SUPREME COURT OF THE UNITED STATES
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.
Eighth Amendment succinctly prohibits the infliction of “cruel and unusual punishments.” Seven years ago, in Baze
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.).
, 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).
For many years, Oklahoma performed executions using the same three drugs at issue in 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.
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
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.,
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.
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
, 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
, 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.
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.
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,
. 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,”
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.,
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
, 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.
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.
, 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.
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,
547 U. S. 573,
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).
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.
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
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,
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
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
452 U. S. 337,
; see, e.g.
463 U. S. 277,
, at 312–313 (Burger, C. J., dissenting); Baze
, 553 U. S., at 97–99 (Thomas, J., concurring in judgment); Harmelin
501 U. S. 957,
(opinion of Scalia, J.). Nor has there been any question that the Amendment prohibits such “inherently barbaric punishments under all circumstances
560 U. S. 48
(2010) (emphasis added). Simply stated, the “
Eighth Amendment categorically
prohibits the infliction of cruel and unusual punishments.” Penry
492 U. S. 302,
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,
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,
(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,
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
, 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
509 U. S. 25,
(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
547 U. S. 573
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
556 U. S. 662,
. The Baze
plurality opinion should not be understood to have so carelessly tossed aside Hill
’s underlying premise less than two years later.
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
(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
Eighth Amendment cannot possibly countenance such a result.
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
, 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
511 U. S. 1119
–1123 (1994) (Blackmun, J., dissenting from denial of stay of execution and certiorari); Glass
471 U. S. 1080,
(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
543 U. S. 551,
. 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.