. But see Denno, The Lethal Injection Quandry: How
Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev.
49, 65–79 (2007) (describing the hurried and unreasoned
process by which States first adopted the original three-drug
protocol). Courts’ review of execution methods should be
more, not less, searching when States are engaged in what is in
effect human experimentation.
It is also worth noting that some condemned
inmates may read the Court’s surreal requirement that they
iden-tify the means of their death as an invitation to propose
methods of executions less consistent with modern sensibilities.
Petitioners here failed to meet the Court’s new test because
of their assumption that the alternative drugs to which they
pointed, pentobarbital and sodium thiopental, were available to the
State. See
ante, at 13–14. This was perhaps a
reasonable assumption, especially given that neighboring Texas and
Missouri still to this day continue to use pentobarbital in
executions. See The Death Penalty Institute, Execution List 2015,
online at www.deathpenaltyinfo.org/execution-list-2015 (as visited
June 26, 2015, and available in the Clerk of the Court’s case
file).
In the future, however, condemned inmates might
well decline to accept States’ current reliance on lethal
injection. In particular, some inmates may suggest the firing squad
as an alternative. Since the 1920’s, only Utah has utilized
this method of execution. See S. Banner, The Death Penalty 203
(2002); Johnson, Double Murderer Executed by Firing Squad in Utah,
N. Y. Times, June 19, 2010, p. A12. But there is evidence to
suggest that the firing squad is significantly more reliable than
other methods, including lethal injection using the various
combinations of drugs thus far developed. See A. Sarat, Gruesome
Spectacles: Botched Executions and America’s Death Penalty,
App. A, p. 177 (2014) (calculating that while 7.12% of the
1,054 executions by lethal injection between 1900 and 2010 were
“botched,” none of the 34 executions by firing squad
had been). Just as important, there is some reason to think that it
is relatively quick and painless. See Banner,
supra, at
203.
Certainly, use of the firing squad could be seen
as a devolution to a more primitive era. See
Wood v.
Ryan, 759 F. 3d 1076, 1103 (CA9 2014) (Kozinski,
C. J., dissenting from denial of rehearing en banc). That is
not to say, of course, that it would therefore be unconstitutional.
But lethal injection represents just the latest iteration of the
States’ centuries-long search for “neat and
non-disfiguring homicidal methods.” C. Brandon, The Electric
Chair: An Unnatural American History 39 (1999) (quoting Editorial,
New York Herald, Aug. 10, 1884); see generally Banner,
supra, at 169–207. A return to the firing
squad—and the blood and physical violence that comes with
it—is a step in the opposite direction. And some might argue
that the visible brutality of such a death could conceivably give
rise to its own Eighth Amendment concerns. See
Campbell v.
Wood, 511 U. S. 1119 –1123 (1994) (Blackmun, J.,
dissenting from denial of stay of execution and certiorari);
Glass v.
Louisiana, 471 U. S. 1080, 1085 (1985)
(Brennan, J., dissenting from denial of certiorari). At least from
a condemned inmate’s perspective, however, such visible yet
relatively painless violence may be vastly preferable to an
excruciatingly painful death hidden behind a veneer of medication.
The States may well be reluctant to pull back the curtain for fear
of how the rest of us might react to what we see. But we deserve to
know the price of our collective comfort before we blindly allow a
State to make condemned inmates pay it in our names.
* * *
“By protecting even those convicted of
heinous crimes, the Eighth Amendment reaffirms the duty of the
government to respect the dignity of all persons.”
Roper v.
Simmons, 543 U. S. 551, 560 (2005) .
Today, however, the Court absolves the State of Oklahoma of this
duty. It does so by misconstruing and ignoring the record evidence
regarding the constitutional insufficiency of midazolam as a
sedative in a three-drug lethal injection cocktail, and by imposing
a wholly unprecedented obligation on the condemned inmate to
identify an available means for his or her own execution. The
contortions necessary to save this particular lethal injection
protocol are not worth the price. I dissent.