`
` Cite as: 580 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
` THOMAS D. ARTHUR v. JEFFERSON S. DUNN,
`
`COMMISSIONER, ALABAMA DEPARTMENT
`
`
`OF CORRECTIONS, ET AL.
`
`
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`
`STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
`
`
`No. 16–602. Decided February 21, 2017
`
`The motion of Certain Medical Professionals and Medi-
`
`cal Ethicists for leave to file a brief as amici curiae is
`
`granted. The petition for a writ of certiorari is denied.
` JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
`dissenting from the denial of certiorari.
`Nearly two years ago in Glossip v. Gross, 576 U. S. ___
`
`
`(2015), the Court issued a macabre challenge. In order to
`successfully attack a State’s method of execution as cruel
`and unusual under the Eighth Amendment, a condemned
`prisoner must not only prove that the State’s chosen
`method risks severe pain, but must also propose a “known
`
`and available” alternative method for his own execution.
`Id., at ___, ___ (slip op., at 13, 15).
`
`
`Petitioner Thomas Arthur, a prisoner on Alabama’s
`death row, has met this challenge. He has amassed signif-
`icant evidence that Alabama’s current lethal-injection
`protocol will result in intolerable and needless agony, and
`
`he has proposed an alternative—death by firing squad.
`The Court of Appeals, without considering any of the
`evidence regarding the risk posed by the current protocol,
`denied Arthur’s claim because Alabama law does not
`expressly permit execution by firing squad, and so it can-
`not be a “known and available” alternative under Glossip.
`
`Because this decision permits States to immunize their
`methods of execution—no matter how cruel or how unu-
`sual—from judicial review and thus permits state law to
`subvert the Federal Constitution, I would grant certiorari
`
`
`
`
`
`1
`
`
`
`

`

`2
`
`
`
`ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`and reverse. I dissent from my colleagues’ decision not to
`do so.
`
`
`
`I
`
`A
`
`
`Execution by lethal injection is generally accomplished
`through serial administration of three drugs. First, a fast-
`acting sedative such as sodium thiopental induces “a deep,
`comalike unconsciousness.” Baze v. Rees, 553 U. S. 35, 44
`(2008) (plurality opinion). Second, a paralytic agent—
`most often pancuronium bromide—“inhibits all muscular-
`skeletal movements and, by paralyzing the diaphragm,
`
`stops respiration.” Ibid. Third, potassium chloride in-
`duces fatal cardiac arrest. Ibid.
`
`The first drug is critical; without it, the prisoner faces
`
`the unadulterated agony of the second and third drugs.
`The second drug causes “an extremely painful sensation of
`crushing and suffocation,” see Denno, When Legislatures
`Delegate Death: The Troubling Paradox Behind State
`Uses of Electrocution and Lethal Injection and What It
`Says About Us, 63 Ohio St. L. J. 63, 109, n. 321 (2002); but
`
`paralyzes the prisoner so as to “mas[k] any outward sign
`of distress,” thus serving States’ interest “‘in preserving
`
`the dignity of the procedure,’” Baze, 553 U. S., at 71, 73
`(Stevens, J., concurring in judgment). And the third drug
`causes an “excruciating burning sensation” that
`is
`“equivalent to the sensation of a hot poker being inserted
`into the arm” and traveling “with the chemical up the
`prisoner’s arm and . . . across his chest until it reaches his
`heart.” Denno, supra, at 109, n. 321.
`
`Execution absent an adequate sedative thus produces a
`nightmarish death: The condemned prisoner is conscious
`but entirely paralyzed, unable to move or scream his
`agony, as he suffers “what may well be the chemical
`equivalent of being burned at the stake.” Glossip, 576
`U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 2).
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`
`Cite as: 580 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`B
`
`
`For many years, the barbiturate sodium thiopental
`seemed up to this task.1 In 2009, however, the sole Ameri-
`can manufacturer of sodium thiopental suspended domes-
`tic production and later left the market altogether. Id., at
`___–___ (majority opinion) (slip op., at 4–5). States then
`began to use another barbiturate, pentobarbital. Id., at
`___ (slip op., at 5). But in 2013, it also became unavail-
`able. Id., at ___–___ (slip op., at 5–6). Only then did States
`turn to midazolam, the drug at the center of this case.
`
`Midazolam, like Valium and Xanax, belongs to a class of
`medicines known as benzodiazepines and has some anes-
`thetic effect. Id., at ___ (SOTOMAYOR, J., dissenting) (slip
`
`op., at 5). Generally, anesthetics can cause a level of
`sedation and depression of electrical brain activity suffi-
`cient to block all sensation, including pain. App. to Pet.
`
`for Cert. 283a–290a. But it is not clear that midazolam
`adequately serves this purpose. This is because midazo-
`lam, unlike barbiturates such as pentobarbital, has no
`
`
`analgesic—pain-relieving—effects. Id., at 307a; see also
`Glossip, 576 U. S., at ___ (SOTOMAYOR, J., dissenting) (slip
`
`op., at 5). Thus, “for midazolam to maintain unconscious-
`ness through application of a particular stimulus, it would
`need to depress electrical activity to a deeper level than
`
`would be required of, for example, pentobarbital.” App. to
`——————
`1We examined the constitutionality of lethal injection in Baze v. Rees,
`
`553 U. S. 35 (2008). There, the parties did not dispute that “proper
`
` administration of . . . sodium thiopental . . . eliminates any meaningful
`
`risk that a prisoner would experience pain” and results in a humane
`death.
`Id., at 49 (plurality opinion). The petitioners nonetheless
`challenged Kentucky’s three-drug protocol on the ground that, if prison
`executioners failed to follow the mandated procedures, an unconstitu-
`
`tional risk of significant pain would result. Ibid. A plurality of the
`Court concluded that “petitioners ha[d] not carried their burden of
`showing that the risk of pain from maladministration of a concededly
`humane lethal injection protocol” would violate the prohibition on cruel
`
`and unusual punishments. Id., at 41.
`
`3
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`Pet. for Cert. 307a.2 Although it can be used to render
`individuals unconscious, midazolam is not used on its own
`to maintain anesthesia—complete obliviousness to physi-
`cal sensation—in surgical procedures, and indeed, the
`Food and Drug Administration has not approved the drug
`for this purpose. Glossip, 576 U. S., at ___ (SOTOMAYOR,
`J., dissenting) (slip op., at 5).
`
`Like the experts in Glossip, the experts in this case
`agree 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. Ibid. The
`main dispute with respect to midazolam relates to how
`this ceiling effect operates—if the ceiling on midazolam’s
`sedative effect is reached before complete unconsciousness
`can be achieved, it may be incapable of keeping individu-
`als insensate to the extreme pain and discomfort associated
`with administration of the second and third drugs in
`
`lethal-injection protocols. Ibid.
`
`After the horrific execution of Clayton Lockett, who,
`notwithstanding administration of midazolam, awoke
`during his execution and appeared to be in great pain, we
`agreed to hear the case of death row inmates seeking to
`
`avoid the same fate. In Glossip, these inmates alleged
`that because midazolam is incapable of rendering prison-
`ers unconscious and insensate to pain during lethal injec-
`tion, Oklahoma’s intended use of the drug in their execu-
`——————
`2 Because “midazolam is not an analgesic drug, any painful stimulus
`applied to an inmate will generate and transmit full intensity pain
`signals to the brain without interference.” App. to Pet. for Cert. 309a.
`Arthur’s expert witness provides “a rough analogy”:
`“[I]f being sedated is like being asleep, analgesia is like wearing
`earplugs. If two people are sleeping equally deeply, but only one is
`wearing earplugs, it will be much easier to shout and wake the person
`who is not wearing earplugs. If two people are sedated to equivalent
`
`
`levels of electrical brain activity, but only one has analgesia, the person
`
`sedated without analgesia will be much more easily aroused to con-
`sciousness by the application of pain.” Ibid.
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`
`
`
`
`
`
`
`

`

`5
`
`
`
` Cite as: 580 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
`tions would violate the Eighth Amendment. The Court
`rejected this claim for two reasons.
`
`First, the Court found that the District Court had not
`clearly erred in determining that “midazolam is highly
`likely to render a person unable to feel pain during an
`execution.” Id., at ___ (slip op., at 16). Second, the Court
`held that the petitioners had failed to satisfy the novel
`requirement of pleading and proving a “known and avail-
`able alternative” method of execution. Id., at ___ (slip op.,
`at 15).
`Post-Glossip, in order to prevail in an Eighth Amend-
`ment challenge to a State’s method of execution, prisoners
`first must prove the State’s current method “entails a
`substantial risk of severe pain,” id., at ___ (slip op., at 2),
`
`and second, must “identify a known and available alterna-
`
`tive method of execution that entails a lesser risk of pain,”
`id., at ___ (slip op., at 1).
`
`
`
`
`
`
`
`II
`
`
`This case centers on whether Thomas Arthur has met
`these requirements with respect to Alabama’s lethal-
`
`injection protocol.
`
`A
`
`Alabama adopted lethal injection as its default method
`of execution in 2002. Ala. Code §15–18–82.1(a) (2011); see
`also Ex parte Borden, 60 So. 3d 940, 941 (Ala. 2007). The
`State’s capital punishment statute delegates the task of
`prescribing the drugs necessary to compound a lethal
`injection to the Department of Corrections.
`§15–18–
`
`82.1(f). Consistent with the practice in other States fol-
`lowing the national shortage of sodium thiopental and
`pentobarbital, the department has adopted a protocol
`
`involving the same three drugs considered in Glossip. See
`Brooks v. Warden, 810 F. 3d 812, 823 (CA11 2016).
`
`Perhaps anticipating constitutional challenges, Ala-
`
`
`
`
`
`

`

`6
`
`
`
` ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`bama’s legislature enacted a contingency plan: The statute
`provides that “[i]f electrocution or lethal injection is held
`to be unconstitutional . . . all persons sentenced to death
`for a capital crime shall be executed by any constitutional
`method of execution.” §15–18–82.1(c).
`B
`
`Thomas Douglas Arthur killed his paramour’s husband
`in 1982. 840 F. 3d 1268, 1272–1273 (CA11 2016). Over
`the next decade, two juries found Arthur guilty of murder,
`and each time, Arthur’s conviction was overturned on
`appeal. Ibid. After a third trial in 1992, Arthur was
`
`convicted and sentenced to death. Ibid. Since then, Ar-
`thur has been scheduled to die on six separate occasions,
`
`and each time, his execution was stayed. Id., at 1275, n. 2.
`After 34 years of legal challenges, Arthur has accepted
`that he will die for his crimes. He now challenges only
`
`how the State will be permitted to kill him.
`
`
`Arthur asserted two distinct claims in the District
`
`Court. First, Arthur asserted a facial challenge, arguing
`that midazolam is generally incapable of performing as
`
`intended during Alabama’s three-drug lethal-injection
`procedure. Second, Arthur asserted an as-applied chal-
`lenge, arguing that because of his individual health at-
`tributes, midazolam creates a substantial risk of severe
`pain for him during the procedure.
`
`The District Court considered these two claims sepa-
`rately. With respect to the facial challenge, the District
`Court ordered bifurcated proceedings, with the first hear-
`ing limited to the availability of a feasible alternative
`
`method of execution. App. to Pet. for Cert. 189a, and n. 2.
`Arthur’s initial complaint proposed a single dose either of
`pentobarbital or sodium thiopental rather than a three-
`drug protocol, but the District Court found that those
`methods were unavailable given the elimination of both
`drugs from the domestic market. Id., at 203a–205a.
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
` Cite as: 580 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
`Arthur then moved to amend his complaint to allege the
`
`firing squad as an alternative method of execution. The
`District Court denied the motion, holding that “execution
`by firing squad is not permitted by statute and, therefore,
`is not a method of execution that could be considered
`either feasible or readily implemented by Alabama at this
`time.” Id., at 241a. Because Arthur’s claim failed on this
`
`ground, the court never considered Arthur’s evidence with
`respect to midazolam, despite later observing that it was
`“impressive.” Id., at 166a.
`In a separate order, the District Court considered Ar-
`
`thur’s as-applied challenge. Arthur alleged, based on the
`
`expert opinion of Dr. Jack Strader, that “his cardiovascu-
`lar issues, combined with his age and emotional makeup,
`
`create a constitutionally unacceptable risk of pain that
`will result in a violation of the Eighth Amendment if he is
`executed under the [midazolam] protocol.” Id., at 151a.
`Echoing its rationale with respect to Arthur’s facial chal-
`lenge, the District Court found that Arthur failed to prove
`the existence of a feasible, readily available alternative.
`
`The court then turned to the question it had avoided in
`the facial challenge: whether Alabama’s lethal-injection
`protocol created a risk of serious illness or needless suffer-
`ing. But because the District Court considered the ques-
`
`tion as part of Arthur’s as-applied challenge, it focused on
`the protocol as applied to Arthur’s personal physical condi-
`tion. The court rejected Dr. Strader’s opinion that the
`dose of midazolam required by Alabama’s protocol “will
`likely induce a rapid and dangerous reduction in blood
`pressure more quickly than it results in sedation,” and
`that during this time gap, Arthur—whom he believed to
`suffer from heart disease—would suffer a painful heart
`attack. Id., at 169a. Because Dr. Strader’s experience was
`
`limited to clinical doses of midazolam, which typically
`range from 2 to 5 mg, the court concluded that he had no
`basis to extrapolate his experience to non-clinical, lethal
`
`
`
`
`
`7
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`8
`
`
`
` ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`doses, such as the 500-mg bolus required by Alabama’s
`lethal-injection protocol. Id., at 177a.
`
`The District Court expressly refused to consider the
`expert opinions that Arthur proffered as part of his facial
`challenge, noting that they “are untested in court, due to
`Arthur’s inability to provide a[n alternative] remedy in his
`facial, and now as-applied, challenges.” Id., at 167a, n. 16.
`
`
`The District Court therefore concluded that Arthur
`failed to meet the Glossip standard and entered judgment
`in favor of the State. App. to Pet. for Cert. 238a.
`C
`
`The Eleventh Circuit affirmed. In a 111-page slip opin-
`
`ion issued the day before Arthur’s scheduled execution,
`
`the court first found that “Arthur never showed Alabama’s
`current lethal injection protocol, per se or as applied to
`him, violates the Constitution.” 840 F. 3d, at 1315. The
`court based this finding on Arthur’s failure to “satisfy the
`first [Glossip] prong as to midazolam” as part of his as-
`applied challenge, ibid., and the fact that this Court “up-
`held the midazolam-based execution protocol” in Glossip,
`840 F. 3d, at 1315. Like the District Court, the Eleventh
`
`Circuit never considered the evidence Arthur introduced in
`
`support of his facial challenge to the protocol. Then, “[a]s
`an alternative and independent ground,” ibid., the Court
`of Appeals found that the firing squad is not an available
`alternative because that method is “beyond [the Depart-
`ment of Corrections’] statutory authority,” id., at 1320.
`Finally, and as yet another independent ground for deny-
`ing relief, the court held Arthur’s motion regarding the
`
`firing squad barred by the doctrine of laches. Ibid., n. 35.
`According to the Eleventh Circuit, the “known and avail-
`able” alternative requirement was made clear in Baze—
`not Glossip—and because Arthur failed to amend his
`complaint in 2008 when Baze was decided, his claim was
`barred by laches.
`
`
`
`
`
`
`
`
`
`

`

`
`
`9
`
`
`
` Cite as: 580 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
` On the day of his scheduled execution, Arthur filed a
`
`
`petition for certiorari and an application to stay his execu-
`tion. The Court granted the stay, 580 U. S. ___ (2016), but
`now denies certiorari.
`
`
`III
`
`
`A
`
`The decision below permits a State, by statute, to bar a
`
`
`death-row inmate from vindicating a right guaranteed by
`the Eighth Amendment. Under this view, even if a pris-
`oner can prove that the State plans to kill him in an intol-
`erably cruel manner, and even if he can prove that there is
`
`a feasible alternative, all a State has to do to execute him
`through an unconstitutional method is to pass a statute
`declining to authorize any alternative method. This can-
`not be right.
`
`To begin with, it contradicts the very decisions it pur-
` ports to follow—Baze and Glossip. Glossip based its
`
`“known and available alternative” requirement on the
`plurality opinion in Baze. Baze, in turn, states that “[t]o
`qualify, the alternative procedure must be feasible, readily
`implemented, and in fact significantly reduce a substan-
`tial risk of severe pain.” 553 U. S., at 52 (plurality opin-
`
`ion). The Court did not mention—or even imply—that a
`State must authorize the alternative by statute. To the
`contrary, Baze held that “[i]f a State refuses to adopt such
`an alternative in the face of these documented ad-
`vantages,” its “refusal to change its method can be viewed
`
`as ‘cruel and unusual’ under the Eighth Amendment.”
`Ibid. (emphasis added). The decision below turns this
`language on its head, holding that if the State refuses to
`
`adopt the alternative legislatively, the inquiry ends. That
`is an alarming misreading of Baze.
`
`Even more troubling, by conditioning federal constitu-
`tional rights on the operation of state statutes, the deci-
`
`sion below contravenes basic constitutional principles.
`
`
`
`

`

`10
`
`
`
`ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`The Constitution is the “supreme law of the land”—
`irrespective of contrary state laws. Art. VI, cl. 2. And for
`more than two centuries it has been axiomatic that this
`Court—not state courts or legislatures—is the final arbiter
`of the Federal Constitution. See Marbury v. Madison, 1
`Cranch 137, 177 (1803). Acting within our exclusive
`“province and duty” to “say what the law is,” ibid., we
`have interpreted the Eighth Amendment to entitle prison-
`
`ers to relief when they succeed in proving that a State’s
`
`chosen method of execution poses a substantial risk of
`severe pain and that a constitutional alternative is
`“known and available,” Glossip, 576 U. S., at ___–___ (slip
`op., at 1–2). The States have no power to override this
`constitutional guarantee. While States are free to define
`and punish crimes, “state laws respecting crimes, punish-
`ments, and criminal procedure are . . . subject to the over-
`riding provisions of the United States Constitution.”
`Payne v. Tennessee, 501 U. S. 808, 824 (1991).
`
`Equally untenable are the differing interpretations of
`the Eighth Amendment that would result from the Elev-
`enth Circuit’s rule. Under the Eleventh Circuit’s view,
`whether an inmate who will die in an intolerably cruel
`manner can obtain relief under Glossip depends not on the
`Constitution but on vagaries of state law. The outcome of
`this case, for instance, would turn on whether Arthur had
`been sentenced in Oklahoma, where state law expressly
`permits the firing squad, see Okla. Stat., Tit. 22, §1014
`(Supp. 2016), rather than in Alabama, which—according
`to the Eleventh Circuit3—does not, see Ala. Code §15–18–
`——————
`
`3I question the Eleventh Circuit’s conclusion that the statute does
`
` not authorize the firing squad as an available means of execution. In
`
`
` my view, the Alabama statute unambiguously reads as a codification of
`
`Glossip. If either of the specified methods—lethal injection or electrocu-
`tion—is declared unconstitutional, the statute authorizes the State to
`
`execute prisoners by “any constitutional method of execution.” Ala.
`Code §15–18–82.1(c) (2016) (emphasis added). The state statute
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`11
`
`
`
`
`Cite as: 580 U. S. ____ (2017)
`
`
` SOTOMAYOR, J., dissenting
`
`
`82.1. But since the very beginning of our Nation, we have
`emphasized the “necessity of uniformity” in constitutional
`interpretation “throughout the whole United States, upon
`all subjects within the purview of the constitution.” Mar-
`tin v. Hunter’s Lessee, 1 Wheat 304, 347–348 (1816) (em-
`phasis deleted). Nowhere is the need for uniformity more
`pressing than the rules governing States’ imposition of
`death.
`
`
`
`B
`The Eleventh Circuit’s alternative holdings are unavailing.
`First, the court erroneously concluded that Arthur failed
`
`to carry his burden on the first Glossip requirement—
`proving that Alabama’s midazolam-centered protocol poses
`a substantial risk of severe pain. The court used the
`District Court’s finding that Arthur failed to meet this
`prong with respect to his as-applied challenge to hold that
`Arthur’s facial challenge likewise failed. But it is undis-
`puted that Arthur put forth “impressive” evidence to
`support his facial challenge that neither the District Court
`nor the Court of Appeals considered. This evidence in-
`cluded the expert testimony of Dr. Alan Kaye, chairman of
`the Department of Anesthesiology at Louisiana State
`University’s Health Sciences Center, who found the dose
`of midazolam prescribed in Alabama’s protocol insufficient
`
`to “cure . . . the fundamental unsuitability of midazolam as
`
`the first drug in [Alabama’s lethal-injection] protocol.”
`
`App. to Pet. for Cert. 302a (emphasis added). Dr. Kaye
`
`
`
`
`
`
`
`——————
`thus permits exactly what the Court required in Glossip—if a con-
`
`demned prisoner can prove that the lethal-injection protocol presents
`an unconstitutional risk of needless suffering, he may propose an
`alternative, constitutional means of execution, which may include the
`firing squad. Even assuming, however, that the Eleventh Circuit
`properly interpreted Alabama’s statute, the question remains whether
`States may legislatively determine what the Eighth Amendment
`requires or prohibits. That question is worthy of our review.
`
`
`
`

`

`12
`
`
`
` ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`concluded that “the chemical properties of midazolam
`limit its ability to depress electrical activity in the brain.
`The
`lack of another chemical property—analgesia—
`renders midazolam incapable of maintaining even that
`limited level of depressed electrical activity under the
`undiminished pain of the second and third lethal injection
`drugs.” Id., at 311a.
`
`The court next read Glossip as categorically “uph[olding]
`the midazolam-based execution protocol.” 840 F. 3d, at
`1315. Glossip did no such thing. The majority opinion in
`
`Glossip concluded that, based on the facts presented in
`that case, “[t]he District Court did not commit clear error
`when it found that midazolam is highly likely to render a
`person unable to feel pain during an execution.” 576 U. S.,
`at ____ (slip op., at 16). The opinion made no determina-
`tion whether midazolam-centered lethal injection repre-
`sents a constitutional method of execution.
`
`Finally, the court’s laches finding faults Arthur for
`failing to act immediately after Baze, which, according to
`the panel, “made clear in 2008 . . . that a petitioner-inmate
`had the burden to show that a proffered alternative was
`‘feasible, readily implemented, and in fact significantly
`reduced a substantial risk of pain.’” 840 F. 3d, at 1320,
`n. 35 (quoting Baze, 553 U. S., at 41). But the District
`Court in this case—not to mention at least four Justices of
`this Court, see Glossip, 576 U. S., at ___–___ (SOTOMAYOR,
`J., dissenting) (slip op., at 24–27)—did not read Baze as
`requiring an alternative. See Record in Arthur v. Myers,
`No. 2:11–cv–438 (MD Ala.), Doc. 195, p. 11 (“[T]he court
`does not accept the State’s argument that [a known and
`available alternative method of execution] is a specific
`
`pleading requirement set forth by Baze that must be
`
`properly alleged before a case can survive a motion to
`dismiss”). Arthur filed a statement within 14 days of our
`decision in Glossip informing the District Court of his
`belief that our decision would impact his case, see id., Doc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

` Cite as: 580 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
` 245, and moved to amend his complaint a few weeks later,
`see id., Doc. 256.
`
`In sum, the Eleventh Circuit’s opinion rests on quick-
`sand foundations and flouts the Constitution, as well as
`the Court’s decisions in Baze and Glossip. These errors
`alone counsel in favor of certiorari.
`IV
`The decision below is all the more troubling because it
`
`
`would put an end to an ongoing national conversation—
`between the legislatures and the courts—around the
`methods of execution the Constitution tolerates. The
`meaning of the Eighth Amendment’s prohibition on cruel
`and unusual punishments “is determined not by the
`standards that prevailed when the Eighth Amendment
`was adopted in 1791” but instead derives from “‘the evolv-
`ing standards of decency that mark the progress of a
`
`maturing society.’” Kennedy v. Louisiana, 554 U. S. 407,
`419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101
`
`(1958) (plurality opinion)). Evolving standards have
`yielded a familiar cycle: States develop a method of execu-
`tion, which is generally accepted for a time. Science then
`reveals that—unknown to the previous generation—the
`States’ chosen method of execution causes unconstitutional
`
`
`levels of suffering. A new method of execution is devised,
`and the dialogue continues. The Eighth Amendment
`requires this conversation. States should not be permitted
`to silence it by statute.
`
`
`
`
`
`
`A
`From the time of the founding until the early 20th cen-
`
`tury, hanging was the preferred practice. Gardner, Execu-
`tions and Indignities—An Eighth Amendment Assessment
`of Methods of Inflicting Capital Punishment, 39 Ohio St.
`L. J. 96, 119 (1978). After several grotesque failures at
`the gallows—including slow asphyxiation and violent
`
`
`
`
`
`
`
`
`
`
`
` 13
`
`
`
`

`

`14
`
`
`
`ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`decapitation—revealed the “crude and imprecise” nature
`of the practice, Campbell v. Wood, 511 U. S. 1119, 1122
`(1994) (Blackmun, J., dissenting from denial of certiorari),
`States sought to execute condemned prisoners “‘in a less
`barbarous manner’” and settled on electrocution. See In
`re Kemmler, 136 U. S. 436, 444 (1890).
`
`
`
`New York carried out the world’s first electrocution in
`ghastly fashion,4 leading the New York Times to declare it
`“a disgrace to civilization.” See Far Worse Than Hanging,
`N. Y. Times, Aug. 7, 1890, p. 1. Electrocution nonetheless
`remained the dominant mode of execution for more than a
`century, until the specter of charred and grossly disfigured
`bodies proved too much for the public, and the courts, to
`bear.5 See, e.g., Dawson v. State, 274 Ga. 327, 335, 554
`——————
`4New York executed William Kemmler on August 6, 1890. According
`to the New York Times, “[p]robably no convicted murderer of modern
`times has been made to suffer as Kemmler suffered.” Far Worse Than
`Hanging, N. Y. Times, Aug. 7, 1890, p. 1. Witnesses recounted the
`execution:
`
`
`“After the first convulsion there was not the slightest movement of
`Kemmler’s body. . . . Then the eyes that had been momentarily turned
`
`from Kemmler’s body returned to it and gazed with horror on what they
`saw. The men rose from their chairs impulsively and groaned at the
`
`agony they felt. ‘Great God! [H]e is alive!’ [S]omeone said[.] ‘Turn on
`
`
`the current,’ said another . . . .
`
`“Again came that click as before, and again the body of the uncon-
`scious wretch in the chair became as rigid as one of bronze. It was
`
`awful, and the witnesses were so horrified by the ghastly sight that
`they could not take their eyes off it. The dynamo did not seem to run
`smoothly. The current could be heard sharply snapping. Blood began
`to appear on the face of the wretch in the chair. It stood on the face like
`
`sweat. . . .
`
`“An awful odor began to permeate the death chamber, and then, as
`though to cap the climax of this fearful sight, it was seen that the hair
`under and around the electrode on the head and the flesh under and
`around the electrode at the base of the spine was singeing. The stench
`
`was unbearable.” Ibid. (paragraph break omitted).
`5After a particularly gruesome electrocution in Florida, this Court
`
`granted certiorari on the question whether electrocution creates a
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`15
`
`
`Cite as: 580 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
`S. E. 2d 137, 144 (2001) (“[W]e hold that death by electro-
`cution, with its specter of excruciating pain and its cer-
`tainty of cooked brains and blistered bodies, violates the
`prohibition against cruel and unusual punishment”).
`
`The States then tried lethal gas. Although the gas
`chamber was initially believed to produce relatively pain-
`less death, it ultimately became clear that it exacted
`“exquisitely painful” sensations of “anxiety, panic, [and]
`
`terror,” leading courts to declare it unconstitutional. See,
`e.g., Fierro v. Gomez, 77 F. 3d 301, 308 (CA9 1996) (inter-
`
`nal quotation marks omitted).6
`Finally, States turned to a “more humane and palata-
`
`ble” method of execution: lethal injection. Denno, 63 Ohio
`St. L. J., at 92. Texas performed the first lethal injection
`in 1982 and, impressed with the apparent ease of the
`process, other States quickly followed suit. S. Banner, The
`Death Penalty: An American History 297 (2002). One
`
`prison chaplain marveled: “‘It’s extremely sanitary. . . .
`
`The guy just goes to sleep. That’s all there is to it.’” Ibid.
`
`What cruel irony that the method that appears most
`humane may turn out to be our most cruel experiment yet.
`B
`Science and experience are now revealing that, at least
`
`with respect to midazolam-centered protocols, prisoners
`executed by lethal injection are suffering horrifying deaths
`beneath a “medically sterile aura of peace.” Denno, supra,
`——————
`constitutionally unacceptable risk of physical suffering in violation of
`the Eighth Amendment, see Bryan v. Moore, 528 U. S. 960 (1999), but
`
`later dismissed the writ as improvidently granted in light of an
`amendment to the State’s execution statute that permitted prisoners to
`
` choose lethal injection rather than electrocution, see Bryan v. Moore,
` 528 U. S. 1133 (2000). See also Fla. Stat. Ann. §922.10 (West 2001).
`
`6This Court granted certiorari in Fierro, vacated the judgment, and
`remanded for consideration in light of the California Legislature’s
`adoption of lethal injection as the State’s primary method of execution.
`
`See Gomez v. Fierro, 519 U. S. 918 (1996).
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`16
`
`
`
` ARTHUR v. DUNN
`
` SOTOMAYOR, J., dissenting
`
`
`at 66. Even if we sweep aside the scientific evidence, we
`should not blind ourselves to the mounting firsthand
`evidence that midazolam is simply unable to render pris-
`oners insensate to the pain of execution. The examples
`abound.
`
`After Ohio administered midazolam during the execu-
`tion of Dennis McGuire in January 2014, he “strained
`
`against the restraints around his body, and . . . repeatedly
`gasped for air, making snorting and choking sounds for
`about 10 minutes.” Johnson, Inmate’s Death Called ‘Hor-
`rific’, Columbus Dispatch, Jan. 17, 2014, pp. A1, A10.
`
`
`The scene was much the same during Oklahoma’s
`execution of Clayton Lockett in April 2014. After execu-
`tioners administered midazolam and declared him uncon-
`
`scious, 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.” Glossip, 576
`U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 3).
`
`When Arizona executed Joseph Rudolph Wood in July
`
`
`2014 using a midazolam-based protocol, he “gulped like a
`fish on land.” Kiefer, Botched Execution, Arizona