OPINION OF ROBERTS, C.&NBSP;J. BAZE V. REES 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-5439 RALPH BAZE and THOMAS C. BOWLING, PETI- TIONERS v. JOHN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF
CORRECTIONS, et al.

															on writ of certiorari to the supreme court of
kentucky

															[April 16, 2008]

															   Chief Justice Roberts announced
the judgment of the Court and delivered an opinion, in which
Justice Kennedy and Justice Alito join.

															   Like 35 other States and the
Federal Government, Kentucky has chosen to impose capital
punishment for certain crimes. As is true with respect to each of
these States and the Federal Government, Kentucky has altered its
method of execution over time to more humane means of carrying out
the sentence. That progress has led to the use of lethal injection
by every jurisdiction that imposes the death penalty.

															   Petitioners in this case—each convicted of
double homicide—acknowledge that the lethal injection procedure, if
applied as intended, will result in a humane death. They
nevertheless contend that the lethal injection protocol is
unconstitutional under the Eighth Amendment’s ban on “cruel and
unusual punishments,” because of the risk that the protocol’s terms
might not be properly followed, resulting in significant pain. They
propose an alternative protocol, one that they concede has not been
adopted by any State and has never been tried.

															   The trial court held extensive hearings and
entered detailed Findings of Fact and Conclusions of Law. It
recognized that “[t]here are no methods of legal execution that are
satisfactory to those who oppose the death penalty on moral,
religious, or societal grounds,” but concluded that Kentucky’s
procedure “complies with the constitutional requirements against
cruel and unusual punishment.” App. 769. The State Supreme Court
affirmed. We too agree that petitioners have not carried their
burden of showing that the risk of pain from maladministration of a
concededly humane lethal injection protocol, and the failure to
adopt untried and untested alternatives, constitute cruel and
unusual punishment. The judgment below is affirmed.

															I

															A

															   By the middle of the 19th
century, “hanging was the ‘nearly universal form of execution’ in
the United States.” Campbell v. Wood , 511 U. S. 1119 (1994)
(Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton , 95 Wash. 2d 469, 492, 627
P. 2d 922, 934 (1981)); Denno, Getting to Death: Are
Executions Constitutional? 82 Iowa L. Rev. 319, 364 (1997)
(counting 48 States and Territories that employed hanging as a
method of execution). In 1888, following the recommendation of a
commission empaneled by the Governor to find “ ‘the most
humane and practical method known to modern science of carrying
into effect the sentence of death,’ ” New York became the
first State to authorize electrocution as a form of capital
punishment. Glass v. Louisiana , 471 U. S. 1080 , 1082,
and n. 4 (1985) (Brennan, J., dissenting from denial of
certiorari); Denno, supra , at 373. By 1915, 11 other
States had followed suit, motivated by the “well-grounded belief
that electrocution is less painful and more humane than hanging.” Malloy v. South Carolina , 237 U. S. 180 , 185
(1915).

															   Electrocution remained the
predominant mode of execution for nearly a century, although
several methods, including hanging, firing squad, and lethal gas
were in use at one time. Brief for Fordham University School of Law
et al. as Amici Curiae 5–9 (hereinafter Fordham
Brief). Following the 9-year hiatus in executions that ended with
our decision in Gregg v. Georgia , 428 U. S. 153 (1976),
however, state legislatures began responding to public calls to
reexamine electrocution as a means of assuring a humane death. See
S. Banner, The Death Penalty: An American History 192–193, 296–297
(2002). In 1977, legislators in Oklahoma, after consulting with the
head of the anesthesiology department at the University of Oklahoma
College of Medicine, introduced the first bill proposing lethal
injection as the State’s method of execution. See Brief for
Petitioners 4; Fordham Brief 21–22. A total of 36 States have now
adopted lethal injection as the exclusive or primary means of
implementing the death penalty, making it by far the most prevalent
method of execution in the United States.[ Footnote 1 ] It is also the method used by the Federal
Government. See 18 U. S. C. §3591 et seq. (2000 ed.
and Supp. V); App. to Brief for United States as Amicus
Curiae 1a–6a (lethal injection protocol used by the Federal
Bureau of Prisons).

															   Of these 36 States, at least 30 (including
Kentucky) use the same combination of three drugs in their lethal
injection protocols. See Workman v. Bredesen , 486
F. 3d 896, 902 (CA6 2007). The first drug, sodium thiopental
(also known as Pentathol), is a fast-acting barbiturate sedative
that induces a deep, comalike unconsciousness when given in the
amounts used for lethal injection. App. 762–763, 631–632. The
second drug, pancuronium bromide (also known as Pavulon), is a
paralytic agent that inhibits all muscular-skeletal movements and,
by paralyzing the diaphragm, stops respiration. Id., at
763. Potassium chloride, the third drug, interferes with the
electrical signals that stimulate the contractions of the heart,
inducing cardiac arrest. Ibid . The proper administration
of the first drug ensures that the prisoner does not experience any
pain associated with the paralysis and cardiac arrest caused by the
second and third drugs. Id., at 493–494, 541, 558–559.

															B

															   Kentucky replaced electrocution
with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The
Kentucky statute does not specify the drugs or categories of drugs
to be used during an execution, instead mandating that “every death
sentence shall be executed by continuous intravenous injection of a
substance or combination of substances sufficient to cause death.”
Ky. Rev. Stat. Ann. §431.220(1)(a) (West 2006). Prisoners sentenced
before 1998 have the option of electing either electrocution or
lethal injection, but lethal injection is the default if—as is the
case with petitioners—the prisoner refuses to make a choice at
least 20 days before the scheduled execution. §431.220(1)(b). If a
court invalidates Kentucky’s lethal injection method, Kentucky law
provides that the method of execution will revert to electrocution.
§431.223.

															   Shortly after the adoption of
lethal injection, officials working for the Kentucky Department of
Corrections set about developing a written protocol to comply with
the requirements of §431.220(1)(a). Kentucky’s protocol called for
the injection of 2 grams of sodium thiopental, 50 milligrams of
pancuronium bromide, and 240 milliequivalents of potassium
chloride. In 2004, as a result of this litigation, the department
chose to increase the amount of sodium thiopental from 2 grams to 3
grams. App. 762–763, 768. Between injections, members of the
execution team flush the intravenous (IV) lines with 25 milligrams
of saline to prevent clogging of the lines by precipitates that may
form when residual sodium thiopental comes into contact with
pancuronium bromide. Id., at 761, 763–764. The protocol
reserves responsibility for inserting the IV catheters to qualified
personnel having at least one year of professional experience. Id., at 984. Currently, Kentucky uses a certified
phlebotomist and an emergency medical technician (EMT) to perform
the venipunctures necessary for the catheters. Id., at
761–762. They have up to one hour to establish both primary and
secondary peripheral intravenous sites in the arm, hand, leg, or
foot of the inmate. Id., at 975–976. Other personnel are
responsible for mixing the solutions containing the three drugs and
loading them into syringes. Id. , at 761.

															   Kentucky’s execution facilities consist of the
execution chamber, a control room separated by a one-way window,
and a witness room. Id. , at 203. The warden and deputy
warden remain in the execution chamber with the prisoner, who is
strapped to a gurney. The execution team administers the drugs
remotely from the control room through five feet of IV tubing. Id., at 286. If, as determined by the warden and deputy
warden through visual inspection, the prisoner is not unconscious
within 60 seconds following the delivery of the sodium thiopental
to the primary IV site, a new 3-gram dose of thiopental is
administered to the secondary site before injecting the pancuronium
and potassium chloride. Id., at 978–979. In addition to
assuring that the first dose of thiopental is successfully
administered, the warden and deputy warden also watch for any
problems with the IV catheters and tubing.

															   A physician is present to assist in any effort
to revive the prisoner in the event of a last-minute stay of
execution. Id., at 764. By statute, however, the physician
is prohibited from participating in the “conduct of an execution,”
except to certify the cause of death. Ky. Rev. Stat. Ann.
§431.220(3). An electrocardiogram (EKG) verifies the death of the
prisoner. App. 764. Only one Kentucky prisoner, Eddie Lee Harper,
has been executed since the Commonwealth adopted lethal injection.
There were no reported problems at Harper’s execution.

															C

															   Petitioners Ralph Baze and Thomas
C. Bowling were each convicted of two counts of capital murder and
sentenced to death. The Kentucky Supreme Court upheld their
convictions and sentences on direct appeal. See Baze v. Commonwealth , 965 S. W. 2d 817, 819–820, 826 (1997),
cert. denied, 523
U. S. 1083 (1998); Bowling v. Commonwealth ,
873 S. W. 2d 175, 176–177, 182 (1993), cert. denied, 513 U. S. 862 (1994).

															   After exhausting their state and
federal collateral remedies, Baze and Bowling sued three state
officials in the Franklin Circuit Court for the Commonwealth of
Kentucky, seeking to have Kentucky’s lethal injection protocol
declared unconstitutional. After a 7-day bench trial during which
the trial court received the testimony of approximately 20
witnesses, including numerous experts, the court upheld the
protocol, finding there to be minimal risk of various claims of
improper administration of the protocol. App. 765–769. On appeal,
the Kentucky Supreme Court stated that a method of execution
violates the Eighth Amendment when it “creates a substantial risk
of wanton and unnecessary infliction of pain, torture or lingering
death.” 217 S. W. 3d 207, 209 (2006). Applying that standard,
the court affirmed. Id. , at 212.

															   We granted certiorari to determine whether
Kentucky’s lethal injection protocol satisfies the Eighth
Amendment. 551 U. S. ___ (2007). We hold that it does.

															II

															   The Eighth Amendment to the
Constitution, applicable to the States through the Due Process
Clause of the Fourteenth Amendment, see Robinson v. California , 370 U. S. 660 , 666
(1962), provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.” We begin with the principle, settled by Gregg ,
that capital punishment is constitutional. See 428 U. S., at 177
(joint opinion of Stewart, Powell, and Stevens, JJ.). It
necessarily follows that there must be a means of carrying it out.
Some risk of pain is inherent in any method of execution—no matter
how humane—if only from the prospect of error in following the
required procedure. It is clear, then, that the Constitution does
not demand the avoidance of all risk of pain in carrying out
executions.

															   Petitioners do not claim that it
does. Rather, they contend that the Eighth Amendment prohibits
procedures that create an “unnecessary risk” of pain. Brief for
Petitioners 38. Specifically, they argue that courts must evaluate
“(a) the severity of pain risked, (b) the likelihood of that pain
occurring, and (c) the extent to which alternative means are
feasible, either by modifying existing execution procedures or
adopting alternative procedures.” Ibid . Petitioners
envision that the quantum of risk necessary to make out an Eighth
Amendment claim will vary according to the severity of the pain and
the availability of alternatives, Reply Brief for Petitioners
23–24, n. 9, but that the risk must be “significant” to
trigger Eighth Amendment scrutiny, see Brief for Petitioners 39–40;
Reply Brief for Petitioners 25–26.

															   Kentucky responds that this “unnecessary risk”
standard is tantamount to a requirement that States adopt the
“ ‘least risk’ ” alternative in carrying out an
execution, a standard the Commonwealth contends will cast recurring
constitutional doubt on any procedure adopted by the States. Brief
for Respondents 29, 35. Instead, Kentucky urges the Court to
approve the “ ‘substantial risk’ ” test used by the
courts below. Id. , at 34–35.

															A

															   This Court has never invalidated
a State’s chosen procedure for carrying out a sentence of death as
the infliction of cruel and unusual punishment. In Wilkerson v. Utah , 99 U. S. 130 (1879), we
upheld a sentence to death by firing squad imposed by a territorial
court, rejecting the argument that such a sentence constituted
cruel and unusual punishment. Id. , at 134–135. We noted
there the difficulty of “defin[ing] with exactness the extent of
the constitutional provision which provides that cruel and unusual
punishments shall not be inflicted.” Id. , at 135–136.
Rather than undertake such an effort, the Wilkerson Court
simply noted that “it is safe to affirm that punishments of
torture, . . . and all others in the same line of unnecessary
cruelty, are forbidden” by the Eighth Amendment. Id. , at
136. By way of example, the Court cited cases from England in which
“terror, pain, or disgrace were sometimes superadded” to the
sentence, such as where the condemned was “embowelled alive,
beheaded, and quartered,” or instances of “public dissection in
murder, and burning alive.” Id. , at 135. In contrast, we
observed that the firing squad was routinely used as a method of
execution for military officers. Id. , at 137. What each of
the forbidden punishments had in common was the deliberate
infliction of pain for the sake of pain—“superadd[ing]” pain to the
death sentence through torture and the like.

															   We carried these principles further in In
re Kemmler , 136
U. S. 436 (1890). There we rejected an opportunity to
incorporate the Eighth Amendment against the States in a challenge
to the first execution by electrocution, to be carried out by the
State of New York. Id. , at 449. In passing over that
question, however, we observed that “[p]unishments are cruel when
they involve torture or a lingering death; but the punishment of
death is not cruel within the meaning of that word as used in the
Constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life.” Id. ,
at 447. We noted that the New York statute adopting electrocution
as a method of execution “was passed in the effort to devise a more
humane method of reaching the result.” Ibid .

															B

															   Petitioners do not claim that
lethal injection or the proper administration of the particular
protocol adopted by Kentucky by themselves constitute the cruel or
wanton infliction of pain. Quite the contrary, they concede that
“if performed properly,” an execution carried out under Kentucky’s
procedures would be “humane and constitutional.” Brief for
Petitioners 31. That is because, as counsel for petitioners
admitted at oral argument, proper administration of the first drug,
sodium thiopental, eliminates any meaningful risk that a prisoner
would experience pain from the subsequent injections of pancuronium
and potassium chloride. See Tr. of Oral Arg. 5; App. 493–494
(testimony of petitioners’ expert that, if sodium thiopental is
“properly administered” under the protocol, “[i]n virtually every
case, then that would be a humane death”).

															   Instead, petitioners claim that there is a
significant risk that the procedures will not be properly
followed—in particular, that the sodium thiopental will not be
properly administered to achieve its intended effect—resulting in
severe pain when the other chemicals are administered. Our cases
recognize that subjecting individuals to a risk of future harm—not
simply actually inflicting pain—can qualify as cruel and unusual
punishment. To establish that such exposure violates the Eighth
Amendment, however, the conditions presenting the risk must be
“ sure or very likely to cause serious illness and needless
suffering,” and give rise to “sufficiently imminent dangers.” Helling v. McKinney , 509 U. S. 25 , 33, 34–35
(1993) (emphasis added). We have explained that to prevail on such
a claim there must be a “substantial risk of serious harm,” an
“objectively intolerable risk of harm” that prevents prison
officials from pleading that they were “subjectively blameless for
purposes of the Eighth Amendment.” Farmer v. Brennan , 511 U. S. 825 , 842, 846,
and n. 9 (1994).

															   Simply because an execution method may result
in pain, either by accident or as an inescapable consequence of
death, does not establish the sort of “objectively intolerable risk
of harm” that qualifies as cruel and unusual. In Louisiana ex
rel. Francis v. Resweber , 329 U. S. 459 (1947), a
plurality of the Court upheld a second attempt at executing a
prisoner by electrocution after a mechanical malfunction had
interfered with the first attempt. The principal opinion noted that
“[a]ccidents happen for which no man is to blame,” id. , at
462, and concluded that such “an accident, with no suggestion of
malevolence,” id ., at 463, did not give rise to an Eighth
Amendment violation, id. , at 463–464.

															   As Justice Frankfurter noted in a separate
opinion based on the Due Process Clause, however, “a hypothetical
situation” involving “a series of abortive attempts at
electrocution” would present a different case. Id. , at 471
(concurring opinion). In terms of our present Eighth Amendment
analysis, such a situation—unlike an “innocent misadventure,” id ., at 470—would demonstrate an “objectively intolerable
risk of harm” that officials may not ignore. See Farmer ,
511 U. S., at 846, and n. 9. In other words, an isolated mishap
alone does not give rise to an Eighth Amendment violation,
precisely because such an event, while regrettable, does not
suggest cruelty, or that the procedure at issue gives rise to a
“substantial risk of serious harm.” Id. , at 842.

															C

															   Much of petitioners’ case rests
on the contention that they have identified a significant risk of
harm that can be eliminated by adopting alternative procedures,
such as a one-drug protocol that dispenses with the use of
pancuronium and potassium chloride, and additional monitoring by
trained personnel to ensure that the first dose of sodium
thiopental has been adequately delivered. Given what our cases have
said about the nature of the risk of harm that is actionable under
the Eighth Amendment, a condemned prisoner cannot successfully
challenge a State’s method of execution merely by showing a
slightly or marginally safer alternative.

															   Permitting an Eighth Amendment violation to be
established on such a showing would threaten to transform courts
into boards of inquiry charged with determining “best practices”
for executions, with each ruling supplanted by another round of
litigation touting a new and improved methodology. Such an approach
finds no support in our cases, would embroil the courts in ongoing
scientific controversies beyond their expertise, and would
substantially intrude on the role of state legislatures in
implementing their execution procedures—a role that by all accounts
the States have fulfilled with an earnest desire to provide for a
progressively more humane manner of death. See Bell v. Wolfish , 441 U. S. 520 , 562
(1979) (“The wide range of ‘judgment calls’ that meet
constitutional and statutory requirements are confided to officials
outside of the Judicial Branch of Government”). Accordingly, we
reject petitioners’ proposed “unnecessary risk” standard, as well
as the dissent’s “untoward” risk variation. See post , at
2, 11 (opinion of Ginsburg, J.).[ Footnote 2 ]

															   Instead, the proffered alternatives must
effectively address a “substantial risk of serious harm.” Farmer , supra, at 842. To qualify, the
alternative procedure must be feasible, readily implemented, and in
fact significantly reduce a substantial risk of severe pain. If a
State refuses to adopt such an alternative in the face of these
documented advantages, without a legitimate penological
justification for adhering to its current method of execution, then
a State’s refusal to change its method can be viewed as “cruel and
unusual” under the Eighth Amendment.[ Footnote 3 ]

															III

															   In applying these standards to
the facts of this case, we note at the outset that it is difficult
to regard a practice as “objectively intolerable” when it is in
fact widely tolerated. Thirty-six States that sanction capital
punishment have adopted lethal injection as the preferred method of
execution. The Federal Government uses lethal injection as well.
See supra , at 3–4, and n. 1. This broad consensus goes not
just to the method of execution, but also to the specific
three-drug combination used by Kentucky. Thirty States, as well as
the Federal Government, use a series of sodium thiopental,
pancuronium bromide, and potassium chloride, in varying amounts.
See supra , at 4. No State uses or has ever used the
alternative one-drug protocol belatedly urged by petitioners. This
consensus is probative but not conclusive with respect to that
aspect of the alternatives proposed by petitioners.

															   In order to meet their “heavy
burden” of showing that Kentucky’s procedure is “cruelly inhumane,” Gregg , 428 U. S., at 175 (joint opinion of Stewart,
Powell, and Stevens, JJ.), petitioners point to numerous aspects of
the protocol that they contend create opportunities for error.
Their claim hinges on the improper administration of the first
drug, sodium thiopental. It is uncontested that, failing a proper
dose of sodium thiopental that would render the prisoner
unconscious, there is a substantial, constitutionally unacceptable
risk of suffocation from the administration of pancuronium bromide
and pain from the injection of potassium chloride. See Tr. of Oral
Arg. 27. We agree with the state trial court and State Supreme
Court, however, that petitioners have not shown that the risk of an
inadequate dose of the first drug is substantial. And we reject the
argument that the Eighth Amendment requires Kentucky to adopt the
untested alternative procedures petitioners have identified.

															A

															   Petitioners contend that there is
a risk of improper administration of thiopental because the doses
are difficult to mix into solution form and load into syringes;
because the protocol fails to establish a rate of injection, which
could lead to a failure of the IV; because it is possible that the
IV catheters will infiltrate into surrounding tissue, causing an
inadequate dose to be delivered to the vein; because of inadequate
facilities and training; and because Kentucky has no reliable means
of monitoring the anesthetic depth of the prisoner after the sodium
thiopental has been administered. Brief for Petitioners 12–20.

															   As for the risk that the sodium thiopental
would be improperly prepared, petitioners contend that Kentucky
employs untrained personnel who are unqualified to calculate and
mix an adequate dose, especially in light of the omission of volume
and concentration amounts from the written protocol. Id. ,
at 45–46. The state trial court, however, specifically found that
“[i]f the manufacturers’ instructions for reconstitution of Sodium
Thiopental are followed, . . . there would be minimal risk of
improper mixing, despite converse testimony that a layperson would
have difficulty performing this task.” App. 761. We cannot say that
this finding is clearly erroneous, see Hernandez v. New York , 500 U. S. 352 , 366
(1991) (plurality opinion), particularly when that finding is
substantiated by expert testimony describing the task of
reconstituting powder sodium thiopental into solution form as
“[n]ot difficult at all. … You take a liquid, you inject it into a
vial with the powder, then you shake it up until the powder
dissolves and, you’re done. The instructions are on the package
insert.” 5 Tr. 695 (Apr. 19, 2005).

															   Likewise, the asserted problems related to the
IV lines do not establish a sufficiently substantial risk of harm
to meet the requirements of the Eighth Amendment. Kentucky has put
in place several important safeguards to ensure that an adequate
dose of sodium thiopental is delivered to the condemned prisoner.
The most significant of these is the written protocol’s requirement
that members of the IV team must have at least one year of
professional experience as a certified medical assistant,
phlebotomist, EMT, paramedic, or military corpsman. App. 984.
Kentucky currently uses a phlebotomist and an EMT, personnel who
have daily experience establishing IV catheters for inmates in
Kentucky’s prison population. Id., at 273–274; Tr. of Oral
Arg. 27–28. Moreover, these IV team members, along with the rest of
the execution team, participate in at least 10 practice sessions
per year. App. 984. These sessions, required by the written
protocol, encompass a complete walk-through of the execution
procedures, including the siting of IV catheters into volunteers. Ibid . In addition, the protocol calls for the IV team to
establish both primary and backup lines and to prepare two sets of
the lethal injection drugs before the execution commences. Id., at 975. These redundant measures ensure that if an
insufficient dose of sodium thiopental is initially administered
through the primary line, an additional dose can be given through
the backup line before the last two drugs are injected. Id., at 279–280, 337–338, 978–979.

															   The IV team has one hour to establish both the
primary and backup IVs, a length of time the trial court found to
be “not excessive but rather necessary,” id., at 762,
contrary to petitioners’ claim that using an IV inserted after any
“more than ten or fifteen minutes of unsuccessful attempts is
dangerous because the IV is almost certain to be unreliable,” Brief
for Petitioners 47. And, in any event, merely because the protocol
gives the IV team one hour to establish intravenous access does not
mean that team members are required to spend the entire hour in a
futile attempt to do so. The qualifications of the IV team also
substantially reduce the risk of IV infiltration.

															   In addition, the presence of the warden and
deputy warden in the execution chamber with the prisoner allows
them to watch for signs of IV problems, including infiltration.
Three of the Commonwealth’s medical experts testified that
identifying signs of infiltration would be “very obvious,” even to
the average person, because of the swelling that would result. App.
385–386. See id., at 353, 600–601. Kentucky’s protocol
specifically requires the warden to redirect the flow of chemicals
to the backup IV site if the prisoner does not lose consciousness
within 60 seconds. Id., at 978–979. In light of these
safeguards, we cannot say that the risks identified by petitioners
are so substantial or imminent as to amount to an Eighth Amendment
violation.

															B

															   Nor does Kentucky’s failure to
adopt petitioners’ proposed alternatives demonstrate that the
Commonwealth’s execution procedure is cruel and unusual.

															   First, petitioners contend that Kentucky could
switch from a three-drug protocol to a one-drug protocol by using a
single dose of sodium thiopental or other barbiturate. Brief for
Petitioners 51–57. That alternative was not proposed to the state
courts below.[ Footnote 4 ] As a
result, we are left without any findings on the effectiveness of
petitioners’ barbiturate-only protocol, despite scattered
references in the trial testimony to the sole use of sodium
thiopental or pentobarbital as a preferred method of execution. See
Reply Brief for Petitioners 18, n. 6.

															   In any event, the Commonwealth’s continued use
of the three-drug protocol cannot be viewed as posing an
“objectively intolerable risk” when no other State has adopted the
one-drug method and petitioners proffered no study showing that it
is an equally effective manner of imposing a death sentence. See
App. 760–761, n. 8 (“Plaintiffs have not presented any scientific
study indicating a better method of execution by lethal
injection”). Indeed, the State of Tennessee, after reviewing its
execution procedures, rejected a proposal to adopt a one-drug
protocol using sodium thiopental. The State concluded that the
one-drug alternative would take longer than the three-drug method
and that the “required dosage of sodium thiopental would be less
predictable and more variable when it is used as the sole mechanism
for producing death . . . .” Workman , 486 F. 3d, at
919 (Appendix A). We need not endorse the accuracy of those
conclusions to note simply that the comparative efficacy of a
one-drug method of execution is not so well established that
Kentucky’s failure to adopt it constitutes a violation of the
Eighth Amendment.

															   Petitioners also contend that Kentucky should
omit the second drug, pancuronium bromide, because it serves no
therapeutic purpose while suppressing muscle movements that could
reveal an inadequate administration of the first drug. The state
trial court, however, specifically found that pancuronium serves
two purposes. First, it prevents involuntary physical movements
during unconsciousness that may accompany the injection of
potassium chloride. App. 763. The Commonwealth has an interest in
preserving the dignity of the procedure, especially where
convulsions or seizures could be misperceived as signs of
consciousness or distress. Second, pancuronium stops respiration,
hastening death. Ibid . Kentucky’s decision to include the
drug does not offend the Eighth Amendment.[ Footnote 5 ]

															   Petitioners’ barbiturate-only protocol, they
contend, is not untested; it is used routinely by veterinarians in
putting animals to sleep. Moreover, 23 States, including Kentucky,
bar veterinarians from using a neuromuscular paralytic agent like
pancuronium bromide, either expressly or, like Kentucky, by
specifically directing the use of a drug like sodium pentobarbital.
See Brief for Dr. Kevin Concannon et al. as Amici
Curiae 18, n. 5. If pancuronium is too cruel for animals,
the argument goes, then it must be too cruel for the condemned
inmate. Whatever rhetorical force the argument carries, see Workman , supra, at 909 (describing the comparison
to animal euthanasia as “more of a debater’s point”), it overlooks
the States’ legitimate interest in providing for a quick, certain
death. In the Netherlands, for example, where physician-assisted
euthanasia is permitted, the Royal Dutch Society for the
Advancement of Pharmacy recommends the use of a muscle relaxant
(such as pancuronium dibromide) in addition to thiopental in order
to prevent a prolonged, undignified death. See Kimsma, Euthanasia
and Euthanizing Drugs in The Netherlands, reprinted in Drug Use in
Assisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A.
Lipman eds. 1996). That concern may be less compelling in the
veterinary context, and in any event other methods approved by
veterinarians—such as stunning the animal or severing its spinal
cord, see 6 Tr. 758–759 (Apr. 20, 2005)—make clear that veterinary
practice for animals is not an appropriate guide to humane
practices for humans.

															   Petitioners also fault the Kentucky protocol
for lacking a systematic mechanism for monitoring the “anesthetic
depth” of the prisoner. Under petitioners’ scheme, qualified
personnel would employ monitoring equipment, such as a Bispectral
Index (BIS) monitor, blood pressure cuff, or EKG to verify that a
prisoner has achieved sufficient unconsciousness before injecting
the final two drugs. The visual inspection performed by the warden
and deputy warden, they maintain, is an inadequate substitute for
the more sophisticated procedures they envision. Brief for
Petitioners 19, 58.

															   At the outset, it is important to reemphasize
that a proper dose of thiopental obviates the concern that a
prisoner will not be sufficiently sedated. All the experts who
testified at trial agreed on this point. The risks of failing to
adopt additional monitoring procedures are thus even more “remote”
and attenuated than the risks posed by the alleged inadequacies of
Kentucky’s procedures designed to ensure the delivery of
thiopental. See Hamilton v. Jones , 472 F. 3d
814, 817 (CA10 2007) (per curiam) ; Taylor v. Crawford , 487 F. 3d 1072, 1084 (CA8 2007).

															   But more than this, Kentucky’s expert
testified that a blood pressure cuff would have no utility in
assessing the level of the prisoner’s unconsciousness following the
introduction of sodium thiopental, which depresses circulation.
App. 578.    Furthermore, the medical community has
yet to endorse the use of a BIS monitor, which measures brain
function, as an indication of anesthetic awareness. American
Society of Anesthesiologists, Practice Advisory for Intraoperative
Awareness and Brain Function Monitoring, 104 Anesthesiology 847,
855 (Apr. 2006); see Brown v. Beck , 445
F. 3d 752, 754–755 (CA4 2006) (Michael, J., dissenting). The
asserted need for a professional anesthesiologist to interpret the
BIS monitor readings is nothing more than an argument against the
entire procedure, given that both Kentucky law, see Ky. Rev. Stat.
Ann. §431.220(3), and the American Society of Anesthesiologists’
own ethical guidelines, see Brief for American Society of
Anesthesiologists as Amicus Curiae 2–3, prohibit
anesthesiologists from participating in capital punishment. Nor is
it pertinent that the use of a blood pressure cuff and EKG is “the
standard of care in surgery requiring anesthesia,” as the dissent
points out. Post , at 6. Petitioners have not shown that
these supplementary procedures, drawn from a different context, are
necessary to avoid a substantial risk of suffering.

															   The dissent believes that rough-and-ready
tests for checking consciousness—calling the inmate’s name,
brushing his eyelashes, or presenting him with strong, noxious
odors—could materially decrease the risk of administering the
second and third drugs before the sodium thiopental has taken
effect. See ibid . Again, the risk at issue is already
attenuated, given the steps Kentucky has taken to ensure the proper
administration of the first drug. Moreover, the scenario the
dissent posits involves a level of unconsciousness allegedly
sufficient to avoid detection of improper administration of the
anesthesia under Kentucky’s procedure, but not sufficient to
prevent pain. See post , at 9–10. There is no indication
that the basic tests the dissent advocates can make such fine
distinctions. If these tests are effective only in determining
whether the sodium thiopental has entered the inmate’s bloodstream,
see post , at 6, the record confirms that the visual
inspection of the IV site under Kentucky’s procedure achieves that
objective. See supra , at 17.[ Footnote 6 ]

															   The dissent would continue the stay of these
executions (and presumably the many others held in abeyance pending
decision in this case) and send the case back to the lower courts
to determine whether such added measures redress an “untoward” risk
of pain. Post , at 11. But an inmate cannot succeed on an
Eighth Amendment claim simply by showing one more step the State
could take as a failsafe for other, independently adequate
measures. This approach would serve no meaningful purpose and would
frustrate the State’s legitimate interest in carrying out a
sentence of death in a timely manner. See Baze v. Parker , 371 F. 3d 310, 317 (CA6 2004) (petitioner
Baze sentenced to death in 1994); Bowling v. Parker , 138 F. Supp. 2d 821, 840 (ED Ky. 2001)
(petitioner Bowling sentenced to death in 1991).

															   Justice Stevens suggests that our opinion
leaves the disposition of other cases uncertain, see post ,
at 1, but the standard we set forth here resolves more challenges
than he acknowledges. 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. He must show that the risk is
substantial when compared to the known and available alternatives.
A State with a lethal injection protocol substantially similar to
the protocol we uphold today would not create a risk that meets
this standard.

															*  *  *

															   Reasonable people of good faith
disagree on the morality and efficacy of capital punishment, and
for many who oppose it, no method of execution would ever be
acceptable. But as Justice Frankfurter stressed in Resweber , “[o]ne must be on guard against finding in
personal disapproval a reflection of more or less prevailing
condemnation.” 329 U. S., at 471 (concurring opinion). This Court
has ruled that capital punishment is not prohibited under our
Constitution, and that the States may enact laws specifying that
sanction. “[T]he power of a State to pass laws means little if the
State cannot enforce them.” McCleskey v. Zant , 499 U. S. 467 ,
491 (1991). State efforts to implement capital punishment must
certainly comply with the Eighth Amendment, but what that Amendment
prohibits is wanton exposure to “objectively intolerable risk,” Farmer , 511 U. S., at 846, and n. 9, not simply the
possibility of pain.

															   Kentucky has adopted a method of
execution believed to be the most humane available, one it shares
with 35 other States. Petitioners agree that, if administered as
intended, that procedure will result in a painless death. The risks
of maladministration they have suggested—such as improper mixing of
chemicals and improper setting of IVs by trained and experienced
personnel—cannot remotely be characterized as “objectively
intolerable.” Kentucky’s decision to adhere to its protocol despite
these asserted risks, while adopting safeguards to protect against
them, cannot be viewed as probative of the wanton infliction of
pain under the Eighth Amendment. Finally, the alternative that
petitioners belatedly propose has problems of its own, and has
never been tried by a single State.

															   Throughout our history, whenever a method of
execution has been challenged in this Court as cruel and unusual,
the Court has rejected the challenge. Our society has nonetheless
steadily moved to more humane methods of carrying out capital
punishment. The firing squad, hanging, the electric chair, and the
gas chamber have each in turn given way to more humane methods,
culminating in today’s consensus on lethal injection. Gomez v. United States Dist. Court for Northern Dist.
of Cal. , 503 U.
S. 653 , 657 (1992) (Stevens, J., dissenting); App. 755. The
broad framework of the Eighth Amendment has accommodated this
progress toward more humane methods of execution, and our approval
of a particular method in the past has not precluded legislatures
from taking the steps they deem appropriate, in light of new
developments, to ensure humane capital punishment. There is no
reason to suppose that today’s decision will be any
different.[ Footnote 7 ]

															   The judgment below concluding that Kentucky’s
procedure is consistent with the Eighth Amendment is, accordingly,
affirmed.

															It is so ordered. Footnote 1 Twenty-seven of the 36 States that currently
provide for capital punishment require execution by lethal
injection as the sole method. See Ariz. Rev. Stat. Ann. §13–704
(West 2001); Ark. Code Ann. §5–4–617 (2006); Colo. Rev. Stat. Ann.
§18–1.3–1202 (2007); Conn. Gen. Stat. §54–100 (2007); Del. Code
Ann., Tit. 11, §4209 (2006 Supp.); Ga. Code Ann. §17–10–38 (2004);
Ill. Comp. Stat., ch. 725, §5/119–5 (West 2006); Ind. Code
§35–38–6–1 (West 2004); Kan. Stat. Ann. §22–4001 (2006 Cum. Supp.);
Ky. Rev. Stat. Ann. §431.220 (West 2006); La. Stat. Ann. §15:569
(West 2005); Md. Crim. Law Code Ann. §2–303 (Lexis Supp. 2007);
Miss. Code Ann. §99–19–51 (2007); Mont. Code Ann. §46–19–103
(2007); Nev. Rev. Stat. §176.355 (2007); N. J. Stat. Ann.
§2C:49–2 (West 2007) (repealed Dec. 17, 2007); N. M. Stat.
Ann. §31–14–11 (2000); N. C. Gen. Stat. Ann. §15–187 (Lexis
2007); N. Y. Correc. Law Ann. §658 (West 2003) (held
unconstitutional in People v. LaValle , 3
N. Y. 3d 88, 130–131, 817 N. E. 2d 341, 367 (2004)); Ohio
Rev. Code Ann. §2949.22 (Lexis 2006); Okla. Stat., Tit. 22, §1014
(West 2001); Ore. Rev. Stat. §137.473 (2003); Pa. Stat. Ann., Tit.
61, §3004 (Purdon 1999); S. D. Codified Laws §23A–27A–32
(Supp. 2007); Tenn. Code Ann. §40–23–114 (2006); Tex. Code Crim.
Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann.
§77–18–5.5 (Lexis Supp. 2007); Wyo. Stat. Ann. §7–13–904 (2007).
Nine States allow for lethal injection in addition to an
alternative method, such as electrocution, see Ala. Code §§15–18–82
to 82.1 (Supp. 2007); Fla. Stat. §922.105 (2006); S. C. Code
Ann. §24–3–530 (2007); Va. Code Ann. §53.1–234 (Lexis Supp. 2007),
hanging, see N. H. Rev. Stat. Ann. §630:5 (2007); Wash. Rev.
Code §10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. §3604
(West 2000); Mo. Rev. Stat. §546.720 (2007 Cum. Supp.), or firing
squad, see Idaho Code §19–2716 (Lexis 2004). Nebraska is the only
State whose statutes specify electrocution as the sole method of
execution, see Neb. Rev. Stat. §29–2532 (1995), but the Nebraska
Supreme Court recently struck down that method under the Nebraska
Constitution, see State v. Mata , No. S–05–1268,
2008 WL 351695, *40 (2008).

															   Although it is undisputed that the States
using lethal injection adopted the protocol first developed by
Oklahoma without significant independent review of the procedure,
it is equally undisputed that, in moving to lethal injection, the
States were motivated by a desire to find a more humane alternative
to then-existing methods. See Fordham Brief 2–3. In this regard,
Kentucky was no different. See id. , at 29–30 (quoting
statement by the State Representative who sponsored the bill to
replace electrocution with lethal injection in Kentucky: “if we are
going to do capital punishment, it needs to be done in the most
humane manner” (internal quotation marks omitted)). Footnote 2 The difficulties inherent in such approaches
are exemplified by the controversy surrounding the study of lethal
injection published in the April 2005 edition of the British
medical journal the Lancet. After examining thiopental
concentrations in toxicology reports based on blood samples drawn
from 49 executed inmates, the study concluded that “most of the
executed inmates had concentrations that would not be expected to
produce a surgical plane of anaesthesia, and 21 (43%) had
concentrations consistent with consciousness.” Koniaris, Zimmers,
Lubarsky, & Sheldon, Inadequate Anaesthesia in Lethal Injection
for Execution, 365 Lancet 1412, 1412–1413. The study was widely
cited around the country in motions to stay executions and briefs
on the merits. See, e.g., Denno, The Lethal Injection
Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford.
L. Rev. 49, 105, n. 366 (2007) (collecting cases in which
claimants cited the Lancet study). But shortly after the Lancet
study appeared, peer responses by seven medical researchers
criticized the methodology supporting the original conclusions. See
Groner, Inadequate Anaesthesia in Lethal Injection for Execution,
366 Lancet 1073–1074 (Sept. 2005). These researchers noted that
because the blood samples were taken “several hours to days after”
the inmates’ deaths, the postmortem concentrations of thiopental—a
fat-soluble compound that passively diffuses from blood into
tissue—could not be relied on as accurate indicators for
concentrations during life. Id. , at 1073. The authors of
the original study responded to defend their methodology. Id. , at 1074–1076. See also post , at 2–4 (Breyer,
J., concurring in judgment).

															   We do not purport to take sides in this
dispute. We cite it only to confirm that a “best practices”
approach, calling for the weighing of relative risks without some
measure of deference to a State’s choice of execution procedures,
would involve the courts in debatable matters far exceeding their
expertise. Footnote 3 Justice Thomas agrees that courts have
neither the authority nor the expertise to function as boards of
inquiry determining best practices for executions, see post , at 9 (opinion concurring in judgment) (quoting this
opinion); post , at 13, but contends that the standard we
adopt inevitably poses such concerns. In our view, those concerns
are effectively addressed by the threshold requirement reflected in
our cases of a “ ‘substantial risk of serious harm’ ” or
an “ ‘objectively intolerable risk of harm,’ ” see supra , at 11, and by the substantive requirements in the
articulated standard. Footnote 4 Petitioners did allude to an “alternative
chemical or combination of chemicals” that could replace Kentucky’s
three-drug protocol in their post-trial brief, see App. 684, but
based on the arguments presented there, it is clear they intended
to refer only to other, allegedly less painful drugs that could
substitute for potassium chloride as a heart-stopping agent, see id., at 701. Likewise, the only alternatives to the
three-drug protocol presented to the Kentucky Supreme Court were
those that replaced potassium chloride with other drugs for
inducing cardiac arrest, or that omitted pancuronium bromide, or
that added an analgesic to relieve pain. See Brief for Appellants
in No. 2005–SC–00543, pp. 38, 39, 40. Footnote 5 Justice Stevens’s conclusion that the risk
addressed by pancuronium bromide is “vastly outweighed” by the risk
of pain at issue here, see post , at 3 (opinion concurring
in judgment), depends, of course, on the magnitude of the risk of
such pain. As explained, that risk is insignificant in light of the
safeguards Kentucky has adopted. Footnote 6 Resisting this point, the dissent rejects the
expert testimony that problems with the intravenous administration
of sodium thiopental would be obvious, see post , at 10,
testimony based not only on the pain that would result from
injecting the first drug into tissue rather than the vein, see App.
600–601, but also on the swelling that would occur, see id. , at 353. See also id. , at 385–386. Neither of
these expert conclusions was disputed below. Footnote 7 We do not agree with Justice Stevens that
anything in our opinion undermines or remotely addresses the
validity of capital punishment. See post , at 11. The fact
that society has moved to progressively more humane methods of
execution does not suggest that capital punishment itself no longer
serves valid purposes; we would not have supposed that the case for
capital punishment was stronger when it was imposed predominantly
by hanging or electrocution. ALITO, J., CONCURRING BAZE V. REES 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-5439 RALPH BAZE and THOMAS C. BOWLING, PETI- TIONERS v. JOHN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF
CORRECTIONS, et al.

															on writ of certiorari to the supreme court of
kentucky

															[April 16, 2008]

															   Justice Alito, concurring.

															   I join the plurality opinion but
write separately to explain my view of how the holding should be
implemented. The opinion concludes that “a State’s refusal to
change its method [of execution] can be viewed as ‘cruel and
unusual’ under the Eighth Amendment” if the State, “without a
legitimate penological justification,” rejects an alternative
method that is “feasible” and “readily” available and that would
“significantly reduce a substantial risk of severe pain.” Ante , at 13. Properly understood, this standard will not,
as Justice Thomas predicts, lead to litigation that enables “those
seeking to abolish the death penalty … to embroil the States in
never-ending litigation concerning the adequacy of their execution
procedures.” Post , at 12 (opinion concurring in
judgment).

															I

															   As the plurality opinion notes,
the constitutionality of capital punishment is not before us in
this case, and therefore we proceed on the assumption that the
death penalty is constitutional. Ante , at 8. From that
assumption, it follows that there must be a constitutional means of
carrying out a death sentence.

															   We also proceed in this case on
the assumption that lethal injection is a constitutional means of
execution. See Gregg v . Georgia , 428 U. S. 153 , 175
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)
(“[I]n assessing a punishment selected by a democratically elected
legislature against the constitutional measure, we presume its
validity”). Lethal injection was adopted by the Federal Government
and 36 States because it was thought to be the most humane method
of execution, and petitioners here do not contend that lethal
injection should be abandoned in favor of any of the methods that
it replaced—execution by electric chair, the gas chamber, hanging,
or a firing squad. Since we assume for present purposes that lethal
injection is constitutional, the use of that method by the Federal
Government and the States must not be blocked by procedural
requirements that cannot practicably be satisfied.

															   Prominent among the practical constraints that
must be taken into account in considering the feasibility and
availability of any suggested modification of a lethal injection
protocol are the ethical restrictions applicable to medical
professionals. The first step in the lethal injection protocols
currently in use is the anesthetization of the prisoner. If this
step is carried out properly, it is agreed, the prisoner will not
experience pain during the remainder of the procedure. Every day,
general anesthetics are administered to surgical patients in this
country, and if the medical professionals who participate in these
surgeries also participated in the anesthetization of prisoners
facing execution by lethal injection, the risk of pain would be
minimized. But the ethics rules of medical professionals—for
reasons that I certainly do not question here—prohibit their
participation in executions.

															   Guidelines issued by the American Medical
Association (AMA) state that “[a]n individual’s opinion on capital
punishment is the personal moral decision of the individual,” but
that “[a] physician, as a member of a profession dedicated to
preserving life when there is hope of doing so, should not be a
participant in a legally authorized execution.” AMA, Code of
Medical Ethics, Policy E–2.06 Capital Punishment (2000), online at
http://www.ama-assn.org/
ama1/pub/upload/mm/369/e206capitalpunish.pdf (all Internet
materials as visited Apr. 14, 2008, and available in Clerk of
Court’s case file). The guidelines explain:

															“Physician participation in an execution includes,
but is not limited to, the following actions: prescribing or
administering tranquilizers and other psychotropic agents and
medications that are part of the execution procedure; monitoring
vital signs on site or remotely (including monitoring
electrocardiograms); attending or observing an execution as a
physician; and rendering of technical advice regarding execution.” Ibid. The head of ethics at the AMA
has reportedly opined that “[e]ven helping to design a more humane
protocol would disregard the AMA code.” Harris, Will Medics’ Qualms
Kill the Death Penalty? 441 Nature 8–9 (May 4, 2006). The American Nurses Association (ANA)
takes the position that participation in an execution “is a breach
of the ethical traditions of nursing, and the Code for
Nurses .” ANA, Position Statement: Nurses’ Participation in
Capital Punishment (1994), online at http://nursingworld.org/Main
MenuCategories  /HealthcareandPolicyIssues  /ANAPosition
StatementsEthicsandHumanRights.aspx. This means, the ANA explains,
that a nurse must not “take part in assessment, supervision or
monitoring of the procedure or the prisoner; procuring, prescribing
or preparing medications or solutions; inserting the intravenous
catheter; injecting the lethal solution; and attending or
witnessing the execution as a nurse.” Ibid. The National Association of Emergency Medical
Technicians (NAEMT) holds that “[p]articipation in capital
punishment is inconsistent with the ethical precepts and goals of
the [Emergency Medical Services] profession.” NAEMT, Position
Statement on EMT and Paramedic Participa- tion in Capital
Punishment (June 9, 2006), online at
http://www.naemt.org/aboutNAEMT/capitalpunishment.htm The NAEMT’s
Position Statement advises that emergency medical technicians and
paramedics should refrain from the same activities outlined in the
ANA statement. Ibid. Recent litigation in California has
demonstrated the effect of such ethics rules. Michael Morales, who
was convicted and sentenced to death for a 1981 murder, filed a
federal civil rights action challenging California’s lethal
injection protocol, which, like Kentucky’s, calls for the
sequential administration of three drugs: sodium pentothal,
pancuronium bromide, and potassium chloride. The District Court
enjoined the State from proceeding with the execution unless it
either (1) used only sodium pentothal or another barbiturate or (2)
ensured that an anesthesiologist was present to ensure that Morales
remained unconscious throughout the process. Morales v . Hickman , 415 F. Supp. 2d 1037, 1047 (ND Cal.
2006). The Ninth Circuit affirmed the District Court’s order, Morales v . Hickman , 438 F. 3d 926, 931
(2006), and the State arranged for two anesthesiologists to be
present for the execution. However, they subsequently concluded
that “they could not proceed for reasons of medical ethics,” Morales v . Tilton , 465 F. Supp. 2d 972, 976
(ND Cal. 2006), and neither Morales nor any other prisoner in
California has since been executed, see Denno, The Lethal Injection
Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford.
L. Rev. 49 (2007).

															   Objections to features of a lethal injection
protocol must be considered against the backdrop of the ethics
rules of medical professionals and related practical constraints.
Assuming, as previously discussed, that lethal injection is not
unconstitutional per se , it follows that a
suggested modification of a lethal injection protocol cannot be
regarded as “feasible” or “readily” available if the modification
would require participation—either in carrying out the execution or
in training those who carry out the execution—by persons whose
professional ethics rules or traditions impede their
participation.

															II

															   In order to show that a
modification of a lethal injection protocol is required by the
Eighth Amendment, a prisoner must demonstrate that the modification
would “ significantly reduce a substantial risk of severe pain.” Ante , at 13 (emphasis added).
Showing merely that a modification would result in some reduction
in risk is insufficient. Moreover, an inmate should be required to
do more than simply offer the testimony of a few experts or a few
studies. Instead, an inmate challenging a method of execution
should point to a well-established scientific consensus. Only if a
State refused to change its method in the face of such evidence
would the State’s conduct be comparable to circumstances that the
Court has previously held to be in violation of the Eighth
Amendment. See Farmer v . Brennan , 511 U. S. 825 , 836
(1994).

															   The present case well illustrates
the need for this type of evidence. Although there has been a
proliferation of litigation challenging current lethal injection
protocols, evidence regarding alleged defects in these protocols
and the supposed advantages of alternatives is strikingly haphazard
and unreliable. As The Chief Justice and Justice Breyer both note,
the much-discussed Lancet article, Koniaris, Zimmers, Lubarsky,
& Sheldon, Inadequate Anaesthesia in Lethal Injection for
Execution, 365 Lancet 1412 (Apr. 2005), that prompted criticism of
the three-drug protocol has now been questioned, see Groner,
Inadequate Anaesthesia in Lethal Injection for Execution, 366
Lancet 1073 (Sept. 2005). And the lack of clear guidance in the
currently available scientific literature is dramatically
illustrated by the conclusions reached by petitioners and by
Justice Stevens regarding what they view as superior alternatives
to the three-drug protocol.

															   Petitioners’ chief argument is that Kentucky’s
procedure violates the Eighth Amendment because it does not employ
a one-drug protocol involving a lethal dose of an anesthetic. By
“relying … on a lethal dose of an anesthetic,” petitioners contend,
Kentucky “would virtually eliminate the risk of pain.” Brief for
Petitioners 51. Petitioners point to expert testimony in the trial
court that “a three-gram dose of thiopental would cause death
within three minutes to fifteen minutes.” Id ., at 54,
n. 16.

															   The accuracy of that testimony is not
universally accepted. Indeed, the medical authorities in the
Netherlands, where assisted suicide is legal, have recommended
against the use of a lethal dose of a barbiturate. An amicus supporting petitioners , Dr. Robert D.
Truog, Professor of Medical Ethics and Anesthesiology at Harvard
Medical School, has made the following comments about the use of a
lethal dose of a barbiturate:

															   “A number of experts have said
that 2 or 3 or 5 g[rams] of pentothal is absolutely going to be
lethal. The fact is that, at least in this country, none of us have
any experience with this… .

															   “If we go to Holland, where euthanasia is
legal, and we look at a study from 2000 of 535 cases of euthanasia,
in 69% of those cases, they used a paralytic agent. Now, what do
they know that we haven’t figured out yet? I think what they know
is that it’s actually very difficult to kill someone with just a
big dose of a barbiturate. And, in fact, they report that in 6% of
those cases, there were problems with completion. And in I think
five of those, the person actually woke up, came back out of coma.”
Perspective Roundtable: Physicians and Execution—Highlights from a
Discussion of Lethal Injection, 358 New England J. Med. 448
(2008).

															   Justice Stevens does not advocate
a one-drug protocol but argues that “States wishing to decrease the
risk that future litigation will delay executions or invalidate
their protocols would do well to reconsider their continued use of
pancuronium bromide” in the second step of the three-drug
protocol.* Post , at 8 (opinion concurring in judgment).
But this very drug, pancuronium bromide, is recommended by the
Royal Dutch Society for the Advancement of Pharmacy as the second
of the two drugs to be used in cases of euthanasia. See Kimsma,
Euthanasia and Euthanizing Drugs in The Netherlands, reprinted in
Drug Use in Assisted Suicide and Euthanasia 193, 200, 204 (M.
Battin & A. Lipman eds. 1996).

															   My point in citing the Dutch study is not that
a multi-drug protocol is in fact better than a one-drug protocol or
that it is advisable to use pancuronium bromide. Rather, my point
is that public policy on the death penalty, an issue that stirs
deep emotions, cannot be dictated by the testimony of an expert or
two or by judicial findings of fact based on such testimony.

															III

															   The seemingly endless proceedings
that have characterized capital litigation during the years
following Gregg are well documented. In 1989, the Report
of the Judicial Conference’s Ad Hoc Committee on Federal
Habeas Corpus in Capital Cases, chaired by Justice Powell, noted
the lengthy delays produced by collateral litigation in death
penalty cases. See Committee Report and Proposal 2–4. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was
designed to address this problem. See, e.g. , Woodford v. Garceau , 538 U. S. 202 , 206
(2003) (“Congress enacted AEDPA to reduce delays in the execution
of state and federal criminal sentences, particularly in capital
cases …” (citing Williams v. Taylor , 529 U. S. 362 , 386
(2000) (opinion of Stevens, J.))); H. R. Rep. No. 104–23, p. 8
(1995) (stating that AEDPA was “designed to curb the abuse of the
habeas corpus process, and particularly to address the problem of
delay and repetitive litigation in capital cases”).

															   Misinterpretation of the standard
set out in the plurality opinion or adoption of the standard
favored by the dissent and Justice Breyer would create a grave
danger of extended delay. The dissenters and Justice Breyer would
hold that the protocol used in carrying out an execution by lethal
injection violates the Eighth Amendment if it creates an
“ untoward , readily avoidable risk of inflicting severe and
unnecessary pain.” See post , at 11 (Ginsburg, J.,
dissenting) (emphasis added); post , at 1 (Breyer, J.,
concurring in judgment). Determining whether a risk is “untoward,”
we are told, requires a weighing of three factors—the severity of
the pain that may occur, the likelihood of this pain, and the
availability of alternative methods. Post , at 4 (Ginsburg,
J., dissenting). We are further informed that “[t]he three factors
are interrelated; a strong showing on one reduces the importance of
others.” Ibid. An “untoward” risk is presumably a risk that
is “unfortunate” or “marked by or causing trouble or unhappiness.”
Webster’s Third New International Dictionary 2513 (1971); Random
House Dictionary of the English Language 1567 (1967). This vague
and malleable standard would open the gates for a flood of
litigation that would go a long way toward bringing about the end
of the death penalty as a practical matter. While I certainly do
not suggest that this is the intent of the Justices who favor this
test, the likely consequences are predictable.

															   The issue presented in this case—the
constitutionality of a method of execution—should be kept
separate from the controversial issue of the death penalty itself.
If the Court wishes to reexamine the latter issue, it should do so
directly, as Justice Stevens now suggests. Post , at 12.
The Court should not produce a de facto ban on
capital punishment by adopting method-of-execution rules that lead
to litigation gridlock.

															* In making this recommendation, he states
that “[t]here is a general understanding among veterinarians that
the risk of pain is sufficiently serious that the use of [this]
drug should be proscribed when an animal’s life is being
terminated.” Post , at 1-2. But the American Veterinary
Medical Association (AVMA) guidelines take pains to point out that
the Association’s guidelines should not be interpreted as
commenting on the execution of humans by lethal injection. AVMA,
Guidelines on Euthanasia (June 2007), online at
http://avma.org/issues/ animal_welfare/euthanasia.pdf. STEVENS, J., CONCURRING IN JUDGMENT BAZE V. REES 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-5439 RALPH BAZE and THOMAS C. BOWLING, PETI- TIONERS v. JOHN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF
CORRECTIONS, et al.

															on writ of certiorari to the supreme court of
kentucky

															[April 16, 2008]

															   Justice Stevens, concurring in
the judgment.

															   When we granted certiorari in
this case, I assumed that our decision would bring the debate about
lethal injection as a method of execution to a close. It now seems
clear that it will not. The question whether a similar three-drug
protocol may be used in other States remains open, and may well be
answered differently in a future case on the basis of a more
complete record. Instead of ending the controversy, I am now
convinced that this case will generate debate not only about the
constitutionality of the three-drug protocol, and specifically
about the justification for the use of the paralytic agent,
pancuronium bromide, but also about the justification for the death
penalty itself.

															I

															   Because it masks any outward sign
of distress, pancuronium bromide creates a risk that the inmate
will suffer excruciating pain before death occurs. There is a
general understanding among veterinarians that the risk of pain is
sufficiently serious that the use of the drug should be proscribed
when an animal’s life is being terminated.[ Footnote 1 ] As a result of this understanding among
knowledgeable professionals, several States—including Kentucky—have
enacted legislation prohibiting use of the drug in animal
euthanasia. See 2 Ky. Admin. Regs., tit. 201, ch. 16:090, §5(1)
(2004).[ Footnote 2 ] It is
unseemly—to say the least—that Kentucky may well kill petitioners
using a drug that it would not permit to be used on their pets.

															   Use of pancuronium bromide is
particularly disturbing because—as the trial court specifically
found in this case—it serves “no therapeutic purpose.” App. 763.
The drug’s primary use is to prevent involuntary muscle movements,
and its secondary use is to stop respiration. In my view, neither
of these purposes is sufficient to justify the risk inherent in the
use of the drug.

															   The plurality believes that preventing
involuntary movement is a legitimate justification for using
pancuronium bromide because “[t]he Commonwealth has an interest in
preserving the dignity of the procedure, especially where
convulsions or seizures could be misperceived as signs of
consciousness or distress.” Ante , at 19. This is a
woefully inadequate justification. Whatever minimal interest there
may be in ensuring that a condemned inmate dies a dignified death,
and that witnesses to the execution are not made uncomfortable by
an incorrect belief (which could easily be corrected) that the
inmate is in pain, is vastly outweighed by the risk that the inmate
is actually experiencing excruciating pain that no one can
detect.[ Footnote 3 ] Nor is
there any necessity for pancuronium bromide to be included in the
cocktail to inhibit respiration when it is immediately followed by
potassium chloride, which causes death quickly by stopping the
inmate’s heart.

															   Moreover, there is no nationwide endorsement
of the use of pancuronium bromide that merits any special
presumption of respect. While state legislatures have approved
lethal injection as a humane method of execution, the majority have
not enacted legislation specifically approving the use of
pancuronium bromide, or any given combination of drugs.[ Footnote 4 ] And when the Colorado
Legislature focused on the issue, it specified a one-drug protocol
consisting solely of sodium thiopental. See Colo. Rev. Stat. Ann.
§18–1.3–1202 (2007).[ Footnote
5 ] In the majority of States that use the three-drug protocol,
the drugs were selected by unelected Department of Correction
officials with no specialized medical knowledge and without the
benefit of expert assistance or guidance. As such, their drug
selections are not entitled to the kind of deference afforded
legislative decisions.

															   Nor should the failure of other state
legislatures, or of Congress, to outlaw the use of the drug on
condemned prisoners be viewed as a nationwide endorsement of an
unnecessarily dangerous practice. Even in those States where the
legislature specifically approved the use of a paralytic agent,
review of the decisions that led to the adoption of the three-drug
protocol has persuaded me that they are the product of
“ ‘administrative convenience’ ” and a “stereotyped
reaction” to an issue, rather than a careful analysis of relevant
considerations favoring or disfavoring a conclusion. See Mathews v. Lucas, 427 U. S. 495 , 519,
520–521 (1976) (Stevens, J., dissenting). Indeed, the trial court
found that “the various States simply fell in line” behind
Oklahoma, adopting the protocol without any critical analysis of
whether it was the best available alternative.[ Footnote 6 ] App. 756; see also post, at
5 (Ginsburg, J., dissenting).

															   New Jersey’s experience with the creation of a
lethal injection protocol is illustrative. When New Jersey restored
the death penalty in 1983, its legislature “fell in line” and
enacted a statute that called for inmates to be executed by
“continuous, intravenous administration until the person is dead of
a lethal quantity of an ultrashort-acting barbiturate in
combination with a chemical paralytic agent in a quantity
sufficient to cause death.” N. J. Stat. Ann. §2C:49–2 (West
2005). New Jersey Department of Corrections (DOC) officials,
including doctors and administrators, immediately expressed
concern. The Capital Sentencing Unit’s chief doctor, for example,
warned the Assistant Commissioner that he had “ ‘concerns … in
regard to the chemical substance classes from which the lethal
substances may be selected.’ ” Edwards, New Jersey’s Long
Waltz With Death, 170 N. J. L. J. 657, 673
(2002).[ Footnote 7 ] Based on
these concerns, the former DOC Commissioner lobbied the legislature
to amend the lethal injection statute to provide DOC with
discretion to select more humane drugs: “ ‘[We wanted] a
generic statement, like “drugs to be determined and identified by
the commissioner, or the attorney general, or the Department of
Health” ’… . ‘Who knew what the future was going to
bring?’ ” Ibid. And these concerns likely motivated
the DOC’s decision to adopt a protocol that omitted pancuronium
bromide—despite the legislature’s failure to act on the proposed
amendment. 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,
117–118, 233 (2002) (explaining that the New Jersey protocol in
effect in 2002 called for use of a two-drug cocktail consisting of
sodium thiopental and potassium chloride).

															   Indeed, DOC officials seemed to harbor the
same concerns when they undertook to revise New Jersey’s lethal
injection protocol in 2005. At a public hearing on the proposed
amendment, the DOC Supervisor of Legal and Legislative Affairs told
attendees that the drugs to be used in the lethal injection
protocol were undetermined:

															“Those substances have not been determined at this
point because when and if an execution is scheduled the [DOC] will
be doing research and determining the state-of-the-art drugs at
that point in time … . We have not made a decision on which
specific drugs because we will have several months once we know
that somebody is going to be executed and it will give us the
opportunity at that point to decide which would be the most
humane.

															   “And things change. We understand that the
state-of-the-art is changing daily so to say we are going to use
something today when something may be more humane becomes known
later wouldn’t make sense for us.” Tr. of Public Hearing on
Proposed Amendments to the New Jersey Lethal Injection Protocol 36
(Feb. 4, 2005).

															   It is striking that when this
state agency—with some specialized medical knowledge and with the
benefit of some expert assistance and guidance—focused on the
issue, it disagreed with the legislature’s “stereotyped reaction,” Mathews, 427 U. S., at 520, 521 (Stevens, J., dissenting),
and specified a two-drug protocol that omitted pancuronium
bromide.[ Footnote 8 ]

															   In my view, therefore, States wishing to
decrease the risk that future litigation will delay executions or
invalidate their protocols would do well to reconsider their
continued use of pancuronium bromide.[ Footnote 9 ]

															II

															   The thoughtful opinions written
by The Chief Justice and by Justice Ginsburg have persuaded me that
current decisions by state legislatures, by the Congress of the
United States, and by this Court to retain the death penalty as a
part of our law are the product of habit and inattention rather
than an acceptable deliberative process that weighs the costs and
risks of administering that penalty against its identifiable
benefits, and rest in part on a faulty assumption about the
retributive force of the death penalty.

															   In Gregg v. Georgia , 428 U. S. 153 (1976), we
explained that unless a criminal sanction serves a legitimate
penological function, it constitutes “gratuitous infliction of
suffering” in violation of the Eighth Amendment. We then identified
three societal purposes for death as a sanction: incapacitation,
deterrence, and retribution. See id., at 183, and
n. 28 (joint opinion of Stewart, Powell, and Stevens, JJ.). In
the past three decades, however, each of these rationales has been
called into question.

															   While incapacitation may have been a
legitimate rationale in 1976, the recent rise in statutes providing
for life imprisonment without the possibility of parole
demonstrates that incapacitation is neither a necessary nor a
sufficient justification for the death penalty.[ Footnote 10 ] Moreover, a recent poll indicates
that support for the death penalty drops significantly when life
without the possibility of parole is presented as an alternative
option.[ Footnote 11 ] And the
available sociological evidence suggests that juries are less
likely to impose the death penalty when life without parole is
available as a sentence.[ Footnote 12 ]

															   The legitimacy of deterrence as an acceptable
justification for the death penalty is also questionable, at best.
Despite 30 years of empirical research in the area, there remains
no reliable statistical evidence that capital punishment in fact
deters potential offenders.[ Footnote 13 ] In the absence of such evidence, deterrence
cannot serve as a sufficient penological justification for this
uniquely severe and irrevocable punishment.

															   We are left, then, with retribution as the
primary rationale for imposing the death penalty. And indeed, it is
the retribution rationale that animates much of the remaining
enthusiasm for the death penalty.[ Footnote 14 ] As Lord Justice Denning argued in 1950,
“ ‘some crimes are so outrageous that society insists on
adequate punishment, because the wrong-doer deserves it,
irrespective of whether it is a deterrent or not.’ ” See Gregg, 428 U. S., at 184, n. 30. Our Eighth Amendment
jurisprudence has narrowed the class of offenders eligible for the
death penalty to include only those who have committed outrageous
crimes defined by specific aggravating factors. It is the cruel
treatment of victims that provides the most persuasive arguments
for prosecutors seeking the death penalty. A natural response to
such heinous crimes is a thirst for vengeance.[ Footnote 15 ]

															   At the same time, however, as the thoughtful
opinions by The Chief Justice and Justice Ginsburg make pellucidly
clear, our society has moved away from public and painful
retribution towards ever more humane forms of punishment.
State-sanctioned killing is therefore becoming more and more
anachronistic. In an attempt to bring executions in line with our
evolving standards of decency, we have adopted increasingly less
painful methods of execution, and then declared previous methods
barbaric and archaic. But by requiring that an execution be
relatively painless, we necessarily protect the inmate from
enduring any punishment that is comparable to the suffering
inflicted on his victim.[ Footnote 16 ] This trend, while appropriate and required
by the Eighth Amendment’s prohibition on cruel and unusual
punishment, actually undermines the very premise on which public
approval of the retribution rationale is based. See, e.g., Kaufman-Osborn, Regulating Death: Capital Punishment and the Late
Liberal State, 111 Yale L. J. 681, 704 (2001) (explaining that
there is “a tension between our desire to realize the claims of
retribution by killing those who kill, and … a method [of
execution] that, because it seems to do no harm other than killing,
cannot satisfy the intuitive sense of equivalence that informs this
conception of justice”); A. Sarat, When the State Kills: Capital
Punishment and the American Condition 60–84 (2001).

															   Full recognition of the diminishing force of
the principal rationales for retaining the death penalty should
lead this Court and legislatures to reexamine the question recently
posed by Professor Salinas, a former Texas prosecutor and judge:
“Is it time to Kill the Death Penalty?” See Salinas, 34 Am. J.
Crim. L. 39 (2006). The time for a dispassionate, impartial
comparison of the enormous costs that death penalty litigation
imposes on society with the benefits that it produces has surely
arrived.[ Footnote 17 ]

															III

															   “[A] penalty may be cruel and
unusual because it is excessive and serves no valid legislative
purpose.” Furman v. Georgia , 408 U. S. 238 , 331
(1972) (Marshall, J., concurring); see also id., at 332
(“The entire thrust of the Eighth Amendment is, in short, against
‘that which is excessive’ ”). Our cases holding that certain
sanctions are “excessive,” and therefore prohibited by the Eighth
Amendment, have relied heavily on “objective criteria,” such as
legislative enactments. See, e.g., Solem v. Helm, 463
U. S. 277 , 292 (1983); Harmelin v. Michigan , 501 U. S. 957 (1991); United States v. Bajakajian , 524 U. S. 321 (1998). In
our recent decision in Atkins v. Virginia, 536 U. S. 304 (2002), holding that death is an excessive sanction for a mentally
retarded defendant, we also relied heavily on opinions written by
Justice White holding that the death penalty is an excessive
punishment for the crime of raping a 16-year-old woman, Coker v. Georgia, 433 U. S. 584 (1977),
and for a murderer who did not intend to kill, Enmund v. Florida, 458 U. S. 782 (1982). In
those opinions we acknowledged that “objective evidence, though of
great importance, did not ‘wholly determine’ the controversy, ‘for
the Constitution contemplates that in the end our own judgment will
be brought to bear on the question of the acceptability of the
death penalty under the Eighth Amendment.’ ” Atkins, 536 U. S., at 312 (quoting Coker , 433 U. S., at 597
(plurality opinion)).

															   Justice White was exercising his
own judgment in 1972 when he provided the decisive vote in Furman , the case that led to a nationwide reexamination of
the death penalty. His conclusion that death amounted to “cruel and
unusual punishment in the constitutional sense” as well as the
“dictionary sense,” rested on both an uncontroversial legal premise
and on a factual premise that he admittedly could not “prove” on
the basis of objective criteria. 408 U. S., at 312, 313 (concurring
opinion). As a matter of law, he correctly stated that the
“needless extinction of life with only marginal contributions to
any discernible social or public purposes … would be patently
excessive” and violative of the Eighth Amendment. Id., at
312. As a matter of fact, he stated, “like my Brethren, I must
arrive at judgment; and I can do no more than state a conclusion
based on 10 years of almost daily exposure to the facts and
circumstances of hundreds and hundreds of federal and state
criminal cases involving crimes for which death is the authorized
penalty.” Id., at 313. I agree with Justice White that
there are occasions when a Member of this Court has a duty to make
judgments on the basis of data that falls short of absolute
proof.

															   Our decisions in 1976 upholding the
constitutionality of the death penalty relied heavily on our belief
that adequate procedures were in place that would avoid the danger
of discriminatory application identified by Justice Douglas’
opinion in Furman, id., at 240–257 (concurring
opinion), of arbitrary application identified by Justice Stewart, id., at 306 (same), and of excessiveness identified by
Justices Brennan and Marshall . In subsequent years a
number of our decisions relied on the premise that “death is
different” from every other form of punishment to justify rules
minimizing the risk of error in capital cases. See, e.g., Gardner v. Florida, 430 U. S. 349 , 357–358 (1977)
(plurality opinion). Ironically, however, more recent cases have
endorsed procedures that provide less protections to capital
defendants than to ordinary offenders.

															   Of special concern to me are rules that
deprive the defendant of a trial by jurors representing a fair
cross section of the community. Litigation involving both
challenges for cause and peremptory challenges has persuaded me
that the process of obtaining a “death qualified jury” is really a
procedure that has the purpose and effect of obtaining a jury that
is biased in favor of conviction. The prosecutorial concern that
death verdicts would rarely be returned by 12 randomly selected
jurors should be viewed as objective evidence supporting the
conclusion that the penalty is excessive.[ Footnote 18 ]

															   Another serious concern is that the risk of
error in capital cases may be greater than in other cases because
the facts are often so disturbing that the interest in making sure
the crime does not go unpunished may overcome residual doubt
concerning the identity of the offender. Our former emphasis on the
importance of ensuring that decisions in death cases be adequately
supported by reason rather than emotion, Gardner, 430 U. S. 349 , has been undercut by
more recent decisions placing a thumb on the prosecutor’s side of
the scales. Thus, in Kansas v. Marsh , 548 U. S. 163 (2006),
the Court upheld a state statute that requires imposition of the
death penalty when the jury finds that the aggravating and
mitigating factors are in equipoise. And in Payne v. Tennessee , 501 U. S. 808 (1991),
the Court overruled earlier cases and held that “victim impact”
evidence relating to the personal characteristics of the victim and
the emotional impact of the crime on the victim’s family is
admissible despite the fact that it sheds no light on the question
of guilt or innocence or on the moral culpability of the defendant,
and thus serves no purpose other than to encourage jurors to make
life or death decisions on the basis of emotion rather than
reason.

															   A third significant concern is the risk of
discriminatory application of the death penalty. While that risk
has been dramatically reduced, the Court has allowed it to continue
to play an unacceptable role in capital cases. Thus, in McCleskey v. Kemp , 481 U. S. 279 (1987),
the Court upheld a death sentence despite the “strong probability
that [the defendant’s] sentencing jury … was influenced by the fact
that [he was] black and his victim was white.” Id., at 366
(Stevens, J., dissenting); see also Evans v. State, 396 Md. 256, 323, 914 A. 2d 25, 64 (2006),
cert. denied, 552 U. S. ___ (2007) (affirming a death sentence
despite the existence of a study showing that “the death penalty is statistically more likely to be pursued against a black
person who murders a white victim than against a defendant in any
other racial combination”).

															   Finally, given the real risk of error in this
class of cases, the irrevocable nature of the consequences is of
decisive importance to me. Whether or not any innocent defendants
have actually been executed, abundant evidence accumulated in
recent years has resulted in the exoneration of an unacceptable
number of defendants found guilty of capital offenses. See Garrett,
Judging Innocence, 108 Colum. L. Rev. 55 (2008); Risinger,
Innocents Convicted: An Empirically Justified Factual Wrongful
Conviction Rate, 97 J. Crim. L. & C. 761 (2007). The risk of
executing innocent defendants can be entirely eliminated by
treating any penalty more severe than life imprisonment without the
possibility of parole as constitutionally excessive.

															   In sum, just as Justice White ultimately based
his conclusion in Furma n on his extensive exposure to
countless cases for which death is the authorized penalty, I have
relied on my own experience in reaching the conclusion that the
imposition of the death penalty represents “the pointless and
needless extinction of life with only marginal contributions to any
discernible social or public purposes. A penalty with such
negligible returns to the State [is] patently excessive and cruel
and unusual punishment violative of the Eighth Amendment.” Furman , 408 U. S., at 312 (White, J., concurring). [ Footnote
19 ] IV The conclusion
that I have reached with regard to the constitutionality of the
death penalty itself makes my decision in this case particularly
difficult. It does not, however, justify a refusal to respect
precedents that remain a part of our law. This Court has held that
the death penalty is constitutional, and has established a
framework for evaluating the constitutionality of particular
methods of execution. Under those precedents, whether as
interpreted by The Chief Justice or Justice Ginsburg, I am
persuaded that the evidence adduced by petitioners fails to prove
that Kentucky’s lethal injection protocol violates the Eighth
Amendment. Accordingly, I join the Court’s judgment. Footnote
1 The 2000 Report of the
American Veterinary Medical Association (AVMA) Panel on Euthanasia
stated that a “combination of pentobarbital with a neuromuscular
blocking agent is not an acceptable euthanasia agent.” 218 J. Am.
Veterinary Med. Assn. 669, 680 (2001). In a 2006 supplemental
statement, however, the AVMA clarified that this statement was
intended as a recommendation against mixing a barbiturate and
neuromuscular blocking agent in the same syringe, since such
practice creates the possibility that the paralytic will take
effect before the barbiturate, rendering the animal paralyzed while
still conscious. The 2007 AVMA Guidelines on Euthanasia plainly
state that the application of a barbiturate, paralyzing agent, and
potassium chloride delivered in separate syringes or stages is not
discussed in the report. Several veterinarians, however, have filed
an amici brief in this case arguing that the three-drug
cocktail fails to measure up to veterinary standards and that the
use of pancuronium bromide should be prohibited. See Brief for Dr.
Kevin Concannon et al. as amici curiae 16–18. The
Humane Society has also declared “inhumane” the use of “any
combination of sodium pentobarbital with a neuromuscular blocking
agent.” R. Rhoades, The Humane Society of the United States,
Euthanasia Training Manual 133 (2002); see also Alper,
Anesthetizing the Public Conscience: Lethal Injection and Animal
Euthanasia, 35 Fordham Urb. L. J. ___, ___ (forthcoming 2008),
online at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1109258 (all
Inter-net materials as visited Apr. 10, 2008, and available in
Clerk of Court’s case file) (concluding, based on a comprehensive
study of animal euthanasia laws and regulations that “the field of
animal euthanasia has reached a unanimous consensus … that
neuromuscular blocking agents like pancuronium have no legitimate
place in the execution process”). Footnote
2 See also, e.g. , Fla.
Stat. §828.058(3) (2006) (“[A]ny substance which acts as a
neuromuscular blocking agent … may not be used on a dog or cat for
any purpose”); N. J. Stat. Ann. §4:22–19.3 (West 1998)
(“Whenever any dog, cat, or any other domestic animal is to be
destroyed, the use of succinylcholine chloride, curare, curariform
drugs, or any other substance which acts as a neuromuscular
blocking agent is prohibited”); N. Y. Agric. & Mkts. Law
Ann. §374(2–b) (West 2004) (“No person shall euthanize any dog or
cat with T–61, curare, any curariform drug, any neuro-muscular
blocking agent or any other paralyzing drug”); Tenn. Code Ann.
§44–17–303(c) (2007) (“Succinylcholine chloride, curare, curariform
mixtures … or any substance that acts as a neuromuscular blocking
agent … may not be used on any non-livestock animal for the purpose
of euthanasia”). According to a recent study, not a single State
sanctions the use of a paralytic agent in the administration of
animal euthanasia, 9 States explicitly ban the use of such drugs,
13 others ban it by implication— i.e., by mandating the use
of nonparalytic drugs, 12 arguably ban it by reference to the AVMA
guidelines, and 8 others express a strong preference for use of
nonparalytic drugs. Anesthetizing the Public Conscience, supra , at ____, and App.1. Footnote
3 Indeed, the decision by
prison administrators to use the drug on humans for aesthetic
reasons is not supported by any consensus of medical professionals.
To the contrary, the medical community has considered—and
rejected—this aesthetic rationale for administering neuromuscular
blocking agents in end-of-life care for terminally ill patients
whose families may be disturbed by involuntary movements that are
misperceived as signs of pain or discomfort. As explained in an amici curiae brief submitted by critical care providers
and clinical ethicists, the medical and medical ethics communities
have rejected this rationale because there is a danger that such
drugs will mask signs that the patient is actually in pain. See
Brief for Critical Care Providers et al. as amici
curiae . Footnote
4 Of the 35 state statutes
providing for execution by lethal injection, only approximately
one-third specifically approve the use of a chemical paralytic
agent. See Ark. Code Ann. §5–4–617 (2006); Idaho Code §19–2716
(Lexis 2004); Ill. Comp. Stat., ch. 725, §5/119–5 (West 2006); Md.
Crim. Law Code Ann. §2–303 (Lexis Supp. 2007); Miss. Code Ann.
§99–19–51 (2007); Mont. Code Ann. §46–19–103 (2007); N. H.
Rev. Stat. Ann. §630:5 (2007); N. M. Stat. Ann. §31–14–11
(2000); N. C. Gen. Stat. Ann. §15–187 (Lexis 2007); Okla.
Stat., Tit. 22, §1014 (West 2001); Ore. Rev. Stat. §137.473 (2003);
Pa. Stat. Ann., Tit. 61, §3004 (Purdon 1999); Wyo. Stat. Ann.
§7–13–904 (2007). Twenty of the remaining States do not specify any
particular drugs. See Ariz. Rev. Stat. Ann. §13–704 (West 2001);
Cal. Penal Code Ann. §3604 (West 2000); Conn. Gen. Stat. §54–100
(2007); Del. Code Ann., Tit. 11, §4209 (2006 Supp.); Fla. Stat.
§922.105 (2006); Ga. Code Ann. §17–10–38 (2004); Ind. Code
§35–38–6–1 (West 2004); Kan. Stat. Ann. §22–4001 (2006 Cum. Supp.);
Ky. Rev. Stat. Ann. §431.220 (West 2006); La. Stat. Ann. §15:569
(West 2005); Mo. Rev. Stat. §546.720 (2007 Cum. Supp.); Nev. Rev.
Stat. §176.355 (2007); Ohio Rev. Code Ann. §2949.22 (Lexis 2006);
S. C. Code Ann. §24–3–530 (2007); S. D. Codified Laws
§23A–27A–32 (Supp. 2007); Tenn. Code Ann. §40–23–114 (2006); Tex.
Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet);
Utah Code Ann. §77–18–5.5 (Lexis Supp. 2007); Va. Code Ann.
§53.1–234 (Lexis Supp. 2007); Wash. Rev. Code §10.95.180
(2006). Footnote
5 Colorado’s statute provides
for “a continuous intravenous injection of a lethal quantity of
sodium thiopental or other equally or more effective substance
sufficient to cause death.” §18–1.3–1202. Despite the fact that the
statute specifies only sodium thiopental, it appears that Colorado
uses the same three drugs as other States. See Denno, The Lethal
Injection Quandary: How Medicine Has Dismantled the Death Penalty,
76 Ford. L. Rev. 49, 97, and n. 322 (2007). Footnote
6 Notably, the Oklahoma medical
examiner who devised the protocol has disavowed the use of
pancuronium bromide. When asked in a recent interview why he
included it in his formula, he responded: “ ‘It’s a good
question. If I were doing it now, I would probably eliminate
it.’ ” E. Cohen, Lethal injection creator: Maybe it’s time to
change the formula,
http://www.cnn.com/2007/HEALTH/04/30/lethal.injection/
index.html. Footnote
7 Officials of the DOC had
before them an advisory paper submitted by a group of New York
doctors recommending sodium thiopental “ ‘without the addition
of other drugs,’ ” and the supervisor of the Health Services
Unit was informed in a memo from a colleague that pancuronium
bromide “ ‘will cause paralysis of the vocal chords and stop
breathing, and hence could cause death by asphyxiation.’ ”
Edwards, 170 N. J. L. J., at 673. Footnote
8 Further, concerns about this
issue may have played a role in New Jersey’s subsequent decisions
to create a New Jersey Death Penalty Study Commission in 2006, and
ultimately to abolish the death penalty in 2007. Footnote
9 For similar reasons, States
may also be well advised to reconsider the sufficiency of their
procedures for checking the inmate’s consciousness. See, post, at 5–10 (Ginsburg, J., dissenting). Justice Alito correctly points
out that the Royal Dutch Society for the Advancement of Pharmacy
recommends pancuronium bromide “as the second of the two drugs to
be used in cases of euthanasia.” Ante , at 7 (concurring
opinion). In the Netherlands, however, physicians with training in
anesthesiology are involved in assisted suicide. For reasons
Justice Alito details, see ante , at 2–4, physicians have
no similar role in American executions. When trained medical
personnel administer anesthesia and monitor the individual’s
anesthetic depth, the serious risks that concern me are not
presented. Footnote
10 Forty-eight States now have
some form of life imprisonment without parole, with the majority of
statutes enacted within the last two decades. See Note, A Matter of
Life and Death: The Effect of Life-Without-Parole Statutes on
Capital Punishment, 119 Harv. L. Rev. 1838, 1839,
1841–1844 (2006). Footnote
11 See R. Dieter, Sentencing For
Life: Americans Embrace Alternatives to the Death Penalty (Apr.
1993), http://www.deathpenaltyinfo.
org/article.php?scid=45&did=481. Footnote
12 In one study, potential
capital jurors in Virginia stated that knowing about the existence
of statutes providing for life without the possibility of parole
would significantly influence their sentencing decision. In another
study, a significant majority of potential capital jurors in
Georgia said they would be more likely to select a life sentence
over a death sentence if they knew that the defendant would be
ineligible for parole for at least 25 years. See Note, 119
Harv. L. Rev., at 1845. Indeed, this insight drove our
decision in Simmons v. South Carolina , 512 U. S. 154 (1994),
that capital defendants have a due process right to require that
their sentencing juries be informed of their ineligibility for
parole. Footnote
13 Admittedly, there has been a
recent surge in scholarship asserting the deterrent effect of the
death penalty, see, e.g., Mocan & Gittings, Getting
Off Death Row: Commuted Sentences and the Deterrent Effect of
Capital Punishment, 46 J. Law & Econ. 453 (2003); Adler
& Summers, Capital Punishment Works, Wall Street Journal, Nov.
2, 2007, p. A13, but there has been an equal, if not greater,
amount of scholarship criticizing the methodologies of those
studies and questioning the results, see, e.g., Fagan,
Death and Deterrence Redux: Science, Law and Causal Reasoning on
Capital Punishment, 4 Ohio St. J. Crim. L. 255 (2006); Donohue
& Wolfers, Uses and Abuses of Empirical Evidence in the Death
Penalty Debate, 58 Stan. L. Rev. 791 (2005). Footnote
14 Retribution is the most
common basis of support for the death penalty. A recent study found
that 37% of death penalty supporters cited “an eye for an eye/they
took a life/fits the crime” as their reason for supporting capital
punishment. Another 13% cited “They deserve it.” The next most
common reasons—“sav[ing] taxpayers money/cost associated with
prison” and deterrence—were each cited by 11% of supporters. See
Dept. of Justice, Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics 147 (2003) (Table 2.55), online at
http://www.albany.edu/sourcebook/pdf/t255.pdf. Footnote
15 For example, family members
of victims of the Oklahoma City bombing called for the Government
to “ ‘put [Timothy McVeigh] inside a bomb and blow it
up.’ ” Walsh, One Arraigned, Two Undergo Questioning,
Washington Post, Apr. 22, 1995, pp. A1, A13. Commentators at
the time noted that an overwhelming percentage of Americans felt
that executing McVeigh was not enough. Linder, A Political Verdict:
McVeigh: When Death Is Not Enough, L. A. Times, June 8, 1997,
p. M1. Footnote
16 For example, one survivor of
the Oklahoma City bombing expressed a belief that “ ‘death by
[lethal] injection [was] “too good” for McVeigh.’ ” A. Sarat,
When the State kills: Capital Punishment and the American Condition
64 (2001). Similarly, one mother, when told that her child’s killer
would die by lethal injection, asked: “Do they feel anything? Do
they hurt? Is there any pain? Very humane compared to what they’ve
done to our children. The torture they’ve put our kids through. I
think sometimes it’s too easy. They ought to feel something. If
it’s fire burning all the way through their body or whatever. There
ought to be some little sense of pain to it.” Id., at 60
(emphasis deleted). Footnote
17 For a discussion of the
financial costs as well as some of the less tangible costs of the
death penalty, see Kozinski & Gallagher, Death: The Ultimate
Run-On Sentence, 46 Case W. Res. L. Rev. 1 (1995) (discussing, inter alia , the burden on the courts and the lack of
finality for victim’s families). Although a lack of finality in
death cases may seem counterintuitive, Kozinski and Gallagher
explain: “Death cases raise many more issues, and far
more complex issues, than other criminal cases, and they are
attacked with more gusto and reviewed with more vigor in the
courts. This means there is a strong possibility that the
conviction or sentence will be reconsidered—seriously
reconsidered—five, ten, twenty years after the trial. … One has to
wonder and worry about the effect this has on the families of the
victims, who have to live with the possibility—and often the
reality—of retrials, evidentiary hearings, and last-minute stays of
execution for decades after the crime.” Id., at 17–18
(footnotes omitted). Thus, they conclude that “we are left in limbo,
with machinery that is immensely expensive, that chokes our legal
institutions so they are impeded from doing all the other things a
society expects from its courts, [and] that visits repeated trauma
on victims’ families … .” Id., at 27–28; see also
Block, A Slow Death, N. Y. Times, Mar. 15, 2007, p. A27
(discussing the “enormous costs and burdens to the judicial system”
resulting from the death penalty). Some argue that these costs
are the consequence of judicial insistence on unnecessarily
elaborate and lengthy appellate procedures. To the contrary, they
result “in large part from the States’ failure to apply
constitutionally sufficient procedures at the time of initial
[conviction or] sentencing.” Knight v. Florida , 528 U. S. 990 ,
998 (1999) (Breyer, J., dissenting from denial of certiorari). They
may also result from a general reluctance by States to put large
numbers of defendants to death, even after a sentence of death is
imposed. Cf. Tempest, Death Row Often Means a Long Life; California
condemns many murderers, but few are ever executed, L. A.
Times, Mar. 6, 2006, p. B1 (noting that California death row
inmates account for about 20% of the Nation’s total death row
population, but that the State accounts for only 1% of the Nation’s
executions). In any event, they are most certainly not the fault of
judges who do nothing more than ensure compliance with
constitutional guarantees prior to imposing the irrevocable
punishment of death. Footnote
18 See Uttecht v. Brown , 551 U.
S. 1 , ___ (2007) (slip op., at 1) (Stevens, J., dissenting)
(explaining that “[m]illions of Americans oppose the death
penalty,” and that “[a] cross section of virtually every community
in the country includes citizens who firmly believe the death
penalty is unjust but who nevertheless are qualified to serve as
jurors in capital cases”). Footnote
19 Not a single Justice in Furman concluded that the mention of deprivation of “life”
in the Fifth and Fourteenth Amendments insulated the death penalty
from constitutional challenge. The five Justices who concurred in
the judgment necessarily rejected this argument, and even the four
dissenters, who explicitly acknowledged that the death penalty was
not considered impermissibly cruel at the time of the framing,
proceeded to evaluate whether anything had changed in the
intervening 181 years that nevertheless rendered capital punishment
unconstitutional. Furman , 408 U. S., at 380–384 (Burger,
C.J., joined by Blackmun, Powell, and Rehnquist, JJ., dissenting);
see also id., at 420 (“Nor are ‘cruel and unusual
punishments’ and ‘due process of law’ static concepts whose meaning
and scope were sealed at the time of their writing”) (Powell, J.,
joined by Burger, C.J., and Blackmun and Rehnquist, JJ.,
dissenting). And indeed, the guarantees of procedural fairness
contained in the Fifth and Fourteenth Amendments do not resolve the
substantive questions relating to the separate limitations imposed
by the Eighth Amendment. THOMAS, J., CONCURRING IN JUDGMENT BAZE V. REES 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-5439 RALPH BAZE and THOMAS C. BOWLING, PETI- TIONERS v. JOHN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF
CORRECTIONS, et al.

															on writ of certiorari to the supreme court of
kentucky

															[April 16, 2008]

															   Justice Thomas, with whom Justice
Scalia joins, concurring in the judgment.

															   Although I agree that petitioners
have failed to establish that Kentucky’s lethal injection protocol
violates the Eighth Amendment, I write separately because I cannot
subscribe to the plurality opinion’s formulation of the governing
standard. As I understand it, that opinion would hold that a method
of execution violates the Eighth Amendment if it poses a
substantial risk of severe pain that could be significantly reduced
by adopting readily available alternative procedures. Ante , at 13. This standard—along with petitioners’
proposed “unnecessary risk” standard and the dissent’s “untoward
risk” standard, post , at 2—finds no support in the
original understanding of the Cruel and Unusual Punishments Clause
or in our previous method-of-execution cases; casts constitutional
doubt on long-accepted methods of execution; and injects the Court
into matters it has no institutional capacity to resolve. Because,
in my view, a method of execution violates the Eighth Amendment
only if it is deliberately designed to inflict pain, I concur only
in the judgment.

															I

															   The Eighth Amendment’s
prohibition on the “inflict[ion]” of “cruel and unusual
punishments” must be understood in light of the historical
practices that led the Framers to include it in the Bill of Rights.
Justice Stevens’ ruminations notwithstanding, see ante , at
8–18 (opinion concurring in judgment), it is clear that the Eighth
Amendment does not prohibit the death penalty. That is evident both
from the ubiquity of the death penalty in the founding era, see S.
Banner, The Death Penalty: An American History 23 (2002)
(hereinafter Banner) (noting that, in the late 18th century, the
death penalty was “the standard penalty for all serious crimes”),
and from the Constitution’s express provision for capital
punishment, see, e.g. , Amdt. 5 (requiring an indictment or
presentment of a grand jury to hold a person for “a capital, or
otherwise infamous crime,” and prohibiting deprivation of “life”
without due process of law).

															   That the Constitution permits
capital punishment in principle does not, of course, mean that all
methods of execution are constitutional. In English and early
colonial practice, the death penalty was not a uniform punishment,
but rather a range of punishments, some of which the Framers likely
regarded as cruel and unusual. Death by hanging was the most common
mode of execution both before and after 1791, and there is no doubt
that it remained a permissible punishment after enactment of the
Eighth Amendment. “An ordinary death by hanging was not, however,
the harshest penalty at the disposal of the seventeenth- and
eighteenth-century state.” Banner 70. In addition to hanging, which
was intended to, and often did, result in a quick and painless
death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of
producing a punishment worse than death.” Id ., at 54.

															   One such “tool” was burning at the stake.
Because burning, unlike hanging, was always painful and destroyed
the body, it was considered “a form of super-capital punishment,
worse than death itself.” Id., at 71. Reserved for
offenders whose crimes were thought to pose an especially grave
threat to the social order—such as slaves who killed their masters
and women who killed their husbands—burning a person alive was so
dreadful a punishment that sheriffs sometimes hanged the offender
first “as an act of charity.” Id ., at 72.

															   Other methods of intensifying a death sentence
included “gibbeting,” or hanging the condemned in an iron cage so
that his body would decompose in public view, see id. , at
72–74, and “public dissection,” a punishment Blackstone associated
with murder, 4 W. Blackstone, Commentaries 376 (1769) (hereinafter
Blackstone). But none of these was the worst fate a criminal could
meet. That was reserved for the most dangerous and reprobate
offenders—traitors. “The punishment of high treason,” Blackstone
wrote, was “very solemn and terrible,” id ., at 92, and
involved “embowelling alive, beheading, and quartering,” id ., at 376. Thus, the following death sentence could be
pronounced on seven men convicted of high treason in England:

															“ ‘That you and each of you, be taken to the
place from whence you came, and from thence be drawn on a hurdle to
the place of execution, where you shall be hanged by the necks, not
till you are dead; that you be severally taken down, while yet
alive, and your bowels be taken out and burnt before your
faces—that your heads be then cut off, and your bodies cut in four
quarters, to be at the King’s disposal. And God Almighty have mercy
on your souls.’ ” G. Scott, History of Capital Punishment 179
(1950).*

															   The principal object of these
aggravated forms of capital punishment was to terrorize the
criminal, and thereby more effectively deter the crime. Their
defining characteristic was that they were purposely designed to
inflict pain and suffering beyond that necessary to cause death. As
Blackstone put it, “in very atrocious crimes, other circumstances
of terror, pain, or disgrace [were] superadded.” 4 Blackstone 376.
These “superadded” circumstances “were carefully handed out to
apply terror where it was thought to be most needed,” and were
designed “to ensure that death would be slow and painful, and thus
all the more frightening to contemplate.” Banner 70.

															   Although the Eighth Amendment was not the
subject of extensive discussion during the debates on the Bill of
Rights, there is good reason to believe that the Framers viewed
such enhancements to the death penalty as falling within the
prohibition of the Cruel and Unusual Punishments Clause. By the
late 18th century, the more violent modes of execution had
“dwindled away,” id., at 76, and would for that reason
have been “unusual” in the sense that they were no longer
“regularly or customarily employed,” Harmelin v. Michigan , 501 U. S. 957 , 976
(1991) (opinion of Scalia, J.); see also Weems v. United States , 217 U. S. 349 , 395
(1910) (White, J., dissenting) (noting that, “prior to the
formation of the Constitution, the necessity for the protection
afforded by the cruel and unusual punishment guarantee of the
English bill of rights had ceased to be a matter of concern,
because as a rule the cruel bodily punishments of former times were
no longer imposed”). Embellishments upon the death penalty designed
to inflict pain for pain’s sake also would have fallen comfortably
within the ordinary meaning of the word “cruel.” See 1 S. Johnson,
A Dictionary of the English Language 459 (1773) (defining “cruel”
to mean “[p]leased with hurting others; inhuman; hard-hearted; void
of pity; wanting compassion; savage; barbarous; unrelenting”); 1 N.
Webster, An American Dictionary of the English Language 52 (1828)
(defining “cruel” as “[d]isposed to give pain to others, in body or
mind; willing or pleased to torment, vex or afflict; inhuman;
destitute of pity, compassion or kindness”).

															   Moreover, the evidence we do have from the
debates on the Constitution confirms that the Eighth Amendment was
intended to disable Congress from imposing torturous punishments.
It was the absence of such a restriction on Congress’ power in the
Constitution as drafted in Philadelphia in 1787 that led one
delegate at the Massachusetts ratifying convention to complain that
Congress was “nowhere restrained from inventing the most cruel and
unheard-of punishments, and annexing them to crimes; and there is
no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their
discipline.” 2 J. Elliot, The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 111 (2d ed.
1891). Similarly, during the ratification debate in Virginia,
Patrick Henry objected to the lack of a Bill of Rights, in part
because there was nothing to prevent Congress from inflicting
“tortures, or cruel and barbarous punishment[s].” 3 id., at 447–448.

															   Early commentators on the Constitution
likewise interpreted the Cruel and Unusual Punishments Clause as
referring to torturous punishments. One commentator viewed the
Eighth Amendment as prohibiting “horrid modes of torture”:

															“The prohibition of cruel and unusual punishments,
marks the improved spirit of the age, which would not tolerate the
use of the rack or the stake, or any of those horrid modes of
torture, devised by human ingenuity for the gratification of
fiendish passion.” J. Bayard, A Brief Exposition of the
Constitution of the United States 154 (2d ed. 1840).

															Similarly, another commentator found “sufficient
reasons” for the Eighth Amendment in the “barbarous and cruel
punishments” inflicted in less enlightened countries:

															“Under the [Eighth] amendment the infliction of
cruel and unusual punishments, is also prohibited. The various
barbarous and cruel punishments inflicted under the laws of some
other countries, and which profess not to be behind the most
enlightened nations on earth in civilization and refinement,
furnish sufficient reasons for this express prohibition. Breaking
on the wheel, flaying alive, rending asunder with horses, various
species of horrible tortures inflicted in the inquisition, maiming,
mutilating and scourging to death, are wholly alien to the spirit
of our humane general constitution.” B. Oliver, The Rights of An
American Citizen 186 (1832) (reprint 1970).

															So barbaric were the punishments prohibited by the
Eighth Amendment that Joseph Story thought the provision “wholly
unnecessary in a free government, since it is scarcely possible,
that any department of such a government should authorize, or
justify such atrocious conduct.” 3 J. Story, Commentaries on the
Constitution of the United States 750 (1833).

															II

															   Consistent with the original
understanding of the Cruel and Unusual Punishments Clause, this
Court’s cases have repeatedly taken the view that the Framers
intended to prohibit torturous modes of punishment akin to those
that formed the historical backdrop of the Eighth Amendment. See, e.g. , Estelle v. Gamble , 429 U. S. 97 , 102 (1976)
(“[T]he primary concern of the drafters was to proscribe
‘torture[s]’ and other ‘barbar[ous]’ methods of punishment”); Weems , 217 U. S., at 390 (White, J., dissenting) (“[I]t
may not be doubted, and indeed is not questioned by any one, that
the cruel punishments against which the bill of rights provided
were the atrocious, sanguinary and inhuman punishments which had
been inflicted in the past upon the persons of criminals”). That
view has permeated our method-of-execution cases. Thrice the Court
has considered a challenge to a modern method of execution, and
thrice it has rejected the challenge, each time emphasizing that
the Eighth Amendment is aimed at methods of execution purposely
designed to inflict pain.

															   In the first case, Wilkerson v. Utah , 99 U. S. 130 (1879), the
Court rejected the contention that death by firing squad was cruel
and unusual. In so doing, it reviewed the various modes of
execution catalogued by Blackstone, repeating his observation that
“in very atrocious crimes other circumstances of terror, pain, or
disgrace were sometimes superadded.” Id ., at 135. The
Court found it “safe to affirm that punishments of torture, such as
those mentioned by [Blackstone], and all others in the same line of
unnecessary cruelty, are forbidden by [the Eighth Amendment].” Id ., at 136. The unanimous Court had no difficulty
concluding that death by firing squad did not “fal[l] within that
category.” Ibid .

															   Similarly, when the Court in In re
Kemmler , 136 U.
S. 436 , 446 (1890), unanimously rejected a challenge to
electrocution, it interpreted the Eighth Amendment to prohibit
punishments that “were manifestly cruel and unusual, as burning at
the stake, crucifixion, breaking on the wheel, or the like”:

															“Punishments are cruel when they involve torture or
a lingering death; but the punishment of death is not cruel, within
the meaning of that word as used in the Constitution. It implies
there something inhuman and barbarous, something more than the mere
extinguishment of life.” Id ., at 447.

															   Finally, in Louisiana ex rel.
Francis v. Resweber , 329 U. S. 459 (1947),
the Court rejected the petitioner’s contention that the Eighth
Amendment prohibited Louisiana from subjecting him to a second
attempt at electrocution, the first attempt having failed when
“[t]he executioner threw the switch but, presumably because of some
mechanical difficulty, death did not result.” Id ., at 460
(plurality opinion). Characterizing the abortive attempt as “an
accident, with no suggestion of malevolence,” id ., at 463,
the plurality opinion concluded that “the fact that petitioner
ha[d] already been subjected to a current of electricity [did] not
make his subsequent execution any more cruel in the constitutional
sense than any other execution”:

															“The cruelty against which the Constitution
protects a convicted man is cruelty inherent in the method of
punishment, not the necessary suffering involved in any method
employed to extinguish life humanely. The fact that an
unforeseeable accident prevented the prompt consummation of the
sentence cannot, it seems to us, add an element of cruelty to a
subsequent execution. There is no purpose to inflict unnecessary
pain nor any unnecessary pain involved in the proposed execution.” Id ., at 464.

															   III

															   In light of this consistent
understanding of the Cruel and Unusual Punishments Clause as
forbidding purposely torturous punishments, it is not surprising
that even an ardent abolitionist was constrained to acknowledge in
1977 that “[a]n unbroken line of interpreters has held that it was
the original understanding and intent of the framers of the Eighth
Amendment … to proscribe as ‘cruel and unusual’ only such
modes of execution as compound the simple infliction of death with
added cruelties or indignities.” H. Bedau, The Courts, the
Constitution, and Capital Punishment 35. What is surprising is the
plurality’s willingness to discard this unbroken line of authority
in favor of a standard that finds no support in the original
understanding of the Eighth Amendment or in our method-of-execution
cases and that, disclaimers notwithstanding, “threaten[s] to
transform courts into boards of inquiry charged with determining
‘best practices’ for executions, with each ruling supplanted by
another round of litigation touting a new and improved
methodology.” Ante , at 12.

															   We have never suggested that a
method of execution is “cruel and unusual” within the meaning of
the Eighth Amendment simply because it involves a risk of
pain—whether “substantial,” “unnecessary,” or “untoward”—that could
be reduced by adopting alternative procedures. And for good reason.
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.
Quite plainly, what defined these punishments was that they were designed to inflict torture as a way of enhancing a death
sentence; they were intended to produce a penalty worse
than death, to accomplish something “more than the mere
extinguishment of life.” Kemmler, supra , at 447. The evil
the Eighth Amendment targets is intentional infliction of
gratuitous pain, and that is the standard our method-of-execution
cases have explicitly or implicitly invoked.

															   Thus, the Court did not find it necessary in Wilkerson to conduct a comparative analysis of death by
firing squad as opposed to hanging or some other method of
execution. Nor did the Court inquire into the precise procedures
used to execute an individual by firing squad in order to determine
whether they involved risks of pain that could be alleviated by
adopting different procedures. It was enough that death by firing
squad was well established in military practice, 99 U. S., at
134–135, and plainly did not fall within the “same line of
unnecessary cruelty” as the punishments described by Blackstone, id ., at 136.

															   The same was true in Kemmler . One
searches the opinion in vain for a comparative analysis of
electrocution versus other methods of execution. The Court observed
that the New York Legislature had adopted electrocution in order to
replace hanging with “ ‘the most humane and practical method
known to modern science of carrying into effect the sentence of
death in capital cases.’ ” 136 U. S., at 444. But there is no
suggestion that the Court thought it necessary to sift through the
“voluminous mass of evidence … taken [in the courts below] as to
the effect of electricity as an agent of death,” id ., at
442, in order to confirm that electrocution in fact involved less
substantial risks of pain or lingering death than hanging. The
court below had rejected the challenge because the “act was passed
in the effort to devise a more humane method of reaching the
result,” and “courts were bound to presume that the legislature was
possessed of the facts upon which it took action.” Id ., at
447. Treating the lower court’s decision “as involving an
adjudication that the statute was not repugnant to the Federal
Constitution,” ibid. , the Court found that conclusion “so
plainly right,” ibid ., that it had “no hesitation” in
denying the writ of error, id ., at 449.

															   Likewise in Resweber , the Court was
confronted in dramatic fashion with the reality that the electric
chair involved risks of error or malfunction that could result in
excruciating pain. See 329 U. S., at 480, n. 2 (Burton, J.,
dissenting) (quoting affidavits from the petitioner’s brief
recounting that during the unsuccessful first attempt at
electrocution, the petitioner’s “ ‘lips puffed out and his
body squirmed and tensed and he jumped so that the chair rocked on
the floor’ ”). But absent “malevolence” or a “purpose to
inflict unnecessary pain,” the Court concluded that the
Constitution did not prohibit Louisiana from subjecting the
petitioner to those very risks a second time in order to carry out
his death sentence. Id ., at 463, 464 (plurality opinion); id ., at 471 (Frankfurter, J., concurring); see also Furman v. Georgia , 408 U. S. 238 , 326–327
(1972) (Marshall, J., concurring) (describing Resweber as
holding “that the legislature adopted electrocution for a humane
purpose, and that its will should not be thwarted because, in its
desire to reduce pain and suffering in most cases, it may have
inadvertently increased suffering in one particular case”). No one
suggested that Louisiana was required to implement additional
safeguards or alternative procedures in order to reduce the risk of
a second malfunction. And it was the dissenters in Resweber who insisted that the absence of an intent to
inflict pain was irrelevant. 329 U. S., at 477 (Burton, J.,
dissenting) (“The intent of the executioner cannot lessen the
torture or excuse the result”).

															IV

															   Aside from lacking support in
history or precedent, the various risk-based standards proposed in
this case suffer from other flaws, not the least of which is that
they cast substantial doubt on every method of execution other than
lethal injection. It may well be that other methods of execution
such as hanging, the firing squad, electrocution, and lethal gas
involve risks of pain that could be eliminated by switching to
lethal injection. Indeed, they have been attacked as
unconstitutional for that very reason. See, e.g. , Gomez v. United States Dist. Court for Northern Dist.
of Cal. , 503 U.
S. 653 , 654, 656–657 (1992) (Stevens, J., dissenting) (arguing
that lethal gas violates the Eighth Amendment because of “the
availability of more humane and less violent methods of execution,”
namely, lethal injection); Glass v. Louisiana , 471 U. S. 1080 ,
1093 (1985) (Brennan, J., dissenting from denial of certiorari)
(arguing that electrocution violates the Eighth Amendment because
it poses risks of pain that could be alleviated by “other currently
available means of execution,” such as lethal injection); Campbell v. Wood , 18 F. 3d 662, 715 (CA9
1994) (Reinhardt, J., concurring and dissenting) (arguing that
hanging violates the Eighth Amendment because it involves risks of
pain and mutilation not presented by lethal injection). But the
notion that the Eighth Amendment permits only one mode of
execution, or that it requires an anesthetized death, cannot be
squared with the history of the Constitution.

															   It is not a little ironic—and
telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other
method of execution was deemed an unconstitutional relic of the
past, is the subject of today’s challenge. It appears the
Constitution is “evolving” even faster than I suspected. And it is
obvious that, for some who oppose capital punishment on policy
grounds, the only acceptable end point of the evolution is for this
Court, in an exercise of raw judicial power unsupported by the text
or history of the Constitution, or even by a contemporary moral
consensus, to strike down the death penalty as cruel and unusual in
all circumstances. In the meantime, though, the next best option
for those seeking to abolish the death penalty is to embroil the
States in never-ending litigation concerning the adequacy of their
execution procedures. But far from putting an end to abusive
litigation in this area, and thereby vindicating in some small
measure the States’ “significant interest in meting out a sentence
of death in a timely fashion,” Nelson v. Campbell , 541 U. S. 637 , 644
(2004), today’s decision is sure to engender more litigation. At
what point does a risk become “substantial”? Which alternative
procedures are “feasible” and “readily implemented”? When is a
reduction in risk “significant”? What penological justifications
are “legitimate”? Such are the questions the lower courts will have
to grapple with in the wake of today’s decision. Needless to say,
we have left the States with nothing resembling a bright-line
rule.

															   Which brings me to yet a further problem with
comparative-risk standards: They require courts to resolve medical
and scientific controversies that are largely beyond judicial ken.
Little need be said here, other than to refer to the various
opinions filed by my colleagues today. Under the competing risk
standards advanced by the plurality opinion and the dissent, for
example, the difference between a lethal injection procedure that
satisfies the Eighth Amendment and one that does not may well come
down to one’s judgment with respect to something as hairsplitting
as whether an eyelash stroke is necessary to ensure that the inmate
is unconscious, or whether instead other measures have already
provided sufficient assurance of unconsciousness. Compare post , at 6 (Ginsburg, J., dissenting) (criticizing
Kentucky’s protocol because “[n]o one calls the inmate’s name,
shakes him, brushes his eyelashes to test for a reflex, or applies
a noxious stimulus to gauge his response”), with ante , at
22 (rejecting the dissent’s criticisms because “an inmate cannot
succeed on an Eighth Amendment claim simply by showing one more
step the State could take as a failsafe for other, independently
adequate measures”). We have neither the authority nor the
expertise to micromanage the States’ administration of the death
penalty in this manner. There is simply no reason to believe that
“unelected” judges without scientific, medical, or penological
training are any better suited to resolve the delicate issues
surrounding the administration of the death penalty than are state
administrative personnel specifically charged with the task. Cf. ante , at 5 (Stevens, J., concurring in judgment)
(criticizing the States’ use of the three-drug protocol because
“[i]n the majority of States that use the three-drug protocol, the
drugs were selected by unelected Department of Correction officials
with no specialized medical knowledge and without the benefit of
expert assistance or guidance”).

															   In short, I reject as both unprecedented and
unworkable any standard that would require the courts to weigh the
relative advantages and disadvantages of different methods of
execution or of different procedures for implementing a given
method of execution. To the extent that there is any comparative
element to the inquiry, it should be limited to whether the
challenged method inherently inflicts significantly more pain than
traditional modes of execution such as hanging and the firing
squad. See, e.g. , Gray v. Lucas , 463 U. S. 1237 ,
1239–1240 (1983) (Burger, C. J., concurring in denial of
certiorari) (rejecting an Eighth Amendment challenge to lethal gas
because the petitioner had not shown that “ ‘the pain and
terror resulting from death by cyanide gas is so different in
degree or nature from that resulting from other traditional modes
of execution as to implicate the eighth amendment right’ ”
(quoting Gray v. Lucas , 710 F. 2d 1048, 1061
(CA5 1983))); Hernandez v. State , 43 Ariz. 424,
441, 32 P. 2d 18, 25 (1934) (“The fact that [lethal gas] is
less painful and more humane than hanging is all that is required
to refute completely the charge that it constitutes cruel and
unusual punishment within the meaning of this expression as used in
[the Eighth Amendment]”).

															V

															   Judged under the proper standard,
this is an easy case. It is undisputed that Kentucky adopted its
lethal injection protocol in an effort to make capital punishment
more humane, not to add elements of terror, pain, or disgrace to
the death penalty. And it is undisputed that, if administered
properly, Kentucky’s lethal injection protocol will result in a
swift and painless death. As the Sixth Circuit observed in
rejecting a similar challenge to Tennessee’s lethal injection
protocol, we “do not have a situation where the State has any
intent (or anything approaching intent) to inflict unnecessary
pain; the complaint is that the State’s pain-avoidance
procedure may fail because the executioners may make a mistake
in implementing it.” Workman v. Bredesen , 486
F. 3d 896, 907 (2007). But “[t]he risk of negligence in
implementing a death-penalty procedure … does not
establish a cognizable Eighth Amendment claim.” Id ., at
907–908. Because Kentucky’s lethal injection protocol is designed
to eliminate pain rather than to inflict it, petitioners’ challenge
must fail. I accordingly concur in the Court’s judgment affirming
the decision below.

															* As gruesome as these methods of execution
were, they were not the worst punishments the Framers would have
been acquainted with. After surveying the various
“superadd[itions]” to the death penalty in English law, as well as
lesser punishments such as “mutilation or dismembering, by cutting
off the hand or ears” and stigmatizing the offender “by slitting
the nostrils, or branding in the hand or cheek,” Blackstone was
able to congratulate his countrymen on their refinement, in
contrast to the barbarism on the Continent: “Disgusting as this
catalogue may seem, it will afford pleasure to an English reader,
and do honor to the English law, to compare it with that shocking
apparatus of death and torment to be met with in the criminal codes
of almost every other nation in Europe.” 4 Blackstone 377. SCALIA, J., CONCURRING IN JUDGMENT BAZE V. REES 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-5439 RALPH BAZE and THOMAS C. BOWLING, PETI- TIONERS v. JOHN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF
CORRECTIONS, et al.

															on writ of certiorari to the supreme court of
kentucky

															[April 16, 2008]

															Justice Scalia, with whom Justice Thomas joins,
concurring in the judgment.

															   I join the opinion of Justice
Thomas concurring in the judgment. I write separately to provide
what I think is needed response to Justice Stevens’ separate
opinion.

															I

															   Justice Stevens concludes as
follows: “[T]he imposition of the death penalty represents the
pointless and needless extinction of life with only marginal
contributions to any discernible social or public purposes. A
penalty with such negligible returns to the State [is] patently
excessive and cruel and unusual punishment violative of the Eighth
Amendment.” Ante , at 17 (opinion concurring in judgment)
(internal quotation marks omitted; second bracket in original).

															   This conclusion is insupportable
as an interpretation of the Constitution, which generally leaves it
to democratically elected legislatures rather than courts to decide
what makes significant contribution to social or public purposes.
Besides that more general proposition, the very text of the
document recognizes that the death penalty is a permissible
legislative choice. The Fifth Amendment expressly requires a
presentment or indictment of a grand jury to hold a person to
answer for “a capital, or otherwise infamous crime,” and prohibits
deprivation of “life” without due process of law. U. S. Const.,
Amdt. 5. The same Congress that proposed the Eighth Amendment also
enacted the Act of April 30, 1790, which made several offenses
punishable by death. 1 Stat. 112 (1st Cong., 2d Sess. 1790); see
also Gregg v. Georgia , 428 U. S. 153 , 176–178
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).
Writing in 1976, Professor Hugo Bedau—no friend of the death
penalty himself—observed that “[u]ntil fifteen years ago, save for
a few mavericks, no one gave any credence to the possibility of
ending the death penalty by judicial interpretation of
constitutional law.” The Courts, the Constitution, and Capital
Punishment 118 (1977). There is simply no legal authority for the
proposition that the imposition of death as a criminal penalty is
unconstitutional other than the opinions in Furman v. Georgia , 408 U. S. 238 (1972),
which established a nationwide moratorium on capital punishment
that Justice Stevens had a hand in ending four years later in Gregg .

															II

															   What prompts Justice Stevens to
repudiate his prior view and to adopt the astounding position that
a criminal sanction expressly mentioned in the Constitution
violates the Constitution? His analysis begins with what he
believes to be the “uncontroversial legal premise” that the
“ ‘extinction of life with only marginal contributions to any
discernible social or public purposes … would be patently
excessive’ and violative of the Eighth Amendment.” Ante ,
at 14 (quoting in part Furman , supra , at 312
(White, J., concurring)); see also ante , at 9 (citing Gregg , supra , at 183, and n. 28). Even if that
were uncontroversial in the abstract (and it is certainly not what
occurs to me as the meaning of “cruel and unusual punishments”), it
is assuredly controversial (indeed, flat-out wrong) as applied to a
mode of punishment that is explicitly sanctioned by the
Constitution. As to that, the people have determined
whether there is adequate contribution to social or public
purposes, and it is no business of unelected judges to set that
judgment aside. But even if we grant Justice Stevens his
“uncontroversial premise,” his application of that premise to the
current practice of capital punishment does not meet the “heavy
burden [that] rests on those who would attack the judgment of the
representatives of the people.” Gregg , supra , at
175 (joint opinion of Stewart, Powell, and Stevens, JJ.). That is
to say, Justice Stevens’ policy analysis of the constitutionality
of capital punishment fails on its own terms.

															   According to Justice Stevens, the
death penalty promotes none of the purposes of criminal punishment
because it neither prevents more crimes than alternative measures
nor serves a retributive purpose. Ante , at 9. He argues
that “the recent rise in statutes providing for life imprisonment
without the possibility of parole” means that States have a ready
alternative to the death penalty. Ibid. Moreover,
“[d]espite 30 years of empirical research in the area, there
remains no reliable statistical evidence that capital punishment in
fact deters potential offenders.” Ante , at 10. Taking the
points together, Justice Stevens concludes that the availability of
alternatives, and what he describes as the unavailability of
“reliable statistical evidence,” renders capital punishment
unconstitutional. In his view, the benefits of capital
punishment—as compared to other forms of punishment such as life
imprisonment—are outweighed by the costs.

															   These conclusions are not supported by the
available data. Justice Stevens’ analysis barely acknowledges the
“significant body of recent evidence that capital punishment may
well have a deterrent effect, possibly a quite powerful one.”
Sunstein & Vermeule, Is Capital Punishment Morally Required?
Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev.
703, 706 (2006); see also id. , at 706, n. 9 (listing
the approximately half a dozen studies supporting this conclusion).
According to a “leading national study,” “each execution prevents
some eighteen murders, on average.” Id. , at 706. “If the
current evidence is even roughly correct … then a refusal to impose
capital punishment will effectively condemn numerous innocent
people to death.” Ibid. Of course, it may well be that the empirical
studies establishing that the death penalty has a powerful
deterrent effect are incorrect, and some scholars have disputed its
deterrent value. See ante , at 10, n. 13. But that is
not the point. It is simply not our place to choose one set of
responsible empirical studies over another in interpreting the
Constitution. Nor is it our place to demand that state legislatures
support their criminal sanctions with foolproof empirical studies,
rather than commonsense predictions about human behavior. “The
value of capital punishment as a deterrent of crime is a complex
factual issue the resolution of which properly rests with the
legislatures, which can evaluate the results of statistical studies
in terms of their own local conditions and with a flexibility of
approach that is not available to the courts.” Gregg , supra , at 186 (joint opinion of Stewart, Powell, and
Stevens, JJ.). Were Justice Stevens’ current view the
constitutional test, even his own preferred criminal sanction—life
imprisonment without the possibility of parole—may fail
constitutional scrutiny, because it is entirely unclear that enough
empirical evidence supports that sanction as compared to
alternatives such as life with the possibility of parole.

															   But even if Justice Stevens’ assertion about
the deterrent value of the death penalty were correct, the death
penalty would yet be constitutional (as he concedes) if it served
the appropriate purpose of retribution. I would think it difficult
indeed to prove that a criminal sanction fails to serve a
retributive purpose—a judgment that strikes me as inherently
subjective and insusceptible of judicial review. Justice Stevens,
however, concludes that, because the Eighth Amendment “protect[s]
the inmate from enduring any punishment that is comparable to the
suffering inflicted on his victim,” capital punishment serves no
retributive purpose at all. Ante , at 11. The infliction of
any pain, according to Justice Stevens, violates the Eighth
Amendment’s prohibition against cruel and unusual punishments, but
so too does the imposition of capital punishment without
pain because a criminal penalty lacks a retributive purpose
unless it inflicts pain commensurate with the pain that the
criminal has caused. In other words, if a punishment is not
retributive enough, it is not retributive at all. To state this
proposition is to refute it, as Justice Stevens once understood.
“[T]he decision that capital punishment may be the appropriate
sanction in extreme cases is an expression of the community’s
belief that certain crimes are themselves so grievous an affront to
humanity that the only adequate response may be the penalty of
death.” Gregg , 428 U. S., at 184 (joint opinion of
Stewart, Powell, and Stevens, JJ.).

															   Justice Stevens’ final refuge in his
cost-benefit analysis is a familiar one: There is a risk that an
innocent person might be convicted and sentenced to death—though
not a risk that Justice Stevens can quantify, because he lacks a
single example of a person executed for a crime he did not commit
in the current American system. See ante , at 15–17. His
analysis of this risk is thus a series of sweeping condemnations
that, if taken seriously, would prevent any punishment under any
criminal justice system. According to him, “[t]he prosecutorial
concern that death verdicts would rarely be returned by 12 randomly
selected jurors should be viewed as objective evidence supporting
the conclusion that the penalty is excessive.” Ante , at
15. But prosecutors undoubtedly have a similar concern that any unanimous conviction would rarely be returned by 12
randomly selected jurors. That is why they, like defense counsel,
are permitted to use the challenges for cause and peremptory
challenges that Justice Stevens finds so troubling, in order to
arrive at a jury that both sides believe will be more likely to do
justice in a particular case. Justice Stevens’ concern that
prosecutors will be inclined to challenge jurors who will not find
a person guilty supports not his conclusion, but the separate (and
equally erroneous) conclusion that peremptory challenges and
challenges for cause are unconstitutional. According to Justice
Stevens, “the risk of error in capital cases may be greater than in
other cases because the facts are often so disturbing that the
interest in making sure the crime does not go unpunished may
overcome residual doubt concerning the identity of the offender.” Ibid. That rationale, however, supports not Justice
Stevens’ conclusion that the death penalty is unconstitutional, but
the more sweeping proposition that any conviction in a case in
which facts are disturbing is suspect—including, of course,
convictions resulting in life without parole in those States that
do not have capital punishment. The same is true of Justice
Stevens’ claim that there is a risk of “discriminatory application
of the death penalty.” Ante , at 16. The same could be said
of any criminal penalty, including life without parole; there is no
proof that in this regard the death penalty is distinctive.

															   But of all Justice Stevens’ criticisms of the
death penalty, the hardest to take is his bemoaning of “the
enormous costs that death penalty litigation imposes on society,”
including the “burden on the courts and the lack of finality for
victim’s families.” Ante , at 12, and n. 17. Those
costs, those burdens, and that lack of finality are in large
measure the creation of Justice Stevens and other Justices opposed
to the death penalty, who have “encumber[ed] [it] … with
unwarranted restrictions neither contained in the text of the
Constitution nor reflected in two centuries of practice under
it”—the product of their policy views “not shared by the vast
majority of the American people.” Kansas v. Marsh , 548
U. S. 163 , 186 (2006) (Scalia, J., concurring).

															III

															   But actually none of this really
matters. As Justice Stevens explains, “ ‘objective evidence,
though of great importance, [does] not wholly determine the
controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth
Amendment .’ ” Ante , at 14 (quoting Atkins v. Virginia , 536 U. S. 304 , 312
(2002); emphasis added; some internal quotation marks omitted). “I
have relied on my own experience in reaching the
conclusion that the imposition of the death penalty” is
unconstitutional. Ante , at 17 (emphasis added).

															   Purer expression cannot be found
of the principle of rule by judicial fiat. In the face of Justice
Stevens’ experience, the experience of all others is, it appears,
of little consequence. The experience of the state legislatures and
the Congress—who retain the death penalty as a form of
punishment—is dismissed as “the product of habit and inattention
rather than an acceptable deliberative process.” Ante , at
8. The experience of social scientists whose studies indicate that
the death penalty deters crime is relegated to a footnote. Ante , at 10, n. 13. The experience of fellow citizens
who support the death penalty is described, with only the most
thinly veiled condemnation, as stemming from a “thirst for
vengeance.” Ante , at 11. It is Justice Stevens’ experience
that reigns over all.

															*  *  *

															   I take no position on the
desirability of the death penalty, except to say that its value is
eminently debatable and the subject of deeply, indeed passionately,
held views—which means, to me, that it is preeminently not a matter
to be resolved here. And especially not when it is explicitly
permitted by the Constitution. BREYER, J., CONCURRING IN JUDGMENT BAZE V. REES 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-5439 RALPH BAZE and THOMAS C. BOWLING, PETI- TIONERS v. JOHN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF
CORRECTIONS, et al.

															on writ of certiorari to the supreme court of
kentucky

															[April 16, 2008]

															   Justice Breyer, concurring in the
judgment.

															   Assuming the lawfulness of the
death penalty itself, petitioners argue that Kentucky’s method of
execution, lethal injection, nonetheless constitutes a
constitutionally forbidden, “cruel and usual punishmen[t].” U. S.
Const., Amdt. 8. In respect to how a court should review
such a claim, I agree with Justice Ginsburg. She highlights the
relevant question, whether the method creates an untoward, readily
avoidable risk of inflicting severe and unnecessary suffering. Post , at 11 (dissenting opinion). I agree that the
relevant factors—the “degree of risk,” the “magnitude of pain,” and
the “availability of alternatives”—are interrelated and each must
be considered. Post , at 4. At the same time, I believe
that the legal merits of the kind of claim presented must
inevitably turn not so much upon the wording of an intermediate
standard of review as upon facts and evidence. And I cannot find,
either in the record in this case or in the literature on the
subject, sufficient evidence that Kentucky’s execution method poses
the “significant and unnecessary risk of inflicting severe pain”
that petitioners assert. Brief for Petitioners 28.

															   In respect to the literature, I have examined
the periodical article that seems first to have brought widespread
legal attention to the claim that lethal injection might bring
about unnecessary suffering. See ante , at 13, n. 2
(plurality opinion); Denno, The Lethal Injection Quandary: How
Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev.
49, 105, n. 366 (2007) (collecting cases in which condemned inmates
cited the Lancet study). The article, by Dr. Leonidas G. Koniaris,
Teresa A. Zimmers (of the University of Miami School of Medicine),
and others, appeared in the April 16, 2005, issue of the
Lancet , an eminent, peer-reviewed medical journal. See
Koniaris, Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesia
in Lethal Injection for Execution, 365 Lancet 1412 (hereinafter
Lancet Study). The authors examined “autopsy toxicology results
from 49 executions in Arizona, Georgia, North Carolina, and South
Carolina.” Id ., at 1412–1413. The study noted that lethal
injection usually consists of sequential administration of a
barbiturate (sodium thiopental), followed by injection of a
paralyzing agent (pancuronium bromide) and a heart-attack-inducing
drug (potassium chloride). The study focused on the effectiveness
of the first drug in anaesthetizing the inmate. See id .,
at 1412. It noted that the four States used 2 grams of thiopental. Id ., at 1413. (Kentucky follows a similar system but
currently uses 3 grams of sodium thiopental. See ante , at
5–6 (plurality opinion)). Although the sodium thiopental dose (of,
say, 2 grams) was several times the dose used in ordinary surgical
operations, the authors found that the level of barbiturate present
in the bloodstream several hours (or more) after death was lower than the level one might expect to find during an
operation. Lancet Study 1413–1414. With certain qualifications,
they state that “21 (43%)” of the examined instances “had
[thiopental] concentrations consistent with consciousness,” id ., at 1413,—a fact that should create considerable
concern given the related likelihood of unexpressed suffering. The
authors suggest that, among other things, inadequate training may
help explain the results. Id ., at 1414.

															   The Lancet Study, however, may be seriously
flawed. In its September 24, 2005, issue, the Lancet published
three responses. The first, by one of the initial referees,
Jonathan I. Groner of Children’s Hospital, Columbus, Ohio, claimed
that a low level of thiopental in the bloodstream does not
necessarily mean that an inadequate dose was given, for, under
circumstances likely common to lethal injections, thiopental can
simply diffuse from the bloodstream into surrounding tissues. See
Inadequate Anaesthesia in Lethal Injection for Execution, 366
Lancet 1073. And a long pause between death and measurement means
that this kind of diffusion likely occurred. See ibid . For
this reason and others, Groner, who said he had initially
“expressed strong support for the article,” had become “concerned”
that its key finding “may be erroneous because of lack of equipoise
in the study.” Ibid .

															   The second correspondents, Mark J. S.
Heath (petitioners’ expert in their trial below), Donald R.
Stanski, and Derrick J. Pounder, respectively of the Department of
Anesthesiology, Columbia University, of Stanford University School
of Medicine, and the University of Dundee, United Kingdom,
concluded that “Koniaris and colleagues do not present
scientifically convincing data to justify their conclusion that so
large a proportion of inmates have experienced awareness during
lethal injection.” Ibid . These researchers noted that
because the blood samples were taken “several hours to days after”
the inmates’ deaths, the postmortem concentrations of thiopental—a
lipophilic drug that diffuses from blood into tissue—could not be
relied on as accurate indicators for concentrations in the blood
stream during life. Ibid. See also ante , at
12–13, n. 2 (plurality opinion).

															   The third correspondents, Robyn S. Weisman,
Jeffrey N. Bernstein, and Richard S. Weisman, of the University of
Miami, School of Medicine, and Florida Poison Information Center,
said that “[p]ost-mortem drug concentrations are extremely
difficult to interpret and there is substantial variability in
results depending on timing, anatomical origin of the specimen, and
physical and chemical properties of the drug.” 366 Lancet, at 1074.
They believed that the original finding “requires further
assessment.” Ibid .

															   The authors of the original study replied,
defending the accuracy of their findings. See id ., at
1074–1076. Yet, neither the petition for certiorari nor any of the
briefs filed in this Court (including seven amici curiae briefs supporting the petitioners) make any mention of the Lancet
Study, which was published during petitioners’ trial. In light of
that fact, and the responses to the original study, a judge,
nonexpert in these matters, cannot give the Lancet Study
significant weight.

															   The literature also contains a detailed
article on the subject, which appeared in 2002 in the Ohio State
Law Journal. The author, Professor Deborah W. Denno, examined
executions by lethal injection in the 36 States where thiopental is
used. See 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. In Table 9, the author
lists 31 “Botched Lethal Injection Executions” in the time from our
decision in Gregg v. Georgia , 429 U. S. 1301 (1976),
through 2001. See Denno, 63 Ohio St. L. J., at 139–141. Of
these, 19 involved a problem of locating a suitable vein to
administer the chemicals. Ibid . Eleven of the remaining 12
apparently involved strong, readily apparent physical reactions. Ibid . One, taking place in Illinois in 1990, is described
as involving “some indication that, while appearing calm on the
outside due to the paralyzing drugs, [the inmate] suffered
excruciating pain.” Id ., at 139. The author adds that
“[t]here were reports of faulty equipment and inexperienced
personnel.” Ibid . This article, about which Professor
Denno testified at petitioners’ trial and on which petitioners rely
in this Court, may well provide cause for concern about the
administration of the lethal injection. But it cannot materially
aid the petitioners here. That is because, as far as the record
here reveals, and as the Kentucky courts found, Kentucky’s use of
trained phlebotomists and the presence of observers should prevent
the kind of “botched” executions that Denno’s Table 9
documents.

															   The literature also casts a shadow of
uncertainty upon the ready availability of some of the alternatives
to lethal execution methods. Petitioners argued to the trial court,
for example, that Kentucky should eliminate the use of a paralytic
agent, such as pancuronium bromide, which could, by preventing any
outcry, mask suffering an inmate might be experiencing because of
inadequate administration of the anesthetic. See Brief for
Petitioners 51–57; Reply Brief for Petitioners 18, and n. 6.
And they point out that use of pancuronium bromide to euthanize
animals is contrary to veterinary standards. See id ., at
20 (citing Brief for Dr. Kevin Concannon et al. as Amici
Curiae 17–18). See also the Concannon Brief 4, 18, n. 5
(noting that Kentucky, like 22 other States, prohibits the use of
neuromuscular blocking agents in euthanizing animals). In the
Netherlands, however, the use of pancuronium bromide is recommended
for purposes of lawful assisted suicide. See ante , at
19–20 (plurality opinion) (discussing the Royal Dutch Society for
the Advancement of Pharmacy recommendation of the use of a muscle
relaxant such as pancuronium in addition to thiopental). See also
Kimsma, Euthanasia and Euthanizing Drugs in The Netherlands,
reprinted in Drug Use in Assisted Suicide and Euthanasia 193,
199–202 (M. Battin & A. Lipman eds. 1996) (discussing use of
neuromuscular relaxants). Why, one might ask, if the use of
pancuronium bromide is undesirable, would those in the Netherlands,
interested in practices designed to bring about a humane death,
recommend the use of that, or similar, drugs? Petitioners pointed
out that in the Netherlands, physicians trained in anesthesiology
are involved in assisted suicide, while that is not the case in
Kentucky. See Tr. of Oral Arg. 55. While important, that difference
does not resolve the apparently conflicting views about the
inherent propriety or impropriety of use of this drug to extinguish
human life humanely.

															   Similarly, petitioners argue for better
trained personnel. But it is clear that both the American Medical
Association (AMA) and the American Nursing Association (ANA) have
rules of ethics that strongly oppose their members’ participation
in executions. See Brief for American Society of Anesthesiologists
as Amicus Curiae 2–3 (citing AMA, Code of Medical Ethics,
Policy E–2.06 Capital Punishment (2000), online at
http://www.ama-assn.org/
ama1/pub/upload/mm/369/e206capitalpunish.pdf (all In- ternet
materials as visited Apr. 10, 2008, and available in Clerk of
Court’s case file)); ANA, Position State- ment: Nurses’
Participation in Capital Punishment (1994),
http://nursingworld.org/MainMenuCategories/
HealthcareandPolicyIssues/ANAPositionStatements/
EthicsandHumanRights.aspx (noting that nurses’ participation in
executions “is viewed as contrary to the fundamental goals and
ethical traditions of the profession”). Cf. Ky. Rev. Stat. Ann.
§431.220(3) (West 2006) (Kentucky prohibiting a physician from
participating in the “conduct of an execution,” except to certify
the cause of death). And these facts suggest that finding better
trained personnel may be more difficult than might, at first blush,
appear.

															   Nor can I find in the record in this case any
stronger evidence in petitioners’ favor than the literature itself
provides of an untoward, readily avoidable risk of severe pain.
Indeed, Justice Ginsburg has accepted what I believe is
petitioners’ strongest claim, namely, Kentucky should require more
thorough testing as to unconsciousness. See post , at 5–11.
In respect to this matter, however, I must agree with the plurality
and Justice Stevens. The record provides too little reason to
believe that such measures, if adopted in Kentucky, would make a
significant difference.

															   The upshot is that I cannot find, either in
the record or in the readily available literature that I have seen,
sufficient grounds to believe that Kentucky’s method of lethal
injection creates a significant risk of unnecessary suffering. The
death penalty itself, of course, brings with it serious risks, for
example, risks of executing the wrong person, see, e.g ., ante , at 16–17 (Stevens, J., concurring in judgment),
risks that unwarranted animus (in respect, e.g ., to the
race of victims), may play a role, see, e.g ., ante , at 16, risks that those convicted will find
themselves on death row for many years, perhaps decades, to come,
see Smith v. Arizona , 552 U. S. ___ (2007)
(Breyer, J., dissenting from denial of certiorari). These risks in
part explain why that penalty is so controversial. But the
lawfulness of the death penalty is not before us. And petitioners’
proof and evidence, while giving rise to legitimate concern, do not
show that Kentucky’s method of applying the death penalty amounts
to “cruel and unusual punishmen[t].”

															   For these reasons, I concur in the
judgment. GINSBURG, J., DISSENTING BAZE V. REES 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-5439 RALPH BAZE and THOMAS C. BOWLING, PETI- TIONERS v. JOHN D. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF
CORRECTIONS, et al.

															on writ of certiorari to the supreme court of
kentucky

															[April 16, 2008]

															   Justice Ginsburg, with whom
Justice Souter joins, dissenting.

															   It is undisputed that the second
and third drugs used in Kentucky’s three-drug lethal injection
protocol, pancuronium bromide and potassium chloride, would cause a
conscious inmate to suffer excruciating pain. Pancuronium bromide
paralyzes the lung muscles and results in slow asphyxiation. App.
435, 437, 625. Potassium chloride causes burning and intense pain
as it circulates throughout the body. Id., at 348, 427,
444, 600, 626. Use of pancuronium bromide and potassium chloride on
a conscious inmate, the plurality recognizes, would be
“constitutionally unacceptable.” Ante , at 14.

															   The constitutionality of Kentucky’s protocol
therefore turns on whether inmates are adequately anesthetized by
the first drug in the protocol, sodium thiopental. Kentucky’s
system is constitutional, the plurality states, because
“petitioners have not shown that the risk of an inadequate dose of
the first drug is substantial.” Ante , at 15 . I
would not dispose of the case so swiftly given the character of the
risk at stake. Kentucky’s protocol lacks basic safeguards used by
other States to confirm that an inmate is unconscious before
injection of the second and third drugs. I would vacate and remand
with instructions to consider whether Kentucky’s omission of those
safeguards poses an untoward, readily avoidable risk of inflicting
severe and unnecessary pain.

															I

															   The Court has considered the
constitutionality of a specific method of execution on only three
prior occasions. Those cases, and other decisions cited by the
parties and amici , provide little guidance on the standard
that should govern petitioners’ challenge to Kentucky’s lethal
injection protocol.

															   In Wilkerson v. Utah , 99 U.
S. 130 (1879), the Court held that death by firing squad did
not rank among the “cruel and unusual punishments” banned by the
Eighth Amendment. In so ruling, the Court did not endeavor “to
define with exactness the extent of the constitutional provision
which provides that cruel and unusual punishments shall not be
inflicted.” Id., at 135–136. But it was “safe to affirm,”
the Court stated, that “punishments of torture … , and all others
in the same line of unnecessary cruelty, are forbidden.” Id., at 136.

															   Next, in In re Kemmler , 136 U. S. 436 (1890), death by
electrocution was the assailed method of execution.[ Footnote 1 ] The Court reiterated that the
Eighth Amendment prohibits “torture” and “lingering death.” Id., at 447. The word “cruel,” the Court further observed,
“implies … something inhuman … something more than the mere
extinguishment of life.” Ibid. Those statements, however,
were made en passant . Kemmler ’s actual holding
was that the Eighth Amendment does not apply to the States, id., at 448–449,[ Footnote
2 ] a proposition we have since repudiated, see, e.g., Robinson v. California , 370 U. S. 660 (1962).

															   Finally, in Louisiana ex rel. Francis v. Resweber , 329 U. S. 459 (1947),
the Court rejected Eighth and Fourteenth Amendment challenges to a
reelectrocution following an earlier attempt that failed to cause
death. The plurality opinion in that case first stated: “The
traditional humanity of modern Anglo-American law forbids the
infliction of unnecessary pain in the execution of the death
sentence.” Id., at 463. But the very next sentence varied
the formulation; it referred to the “[p]rohibition against the
wanton infliction of pain.” Ibid. No clear standard for determining the
constitutionality of a method of execution emerges from these
decisions. Moreover, the age of the opinions limits their utility
as an aid to resolution of the present controversy. The Eighth
Amendment, we have held, “ ‘must draw its meaning from the
evolving standards of decency that mark the progress of a maturing
society.’ ” Atkins v. Virginia , 536 U. S. 304 , 311–312
(2002) (quoting Trop v. Dulles , 356 U. S. 86 , 101 (1958)
(plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago.
Whatever little light our prior method-of-execution cases might
shed is thus dimmed by the passage of time.

															   Further phrases and tests can be drawn from
more recent decisions, for example, Gregg v. Georgia , 428 U. S. 153 (1976).
Speaking of capital punishment in the abstract, the lead opinion
said that the Eighth Amendment prohibits “the unnecessary and
wanton infliction of pain,” id., at 173 (joint opinion of
Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned
that a death sentence cannot “be imposed under sentencing
procedures that creat[e] a substantial risk that it would be
inflicted in an arbitrary and capricious manner,” id., at
188.

															   Relying on Gregg and our earlier
decisions, the Kentucky Supreme Court stated that an execution
procedure violates the Eighth Amendment if it “creates a
substantial risk of wanton and unnecessary infliction of pain,
torture or lingering death.” 217 S. W. 3d 207, 209, 210
(2006). Petitioners respond that courts should consider “(a) the
severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are
feasible.” Brief for Petitioners 38 (emphasis added). The plurality
settles somewhere in between, requiring a “substantial risk of
serious harm” and considering whether a “feasible, readily
implemented” alternative can “significantly reduce” that risk. Ante , at 13 (internal quotation marks omitted).

															   I agree with petitioners and the plurality
that the degree of risk, magnitude of pain, and availability of
alternatives must be considered. I part ways with the plurality,
however, to the extent its “substantial risk” test sets a fixed
threshold for the first factor. The three factors are interrelated;
a strong showing on one reduces the importance of the others.

															   Lethal injection as a mode of execution can be
expected, in most instances, to result in painless death. Rare
though errors may be, the consequences of a mistake about the
condemned inmate’s consciousness are horrendous and effectively
undetectable after injection of the second drug. Given the opposing
tugs of the degree of risk and magnitude of pain, the critical
question here, as I see it, is whether a feasible alternative
exists. Proof of “a slightly or marginally safer alternative” is,
as the plurality notes, insufficient. Ante, at 12. But if
readily available measures can materially increase the likelihood
that the protocol will cause no pain, a State fails to adhere to
contemporary standards of decency if it declines to employ those
measures.

															II

															   Kentucky’s Legislature adopted
lethal injection as a method of execution in 1998. See 1998 Ky.
Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. §431.220(1)(a) (West
2006). Lawmakers left the development of the lethal injection
protocol to officials in the Department of Corrections. Those
officials, the trial court found, were “given the task without the
benefit of scientific aid or policy oversight.” App. 768.
“Kentucky’s protocol,” that court observed, “was copied from other
states and accepted without challenge.” Ibid. Kentucky
“did not conduct any independent scientific or medical studies or
consult any medical professionals concerning the drugs and dosage
amounts to be injected into the condemned.” Id., at 760.
Instead, the trial court noted, Kentucky followed the path taken in
other States that “simply fell in line” behind the three-drug
protocol first developed by Oklahoma in 1977. Id., at 756.
See also ante , at 4, n. 1 (plurality opinion).

															   Kentucky’s protocol begins with a
careful measure: Only medical professionals may perform the
venipunctures and establish intravenous (IV) access. Members of the
IV team must have at least one year’s experience as a certified
medical assistant, phlebotomist, emergency medical technician
(EMT), paramedic, or military corpsman. App. 984; ante , at
16 (plurality opinion). Kentucky’s IV team currently has two
members: a phlebotomist with 8 years’ experience and an EMT with 20
years’ experience. App. 273–274. Both members practice siting
catheters at ten lethal injection training sessions held annually. Id., at 984.

															   Other than using qualified and trained
personnel to establish IV access, however, Kentucky does little to
ensure that the inmate receives an effective dose of sodium
thiopental. After siting the catheters, the IV team leaves the
execution chamber. Id., at 977. From that point forward,
only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has
any medical training.

															   The warden relies on visual observation to
determine whether the inmate “appears” unconscious. Id., at 978. In Kentucky’s only previous execution by lethal injection,
the warden’s position allowed him to see the inmate best from the
waist down, with only a peripheral view of the inmate’s face. See id., at 213–214. No other check for consciousness occurs
before injection of pancuronium bromide. Kentucky’s protocol does
not include an automatic pause in the “rapid flow” of the drugs, id., at 978, or any of the most basic tests to determine
whether the sodium thiopental has worked. No one calls the inmate’s
name, shakes him, brushes his eyelashes to test for a reflex, or
applies a noxious stimulus to gauge his response.

															   Nor does Kentucky monitor the effectiveness of
the sodium thiopental using readily available equipment, even
though the inmate is already connected to an electrocardiogram
(EKG), id., at 976. A drop in blood pressure or heart rate
after injection of sodium thiopental would not prove that the
inmate is unconscious, see id., at 579–580; ante ,
at 20–21 (plurality opinion), but would signal that the drug has
entered the inmate’s bloodstream, see App. 424, 498, 578, 580; 8
Tr. 1099 (May 2, 2005). Kentucky’s own expert testified that the
sodium thiopental should “cause the inmate’s blood pressure to
become very, very low,” App. 578, and that a precipitous drop in
blood pressure would “confir[m]” that the drug was having its
expected effect, id., at 580. Use of a blood pressure cuff
and EKG, the record shows, is the standard of care in surgery
requiring anesthesia. Id., at 539.[ Footnote 3 ]

															   A consciousness check supplementing the
warden’s visual observation before injection of the second drug is
easily implemented and can reduce a risk of dreadful pain.
Pancuronium bromide is a powerful paralytic that prevents all
voluntary muscle movement. Once it is injected, further monitoring
of the inmate’s consciousness becomes impractical without
sophisticated equipment and training. Even if the inmate were
conscious and in excruciating pain, there would be no visible
indication.[ Footnote 4 ]

															   Recognizing the importance of a window between
the first and second drugs, other States have adopted safeguards
not contained in Kentucky’s protocol. See Brief for Criminal
Justice Legal Foundation as Amicus Curiae 19–23.[ Footnote 5 ] Florida pauses between
injection of the first and second drugs so the warden can
“determine, after consultation, that the inmate is indeed
unconscious.” Lightbourne v. McCollum , 969 So. 2d
326, 346 (Fla. 2007) (per curiam) (internal quotation
marks omitted). The warden does so by touching the inmate’s
eyelashes, calling his name, and shaking him. Id ., at
347.[ Footnote 6 ] If the
inmate’s consciousness remains in doubt in Florida, “the medical
team members will come out from the chemical room and consult in
the assessment of the inmate.” Ibid . During the entire
execution, the person who inserted the IV line monitors the IV
access point and the inmate’s face on closed circuit television. Ibid. In Missouri, “medical personnel must examine
the prisoner physically to confirm that he is unconscious using
standard clinical techniques and must inspect the catheter site
again.” Taylor v. Crawford , 487 F. 3d 1072,
1083 (CA8 2007). “The second and third chemicals are injected only
after confirmation that the prisoner is unconscious and after a
period of at least three minutes has elapsed from the first
injection of thiopental.” Ibid. In California, a member of the IV team brushes
the inmate’s eyelashes, speaks to him, and shakes him at the
halfway point and, again, at the completion of the sodium
thiopental injection. See State of Califor- nia, San Quentin
Operational Procedure No. 0–770, Execution by Lethal Injection,
§V(S)(4)(e) (2007), online at
http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

															   In Alabama, a member of the execution team
“begin[s] by saying the condemned inmate’s name. If there is no
response, the team member will gently stroke the condemned inmate’s
eyelashes. If there is no response, the team member will then pinch
the condemned inmate’s arm.” Respondents’ Opposition to Callahan’s
Application for a Stay of Execution in Callahan v. Allen , O. T. 2007, No. 07A630, p. 3 (internal
quotation marks omitted).

															   In Indiana, officials inspect the injection
site after administration of sodium thiopental, say the inmate’s
name, touch him, and use ammonia tablets to test his response to a
noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing
in 1:06–cv–1859 (SD Ind.), pp. 199–200, online at
http://www.law.berkeley.edu/clinics/dpclinic/
LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter
Timberlake Hearing).[ Footnote
7 ]

															   These checks provide a degree of
assurance—missing from Kentucky’s protocol—that the first drug has
been properly administered. They are simple and essentially
costless to employ, yet work to lower the risk that the inmate will
be subjected to the agony of conscious suffocation caused by
pancuronium bromide and the searing pain caused by potassium
chloride. The record contains no explanation why Kentucky does not
take any of these elementary measures.

															   The risk that an error administering sodium
thiopental would go undetected is minimal, Kentucky urges, because
if the drug was mistakenly injected into the inmate’s tissue, not a
vein, he “would be awake and screaming.” Tr. of Oral Arg. 30–31.
See also Brief for Respondents 42; Brief for State of Texas et al.
as Amici Curiae 26–27. That argument ignores aspects of
Kentucky’s protocol that render passive reliance on obvious signs
of consciousness, such as screaming, inadequate to determine
whether the inmate is experiencing pain.

															   First, Kentucky’s use of pancuronium bromide
to paralyze the inmate means he will not be able to scream after
the second drug is injected, no matter how much pain he is
experiencing. Kentucky’s argument, therefore, appears to rest on
the assertion that sodium thiopental is itself painful when
injected into tissue rather than a vein. See App. 601. The trial
court made no finding on that point, and Kentucky cites no
supporting evidence from executions in which it is known that
sodium thiopental was injected into the inmate’s soft tissue. See, e.g., Lightbourne , 969 So. 2d, at 344 (describing
execution of Angel Diaz).

															   Second, the inmate may receive enough sodium
thiopental to mask the most obvious signs of consciousness without
receiving a dose sufficient to achieve a surgical plane of
anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected
too quickly, the increase in blood pressure can cause the inmate’s
veins to burst after a small amount of sodium thiopental has been
administered. Cf. App. 217 (describing risk of “blowout”).
Kentucky’s protocol does not specify the rate at which sodium
thiopental should be injected. The executioner, who does not have
any medical training, pushes the drug “by feel” through five feet
of tubing. Id., at 284, 286–287.[ Footnote 8 ] In practice sessions, unlike in an actual
execution, there is no resistance on the catheter, see id., at 285; thus the executioner’s training may lead him
to push the drugs too fast.

															   “The easiest and most obvious way to ensure
that an inmate is unconscious during an execution,” petitioners
argued to the Kentucky Supreme Court, “is to check for
consciousness prior to injecting pancuronium [bromide].” Brief for
Appellants in No. 2005–SC–00543, p. 41. See also App. 30
(Complaint) (alleging Kentucky’s protocol does not “require the
execution team to determine that the condemned inmate is
unconscious prior to administering the second and third
chemicals”). The court did not address petitioners’ argument. I
would therefore remand with instructions to consider whether the
failure to include readily available safeguards to confirm that the
inmate is unconscious after injection of sodium thiopental, in
combination with the other elements of Kentucky’s protocol, creates
an untoward, readily avoidable risk of inflicting severe and
unnecessary pain. Footnote 1 Hanging was the State’s prior mode of
execution. Electrocution, considered “less barbarous,” indeed “the
most humane” way to administer the death penalty, was believed at
the time to “result in instantaneous, and consequently in painless,
death.” In re Kemmler , 136 U. S. 436 , 443–444 (1890)
(internal quotation marks omitted). Footnote 2 The Court also ruled in Kemmler that
the State’s election to carry out the death penalty by
electrocution in lieu of hanging encountered no Fourteenth
Amendment shoal: No privilege or immunity of United States
citizenship was entailed, nor did the Court discern any deprivation
of due process. Id., at 448–449. Footnote 3 The plurality deems medical standards
irrelevant in part because “drawn from a different context.” Ante , at 21. Medical professionals monitor blood pressure
and heart rate, however, not just to save lives, but also to reduce
the risk of consciousness during otherwise painful procedures.
Considering that the constitutionality of Kentucky’s protocol
depends on guarding against the same risk, see supra , at
1; ante , at 14–15 (plurality opinion), the plurality’s
reluctance to consider medical practice is puzzling. No one is
advocating the wholesale incorporation of medical standards into
the Eighth Amendment. But Kentucky could easily monitor the
inmate’s blood pressure and heart rate without physician
involvement. That medical professionals consider such monitoring
important enough to make it the standard of care in medical
practice, I remain persuaded, is highly instructive. Footnote 4 Petitioners’ expert testified that a
layperson could not tell from visual observation if a paralyzed
inmate was conscious and that doing so would be difficult even for
a professional. App. 418. Kentucky’s warden candidly admitted: “I
honestly don’t know what you’d look for.” Id., at 283. Footnote 5 Because most death-penalty States keep their
protocols secret, a comprehensive survey of other States’ practices
is not available. See Brief for American Civil Liberties Union
et al. as Amici Curiae 6–12. Footnote 6 Florida’s expert in Lightbourne v. McCollum , 969 So. 2d 326 (Fla. 2007) (per
curiam) , who also served as Kentucky’s expert in this case,
testified that the eyelash test is “probably the most common first
assessment that we use in the operating room to determine . . .
when a patient might have crossed the line from being conscious to
unconscious.” 4 Tr. in Florida v. Lightbourne ,
No. 81–170–CF (Fla. Cir. Ct., Marion Cty.), p. 511, online at
http://www.cjlf.org/files/ LightbourneRecord.pdf (all Internet
materials as visited Apr. 14, 2008, and in Clerk of Court’s case
file). “A conscious person, if you touch their eyelashes very
lightly, will blink; an unconscious person typically will not.” Ibid . The shaking and name-calling tests, he further
testified, are similar to those taught in basic life support
courses. See id ., at 512. Footnote 7 In Indiana, a physician also examines the
inmate after injection of the first drug. Timberlake Hearing
199. Footnote 8 The length of the tubing contributes to the
risk that the inmate will receive an inadequate dose of sodium
thiopental. The warden and deputy warden watch for obvious leaks in
the execution chamber, see ante , at 6 (plurality opinion),
but the line also snakes into the neighboring control room through
a small hole in the wall, App. 280.

Summary: The Supreme Court upheld the use of lethal injection as a method of execution, provided it is carried out humanely and in accordance with established protocols. The Court rejected the argument that the risk of pain from potential maladministration of the procedure or the availability of untested alternatives rendered it unconstitutional under the Eighth Amendment.