NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–7955

															_________________

															RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2015]

															Justice Alito delivered the opinion of the
Court.

															Prisoners sentenced to death in the State of
Oklahoma filed an action in federal court under Rev. Stat. §1979,
42 U. S. C. §1983, contending that the method of
execution now used by the State violates the Eighth Amendment
because it creates an unacceptable risk of severe pain. They argue
that midazolam, the first drug employed in the State’s current
three-drug protocol, fails to render a person insensate to pain.
After holding an evidentiary hearing, the District Court denied
four prisoners’ application for a preliminary injunction, finding
that they had failed to prove that midazolam is ineffective. The
Court of Appeals for the Tenth Circuit affirmed and accepted the
District Court’s finding of fact regarding midazolam’s
efficacy.

															For two independent reasons, we also affirm.
First, the prisoners failed to identify a known and available
alternative method of execution that entails a lesser risk of pain,
a requirement of all Eighth Amendment method-of-execution claims.
See Baze v. Rees , 553 U. S. 35, 61 (2008)
(plurality opinion). Second, the District Court did not commit
clear error when it found that the prisoners failed to establish
that Oklahoma’s use of a massive dose of midazolam in its execution
protocol entails a substantial risk of severe pain.

															I

															A

															The death penalty was an accepted punishment
at the time of the adoption of the Constitution and the Bill of
Rights. In that era, death sentences were usually carried out by
hanging. The Death Penalty in America: Current Controversies 4 (H.
Bedau ed. 1997). Hanging remained the standard method of execution
through much of the 19th century, but that began to change in the
century’s later years. See Baze , supra, at 41–42. In
the 1880’s, the Legislature of the State of New York appointed a
commission to find “ ‘the most humane and practical method
known to modern science of carrying into effect the sentence of
death in capital cases.’ ” In re Kemmler , 136
U. S. 436, 444 (1890) . The commission recommended
electrocution, and in 1888, the Legislature enacted a law providing
for this method of execution. Id., at 444–445. In subsequent
years, other States followed New York’s lead in the “ ‘belief
that electrocution is less painful and more humane than
hanging.’ ” Baze, 553 U. S., at 42 (quoting Malloy v. South Carolina , 237 U. S. 180, 185
(1915) ).

															In 1921, the Nevada Legislature adopted another
new method of execution, lethal gas, after concluding that this was
“the most humane manner known to modern science.” State v. Jon , 46 Nev. 418, 437, 211 P. 676, 682 (1923). The Nevada
Supreme Court rejected the argument that the use of lethal gas was
unconstitutional, id., at 435–437, 211 P., at 681–682, and
other States followed Nevada’s lead, see, e.g. , Ariz.
Const., Art. XXII, §22 (1933); 1937 Cal. Stats. ch. 172, §1; 1933
Colo. Sess. Laws ch. 61, §1; 1955 Md. Laws ch. 625, §1, p. 1017;
1937 Mo. Laws p. 222, §1. Nevertheless, hanging and the firing
squad were retained in some States, see, e.g. , 1961 Del.
Laws ch. 309, §2 (hanging); 1935 Kan. Sess. Laws ch. 155, §1
(hanging); Utah Code Crim. Proc. §105–37–16 (1933) (hanging or
firing squad), and electrocution remained the predominant method of
execution until the 9-year hiatus in executions that ended with our
judgment in Gregg v. Georgia , 428 U. S. 153
(1976) . See Baze , supra, at 42.

															After Gregg reaffirmed that the death
penalty does not violate the Constitution, some States once again
sought a more humane way to carry out death sentences. They
eventually adopted lethal injection, which today is “by far the
most prevalent method of execution in the United States.” Baze , supra , at 42. Oklahoma adopted lethal injection
in 1977, see 1977 Okla. Sess. Laws p. 89, and it eventually settled
on a protocol that called for the use of three drugs:
(1) sodium thiopental, “a fast-acting barbiturate sedative
that induces a deep, comalike unconsciousness when given in the
amounts used for lethal injection,” (2) a paralytic agent,
which “inhibits all muscular-skeletal movements and, by paralyzing
the diaphragm, stops respiration,” and (3) potassium chloride,
which “interferes with the electrical signals that stimulate the
contractions of the heart, inducing cardiac arrest.” Baze , supra , at 44; see also Brief for Respondents 9. By 2008, at
least 30 of the 36 States that used lethal injection employed that
particular three-drug protocol. 553 U. S., at 44.

															While methods of execution have changed over the
years, “[t]his Court has never invalidated a State’s chosen
procedure for carrying out a sentence of death as the infliction of
cruel and unusual punishment.” Id., at 48. In Wilkerson v. Utah , 99 U. S. 130 –135 (1879), the
Court upheld a sentence of death by firing squad. In In re
Kemmler , supra , at 447–449, the Court rejected a
challenge to the use of the electric chair. And the Court did not
retreat from that holding even when presented with a case in which
a State’s initial attempt to execute a pris-oner by electrocution
was unsuccessful. Louisiana ex rel. Francis v. Resweber , 329 U. S. 459 –464 (1947) (plurality
opinion). Most recently, in Baze , supra , seven
Justices agreed that the three-drug protocol just discussed does
not violate the Eighth Amendment.

															Our decisions in this area have been animated in
part by the recognition that because it is settled that capital
punishment is constitutional, “[i]t necessarily follows that there
must be a [constitutional] means of carrying it out.” Id., at 47. And because some risk of pain is inherent in any method of
execution, we have held that the Constitution does not require the
avoidance of all risk of pain. Ibid. After all, while most
humans wish to die a painless death, many do not have that good
fortune. Holding that the Eighth Amendment demands the elimination
of essentially all risk of pain would effectively outlaw the death
penalty altogether.

															B Baze cleared any legal obstacle to use
of the most common three-drug protocol that had enabled States to
carry out the death penalty in a quick and painless fashion. But a
practical obstacle soon emerged, as anti-death-penalty advocates
pressured pharmaceutical companies to refuse to supply the drugs
used to carry out death sentences. The sole American manufacturer
of sodium thiopental, the first drug used in the standard
three-drug protocol, was persuaded to cease production of the drug.
After suspending domestic production in 2009, the company planned
to resume production in Italy. Koppel, Execution Drug Halt Raises
Ire of Doctors, Wall Street Journal, Jan. 25, 2011, p. A6.
Activists then pressured both the company and the Italian
Government to stop the sale of sodium thiopental for use in lethal
injections in this country. Bonner, Letter from Europe: Drug
Company in Cross Hairs of Death Penalty Opponents, N. Y.
Times, Mar. 30, 2011; Koppel, Drug Halt Hinders Executions in the
U. S., Wall Street Journal, Jan. 22, 2011, p. A1. That effort
proved successful, and in January 2011, the company announced that
it would exit the sodium thiopental market entirely. See Hospira,
Press Release, Hospira Statement Regarding PentothalTM (sodium
thiopental) Market Exit (Jan. 21, 2011).

															After other efforts to procure sodium thiopental
proved unsuccessful, States sought an alternative, and they
eventually replaced sodium thiopental with pentobarbital, another
barbiturate. In December 2010, Oklahoma became the first State to
execute an inmate using pentobarbital. See Reuters, Chicago
Tribune, New Drug Mix Used in Oklahoma Execution, Dec. 17 2010, p.
41. That execution occurred without incident, and States gradually
shifted to pentobarbital as their supplies of sodium thiopentalran
out. It is reported that pentobarbital was used in all of the 43
executions carried out in 2012. The Death Penalty Institute,
Execution List 2012, online at
www.deathpenaltyinfo.org/execution-list-2012 (all Internet
materials as visited June 26, 2015, and available in Clerk of
Court’s case file). Petitioners concede that pentobarbital, like
sodium thiopental, can “reliably induce and maintain a comalike
state that renders a person insensate to pain” caused by
administration of the second and third drugs in the protocol. Brief
for Petitioners 2. And courts across the country have held that the
use of pentobarbital in executions does not violate the Eighth
Amendment. See, e.g., Jackson v. Danberg , 656
F. 3d 157 (CA3 2011); Beaty v. Brewer , 649
F. 3d 1071 (CA9 2011); DeYoung v. Owens , 646
F. 3d 1319 (CA11 2011); Pavatt v. Jones , 627
F. 3d 1336 (CA10 2010).

															Before long, however, pentobarbital also became
unavailable. Anti-death-penalty advocates lobbied the Danish
manufacturer of the drug to stop selling it for use in executions.
See Bonner, supra . That manufacturer opposed the death
penalty and took steps to block the shipment of pentobarbital for
use in executions in the United States. Stein, New Obstacle to
Death Penalty in U. S., Washington Post, July 3, 2011, p. A4.
Oklahoma eventually became unable to acquire the drug through any
means. The District Court below found that both sodium thiopental
and pentobarbital are now unavailable to Oklahoma. App. 67–68.

															C

															Unable to acquire either sodium thiopental or
pentobarbital, some States have turned to midazolam, a sedative in
the benzodiazepine family of drugs. In October 2013, Florida became
the first State to substitute midazolam for pentobarbital as part
of a three-drug lethal injection protocol. Fernandez, Executions
Stall As States Seek Different Drugs, N. Y. Times, Nov. 9,
2013, p. A1. To date, Florida has conducted 11 executions using
that protocol, which calls for midazolam followed by a paralytic
agent and potassium chloride. See Brief for State of Florida as Amicus Curiae 2–3; Chavez v. Florida SP
Warden , 742 F. 3d 1267, 1269 (CA11 2014). In 2014,
Oklahoma also substituted midazolam for pentobarbital as part of
its three-drug protocol. Oklahoma has already used this three-drug
protocol twice: to execute Clayton Lockett in April 2014 and
Charles Warner in January 2015. (Warner was one of the four inmates
who moved for a preliminary injunction in this case.)

															The Lockett execution caused Oklahoma to
implement new safety precautions as part of its lethal injection
protocol. When Oklahoma executed Lockett, its protocol called for
the administration of 100 milligrams of midazolam, as compared to
the 500 milligrams that are currently required. On the morning of
his execution, Lockett cut himself twice at “ ‘the bend of the
elbow.’ ” App. 50. That evening, the execution team spent
nearly an hour making at least one dozen attempts to establish
intravenous (IV) access to Lockett’s cardiovascular system,
including at his arms and elsewhere on his body. The team
eventually believed that it had established intravenous access
through Lockett’s right femoral vein, and it covered the injection
access point with a sheet, in part to preserve Lockett’s dignity
during the execution. After the team administered the midazolam and
a physician determined that Lockett was unconscious, the team next
administered the paralytic agent (vecuronium bromide) and most of
the potassium chloride. Lockett began to move and speak, at which
point the physician lifted the sheet and determined that the IV had
“infiltrated,” which means that “the IV fluid, rather than entering
Lockett’s blood stream, had leaked into the tissue surrounding the
IV access point.” Warner v. Gross , 776 F. 3d
721, 725 (CA10 2015) (case below). The execution team stopped
administering the remaining potassium chloride and terminated the
execution about 33 minutes after the midazolam was first injected.
About 10 minutes later, Lockett was pronounced dead.

															An investigation into the Lockett execution
concluded that “the viability of the IV access point was the single
greatest factor that contributed to the difficulty in administering
the execution drugs.” App. 398. The investigation, which took five
months to complete, recommended several changes to Oklahoma’s
execution protocol, and Oklahoma adopted a new protocol with an
effective date of September 30, 2014. That protocol allows the
Oklahoma Department of Corrections to choose among four different
drug combinations. The option that Oklahoma plans to use to execute
petitioners calls for the administration of 500 milligrams of
midazolam followed by a paralytic agent and potassium
chloride.[ 1 ] The paralytic
agent may be pancuronium bromide, vecuronium bromide, or rocuronium
bromide, three drugs that, all agree, are functionally equivalent
for purposes of this case. The protocol also includes procedural
safeguards to help ensure that an inmate remains insensate to any
pain caused by the administration of the paralytic agent and
potassium chloride. Those safeguards include: (1) the
insertion of both a primary and backup IV catheter,
(2) procedures to confirm the viability of the IV site,
(3) the option to postpone an execution if viable IV sites
cannot be established within an hour, (4) a mandatory pause
between administration of the first and second drugs,
(5) numerous procedures for monitoring the offender’s
consciousness, including the use of an electrocardiograph and
direct observation, and (6) detailed provisions with respect
to the training and preparation of the execution team. In January
of this year, Oklahoma executed Warner using these revised
procedures and the combination of midazolam, a paralytic agent, and
potassium chloride.

															II

															A

															In June 2014, after Oklahoma switched from
pentobarbital to midazolam and executed Lockett, 21 Oklahoma death
row inmates filed an action under 42 U. S. C. §1983
challenging the State’s new lethal injection protocol. The
complaint alleged that Oklahoma’s use of midazolam violates the
Eighth Amendment’s prohibition of cruel and unusual punishment.

															In November 2014, four of those
plaintiffs—Richard

															Glossip, Benjamin Cole, John Grant, and
Warner—filed a motion for a preliminary injunction. All four men
had been convicted of murder and sentenced to death by Oklahoma
juries. Glossip hired Justin Sneed to kill his employer, Barry Van
Treese. Sneed entered a room where Van Treese was sleeping and beat
him to death with a baseball bat. See Glossip v. State , 2007 OK CR 12, 157 P. 3d 143, 147–149. Cole
murdered his 9-month-old daughter after she would not stop crying.
Cole bent her body backwards until he snapped her spine in half.
After the child died, Cole played video games. See Cole v. State , 2007 OK CR 27, 164 P. 3d 1089, 1092–1093. Grant,
while serving terms of imprisonment totaling 130 years, killed Gay
Carter, a prison food service supervisor, by pulling her into a mop
closet and stabbing her numerous times with a shank. See Grant v. State , 2002 OK CR 36, 58 P. 3d 783,
789. Warner anally raped and murdered an 11-month-old girl. The
child’s injuries included two skull fractures, internal brain
injuries, two fractures to her jaw, a lacerated liver, and a
bruised spleen and lungs. See Warner v. State , 2006
OK CR 40, 144 P. 3d 838, 856–857.

															The Oklahoma Court of Criminal Appeals affirmed
the murder conviction and death sentence of each offender. Each of
the men then unsuccessfully sought both state postconviction and
federal habeas corpus relief. Having exhausted the avenues for
challenging their convictions and sentences, they moved for a
preliminary injunction against Oklahoma’s lethal injection
protocol.

															B

															In December 2014, after discovery, the
District Court held a 3-day evidentiary hearing on the preliminary
injunction motion. The District Court heard testimony from 17
witnesses and reviewed numerous exhibits. Dr. David Lubarsky, an
anesthesiologist, and Dr. Larry Sasich, a doctor of pharmacy,
provided expert testimony about midazolam for petitioners, and Dr.
Roswell Evans, adoctor of pharmacy, provided expert testimony
forrespondents.

															After reviewing the evidence, the District Court
issued an oral ruling denying the motion for a preliminary
injunction. The District Court first rejected petitioners’
challenge under Daubert v. Merrell Dow Pharmaceuticals,
Inc. , 509 U. S. 579 (1993) , to the testimony of Dr.
Evans. It concluded that Dr. Evans, the Dean of Auburn University’s
School of Pharmacy, was well qualified to testify about midazolam’s
properties and that he offered reliable testimony. The District
Court then held that petitioners failed to establish a likelihood
of success on the merits of their claim that the use of midazolam
violates the Eighth Amendment. The court provided two independent
reasons for this conclusion. First, the court held that petitioners
failed to identify a known and available method of execution that
presented a substantially less severe risk of pain than the method
that the State proposed to use. Second, the court found that
petitioners failed to prove that Oklahoma’s protocol “presents a
risk that is ‘sure or very likely to cause serious illness and
needless suffering,’ amounting to ‘an objectively intolerable risk
of harm.’ ” App. 96 (quoting Baze , 553 U. S., at
50). The court emphasized that the Oklahoma protocol featured
numerous safeguards, including the establishment of two IV access
sites, confirmation of the viability of those sites, and monitoring
of the offender’s level of consciousness throughout the
procedure.

															The District Court supported its decision with
findings of fact about midazolam. It found that a 500-milligram
dose of midazolam “would make it a virtual certainty that any
individual will be at a sufficient level of unconsciousness to
resist the noxious stimuli which could occur from the application
of the second and third drugs.” App. 77. Indeed, it found that a
500-milligram dose alone would likely cause death by respiratory
arrest within 30 minutes or an hour.

															The Court of Appeals for the Tenth Circuit
affirmed. 776 F. 3d 721. The Court of Appeals explained that
our decision in Baze requires a plaintiff challenging a
lethal injection protocol to demonstrate that the risk of severe
pain presented by an execution protocol is substantial “ ‘when
compared to the known and available alternatives.’ ” Id., at 732 (quoting Baze , supra , at 61). And
it agreed with the District Court that petitioners had not
identified any such alternative. The Court of Appeals added,
however, that this holding was “not outcome-determinative in this
case” because petitioners additionally failed to establish that the
use of midazolam creates a demonstrated risk of severe pain. 776
F. 3d, at 732. The Court of Appeals found that the District
Court did not abuse its discretion by relying on Dr. Evans’
testimony, and it concluded that the District Court’s factual
findings about midazolam were not clearly erroneous. It also held
that alleged errors in Dr. Evans’ testimony did not render his
testimony unreliable or the District Court’s findings clearly
erroneous.

															Oklahoma executed Warner on January 15, 2015,
but we subsequently voted to grant review and then stayed the
executions of Glossip, Cole, and Grant pending the resolution of
this case. 574 U. S. ___ (2015).

															III

															“A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural
Resources Defense Council, Inc. , 555 U. S. 7, 20 (2008) .
The parties agree that this case turns on whether petitioners are
able to establish a likelihood of success on the merits.

															The Eighth Amendment, made applicable to the
States through the Fourteenth Amendment, prohibits the infliction
of “cruel and unusual punishments.” The controlling opinion in Baze outlined what a prisoner must establish to succeed on
an Eighth Amendment method-of-execution claim. Baze involved
a challenge by Kentucky death row inmates to that State’s
three-drug lethal injection protocol of sodium thiopental,
pancuronium bromide, and potassium chloride. The inmates conceded
that the protocol, if properly administered, would result in a
humane and constitutional execution because sodium thiopental would
render an inmate oblivious to any pain caused by the second and
third drugs. 553 U. S., at 49. But they argued that there was
an unacceptable risk that sodium thiopental would not be properly
administered. Ibid. The inmates also maintained that a
significant risk of harm could be eliminated if Kentucky adopted a
one-drug protocol and additional monitoring by trained personnel. Id., at 51.

															The controlling opinion in Baze first
concluded that prisoners cannot successfully challenge a method of
execution unless they establish that the method presents a risk
that is “ ‘ sure or very likely to cause serious illness
and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Id., at 50 (quoting Helling v. McKinney , 509 U. S. 25 –35 (1993)).
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.’ ” 553 U. S., at 50 (quoting Farmer v. Brennan , 511 U. S. 825 , and n. 9 (1994)). The
controlling opinion also stated that prisoners “cannot successfully
challenge a State’s method of execution merely by showing a
slightly or marginally safer alternative.” 553 U. S., at 51.
Instead, prisoners must identify an alternative that is “feasible,
readily implemented, and in fact significantly reduce[s] a
substantial risk of severe pain.” Id., at 52.

															The controlling opinion summarized the
requirements of an Eighth Amendment method-of-execution claim as
follows: “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. [And] [h]e must show that the risk is substantial
when compared to the known and available alternatives.” Id., at 61. The preliminary injunction posture of the present case thus
requires petitioners to establish a likelihood that they can
establish both that Oklahoma’s lethal injection protocol creates a
demonstrated risk of severe pain and that the risk is substantial
when compared to the known and available alternatives.

															The challenge in Baze failed both because
the Kentucky inmates did not show that the risks they identified
were substantial and imminent, id., at 56, and because they
did not establish the existence of a known and available
alternative method of execution that would entail a significantly
less severe risk, id., at 57–60. Petitioners’ argumentshere
fail for similar reasons. First, petitioners have not proved that
any risk posed by midazolam is substantial when compared to known
and available alternative methods of execution. Second, they have
failed to establish that the District Court committed clear error
when it found that the use of midazolam will not result in severe
pain and suffering. We address each reason in turn.

															IV

															Our first ground for affirmance is based on
petitioners’ failure to satisfy their burden of establishing that
any risk of harm was substantial when compared to a known and
available alternative method of execution. In their amended
complaint, petitioners proffered that the State could use sodium
thiopental as part of a single-drug protocol. They have since
suggested that it might also be constitutional for Oklahoma to use
pentobarbital. But the District Court found that both sodium
thiopental and pentobarbital are now unavailable to Oklahoma’s
Department of Corrections. The Court of Appeals affirmed that
finding, and it is not clearly erroneous. On the contrary, the
record shows that Oklahoma has been unable to procure those drugs
despite a good-faith effort to do so.

															Petitioners do not seriously contest this
factual finding, and they have not identified any available drug or
drugs that could be used in place of those that Oklahoma is now
unable to obtain. Nor have they shown a risk of pain so great that
other acceptable, available methods must be used. Instead, they
argue that they need not identify a known and available method of
execution that presents less risk. But this argument is
inconsistent with the controlling opinion in Baze , 553
U. S., at 61, which imposed a requirement that the Court now
follows.[ 2 ]

															Petitioners contend that the requirement to
identify an alternative method of execution contravenes our
pre- Baze decision in Hill v. McDonough , 547
U. S. 573 (2006) , but they misread that decision. The portion
of the opinion in Hill on which they rely concerned a
question of civil procedure, not a substantive Eighth Amendment
question. In Hill , the issue was whether a challenge
to a method of execution must be brought by means of an application
for a writ of habeas corpus or a civil action under §1983. Id., at 576. We held that a method-of-execution claim must
be brought under §1983 because such a claim does not attack the
validity of the prisoner’s conviction or death sentence. Id., at 579–580. The United States as amicus curiae argued that we should adopt a special pleading requirement to stop
inmates from using §1983 actions to attack, not just a particular
means of execution, but the death penalty itself. To achieve this
end, the United States proposed that an inmate asserting a
method-of-execution claim should be required to plead an acceptable
alternative method of execution. Id. , at 582. We rejected
that argument because “[s]pecific pleading requirements are
mandated by the Federal Rules of Civil Procedure, and not, as a
general rule, through case-by-case determinations of the federal
courts.” Ibid . Hill thus held that §1983 alone does
not impose a heightened pleading requirement. Baze, on the
other hand, addressed the substantive elements of an Eighth
Amendment method-of-execution claim, and it made clear that the
Eighth Amendment requires a prisoner to plead and prove a known and
available alternative. Because petitioners failed to do this, the
District Court properly held that they did not establish a
likelihood of success on their Eighth Amendment claim.

															Readers can judge for themselves how much
distance there is between the principal dissent’s argument against
requiring prisoners to identify an alternative and the view, now
announced by Justices Breyer and Ginsburg, that the death penalty
is categorically unconstitutional. Post, p. ___ (Breyer, J.,
dissenting). The principal dissent goes out of its way to suggest
that a State would violate the Eighth Amendment if it used one of
the methods of execution employed before the advent of lethal
injection. Post, at 30–31. And the principal dissent makes
this suggestion even though the Court held in Wilkerson that
this method (the firing squad) is constitutional and even though,
in the words of the principal dissent, “there is some reason to
think that it is relatively quick and painless.” Post , at
30. Tellingly silent about the methods of execution most commonly
used before States switched to lethal injection (the electric chair
and gas chamber), the principal dissent implies that it would be
unconstitutional to use a method that “could be seen as a
devolution to a more primitive era.” Ibid. If States cannot
return to any of the “more primitive” methods used in the past and
if no drug that meets with the principal dissent’s approval is
available for use in carrying out a death sentence, the logical
conclusion is clear. But we have time and again reaffirmed that
capital punishment is not per se unconstitutional. See, e.g. , Baze , 553 U. S., at 47; id., at
87–88 (Scalia, J., concurring in judgment); Gregg , 428
U. S., at 187 (joint opinion of Stewart, Powell, and Stevens,
JJ.); id., at 226 (White, J., concurring in judgment); Resweber , 329 U. S., at 464; In re Kemmler , 136
U. S., at 447; Wilkerson , 99 U. S., at 134–135. We
decline to effectively overrule these decisions.

															V

															We also affirm for a second reason: The
District Court did not commit clear error when it found that
midazolam is highly likely to render a person unable to feel pain
during an execution. We emphasize four points at the outset of our
analysis.

															First, we review the District Court’s factual
findings under the deferential “clear error” standard. This
standard does not entitle us to overturn a finding “simply because
[we are] convinced that [we] would have decided the case
differently.” Anderson v. Bessemer City , 470
U. S. 564, 573 (1985) .

															Second, petitioners bear the burden of
persuasion on this issue. Baze , supra, at 41.
Although petitionersexpend great effort attacking peripheral
aspects of Dr. Evans’ testimony, they make little attempt to prove
what is critical, i.e. , that the evidence they presented to
the District Court establishes that the use of midazolam is sure or
very likely to result in needless suffering.

															Third, numerous courts have concluded that the
use of midazolam as the first drug in a three-drug protocol is
likely to render an inmate insensate to pain that might result from
administration of the paralytic agent and potassium chloride. See, e.g., 776 F. 3d 721 (case below affirming the District
Court); Chavez v. Florida SP Warden , 742 F. 3d
1267 (affirming the District Court); Banks v. State ,
150 So. 3d 797 (Fla. 2014) (affirming the lower court); Howell v. State , 133 So. 3d 511 (Fla. 2014) (same); Muhammad v. State , 132 So. 3d 176 (Fla. 2013) (same).
(It is noteworthy that one or both of the two key witnesses in this
case—Dr. Lubarsky for petitioners and Dr. Evans for
respondents—were witnesses in the Chavez , Howell , and Muhammad cases.) “Where an intermediate court reviews, and
affirms, a trial court’s factual findings, this Court will not
‘lightly overturn’ the concurrent findings of the two lower
courts.” Easley v. Cromartie , 532 U. S. 234, 242
(2001) . Our review is even more deferential where, as here,
multiple trial courts have reached the same finding, and multiple
appellate courts have affirmed those findings. Cf. Exxon Co., U.
S. A. v. Sofec, Inc. , 517 U. S. 830, 841 (1996)
(explaining that this Court “ ‘cannot undertake to review
concurrent findings of fact by two courts below in the absence of a
very obvious and exceptional showing of error’ ” (quoting Graver Tank & Mfg. Co. v. Linde Air Products Co. ,
336 U. S. 271, 275 (1949) )).

															Fourth, challenges to lethal injection protocols
test the boundaries of the authority and competency of federal
courts. Although we must invalidate a lethal injection protocol if
it violates the Eighth Amendment, federal courts should not
“embroil [themselves] in ongoing scientific controversies beyond
their expertise.” Baze , supra , at 51. Accordingly, an
inmate challenging a protocol bears the burden to show, based on
evidence presented to the court, that there is a substantial risk
of severe pain.

															A

															Petitioners attack the District Court’s
findings of fact on two main grounds.[ 3 ] First, they argue that even if midazolam is powerful
enough to induce unconsciousness, it is too weak to maintain
unconsciousness and insensitivity to pain once the second and third
drugs are administered. Second, while conceding that the
500-milligram dose of midazolam is much higher than the normal
therapeutic dose, they contend that this fact is irrelevant because
midazolam has a “ceiling effect”—that is, at a certain point, an
increase in the dose administered will not have any greater effect
on the inmate. Neither argumentsucceeds.

															The District Court found that midazolam is
capable of placing a person “at a sufficient level of
unconsciousness to resist the noxious stimuli which could occur
from the

															application of the second and third drugs.” App.
77. This conclusion was not clearly erroneous. Respondents’ expert,
Dr. Evans, testified that the proper administration of a
500-milligram dose of midazolam would make it “a virtual certainty”
that any individual would be “at a sufficient level of
unconsciousness to resist the noxious stimuli which could occur
from application of the 2nd and 3rd drugs” used in the Oklahoma
protocol. Id., at 302; see also id. , at 322. And
petitioners’ experts acknowledged that they had no contrary
scientific proof. See id., at 243–244 (Dr. Sasich stating
that the ability of midazolam to render a person insensate to the
second and third drugs “has not been subjected to scientific
testing”); id ., at 176 (Dr. Lubarksy stating that “there is
no scientific literature addressing the use of midazolam as a
manner to administer lethal injections in humans”).

															In an effort to explain this dearth of evidence,
Dr. Sasich testified that “[i]t’s not my responsibility or the
[Food and Drug Administration’s] responsibility to prove that the
drug doesn’t work or is not safe.” Tr. of Preliminary Injunction
Hearing 357 (Tr.). Instead, he stated, “it’s the responsibility of
the proponent to show that the drug is safe and effective.” Ibid. Dr. Sasich confused the standard imposed on a drug
manufacturer seeking approval of a therapeutic drug with the
standard that must be borne by a party challenging a State’s lethal
injection protocol. When a method of execution is authorized under
state law, a party contending that this method violates the Eighth
Amendment bears the burden of showing that the method creates an
unacceptable risk of pain. Here, petitioners’ own experts
effectively conceded that they lacked evidence to prove their case
beyond dispute.

															Petitioners attempt to avoid this deficiency by
criticizing respondents’ expert. They argue that the District Court
should not have credited Dr. Evans’ testimony because he admitted
that his findings were based on “ ‘extrapolat[ions]’ ”
from studies done about much lower therapeutic doses of midazolam.
See Brief for Petitioners 34 (citing Tr. 667–668; emphasis
deleted). But because a 500-milligram dose is never administered
for a therapeutic purpose, extrapolation was reasonable. And the
conclusions of petitioners’ experts were also based on
extrapolations and assumptions. For example, Dr. Lubarsky relied on
“extrapolation of the ceiling effect data.” App. 177.

															Based on the evidence that the parties presented
to the District Court, we must affirm. Testimony from both sides
supports the District Court’s conclusion that midazolam can render
a person insensate to pain. Dr. Evans testified that although
midazolam is not an analgesic, it can nonetheless “render the
person unconscious and ‘insensate’ during the remainder of the
procedure.” Id., at 294. In his discussion about the ceiling
effect, Dr. Sasich agreed that as the dose of midazolam increases,
it is “expected to produce sedation, amnesia, and finally lack of
response to stimuli such as pain (unconsciousness).” Id., at
243. Petitioners argue that midazolam is not powerful enough to
keep a person insensate to pain after the administration of the
second and third drugs, but Dr. Evans presented creditable
testimony to the contrary. See, e.g., Tr. 661 (testifying
that a 500-milligram dose of midazolam will induce a
coma).[ 4 ] Indeed, low doses of
midazolam are sufficient to induce unconsciousness and are even
some-

															times used as the sole relevant drug in certain
medical procedures. Dr. Sasich conceded, for example, that
midazolam might be used for medical procedures like colonoscopies
and gastroscopies. App. 267–268; see also Brief for Respondents
6–8.[ 5 ]

															Petitioners emphasize that midazolam is not
recommended or approved for use as the sole anesthetic during
painful surgery, but there are two reasons why this is not
dispositive. First, as the District Court found, the 500-milligram
dose at issue here “is many times higher than a normal therapeutic
dose of midazolam.” App. 76. The effect of a small dose of
midazolam has minimal probative value about the effect of a
500-milligram dose. Second, the fact that a low dose of midazolam
is not the best drug for maintaining unconsciousness during
surgery says little about whether a 500-milligram dose of midazolam
is constitutionally adequate for purposes of conducting an
execution. We recognized this point in Baze , where we
concluded that although the medical standard of care might require
the use of a blood pressure cuff and an electrocardiogram during
surgeries, this does not mean those procedures are required for an
execution to pass Eighth Amendment scrutiny. 553 U. S., at
60.

															Oklahoma has also adopted important safeguards
to ensure that midazolam is properly administered. The

															District Court emphasized three requirements in
particular: The execution team must secure both a primary and
backup IV access site, it must confirm the viability of the IV
sites, and it must continuously monitor the offender’s level of
consciousness. The District Court did not commit clear error in
concluding that these safeguards help to minimize any risk that
might occur in the event that midazolam does not operate as
intended. Indeed, we concluded in Baze that many of the
safeguards that Oklahoma employs—including the establishment of a
primary and backup IV and the presence of personnel to monitor an
inmate—help in significantly reducing the risk that an execution
protocol will violate the Eighth Amendment. Id. , at 55–56.
And many other safeguards that Oklahoma has adopted mirror those
that the dissent in Baze complained were absent from
Kentucky’s protocol in that case. For example, the dissent argued
that because a consciousness check before injection of the second
drug “can reduce a risk of dreadful pain,” Kentucky’s failure to
include that step in its procedure was unconstitutional. Id. , at 119 (opinion of Ginsburg, J.). The dissent also
complained that Kentucky did not monitor the effectiveness of the
first drug or pause between injection of the first and second
drugs. Id., at 120–121. Oklahoma has accommodated each of
those concerns.

															B

															Petitioners assert that midazolam’s “ceiling
effect” undermines the District Court’s finding about the
effectiveness of the huge dose administered in the Oklahoma
protocol. Petitioners argue that midazolam has a “ceiling” above
which any increase in dosage produces no effect. As a result, they
maintain, it is wrong to assume that a 500-milligram dose has a
much greater effect than a therapeutic dose of about 5 milligrams.
But the mere fact that midazolam has such a ceiling cannot be
dispositive. Dr. Sasich testified that “all drugs essentially have
a ceiling effect.” Tr. 343. The relevant question here is whether
midazolam’s ceiling effect occurs below the level of a
500-milligram dose and at a point at which the drug does not have
the effect of rendering a person insensate to pain caused by the
second and third drugs.

															Petitioners provided little probative evidence
on this point, and the speculative evidence that they did present
to the District Court does not come close to establishing that its
factual findings were clearly erroneous. Dr. Sasich stated in
his expert report that the literature “indicates” that midazolam
has a ceiling effect, but he conceded that he “was unable to
determine the midazolam dose for a ceiling effect on
unconsciousness because there is no literature in which such
testing has been done.” App. 243–244. Dr. Lubarsky’s report was
similar, id., at 171–172, and the testimony of petitioners’
experts at the hearing was no more compelling. Dr. Sasich frankly
admitted that he did a “search to try and determine at what dose of
midazolam you would get a ceiling effect,” but concluded: “I could
not find one.” Tr. 344. The closest petitioners came was Dr.
Lubarsky’s suggestion that the ceiling effect occurs “[p]robably
after about . . . 40 to 50 milligrams,” but he added that
he had not actually done the relevant calculations, and he
admitted: “I can’t tell you right now” at what dose the ceiling
effect occurs. App. 225. We cannot conclude that the District Court
committed clear error in declining to find, based on such
speculative evidence, that the ceiling effect negates midazolam’s
ability to render an inmate insensate to pain caused by the second
and third drugs in the protocol.

															The principal dissent discusses the ceiling
effect at length, but it studiously avoids suggesting that
petitioners presented probative evidence about the dose at which
the ceiling effect occurs or about whether the effect occurs before
a person becomes insensate to pain. The principal dissent avoids
these critical issues by suggesting that such evidence is
“irrelevant if there is no dose at which the drug can
. . . render a person ‘insensate to pain.’ ” Post , at 17. But the District Court heard evidence that the
drug can render a person insensate to pain, and not just from Dr.
Evans: Dr. Sasich (one of petitioners’ own experts) testified that
higher doses of midazolam are “expected to produce . . .
lack of response to stimuli such as pain.” App. 243.[ 6 ]

															In their brief, petitioners attempt to deflect
attention from their failure of proof regarding midazolam’s ceiling
effect by criticizing Dr. Evans’ testimony. But it was petitioners’ burden to establish that midazolam’s ceiling
occurred at a dosage below the massive 500-milligram dose employed
in the Oklahoma protocol and at a point at which the drug failed to
render the recipient insensate to pain. They did not meet that
burden, and their criticisms do not undermine Dr. Evans’ central
point, which the District Court credited, that a properly
administered 500-milligram dose of midazolam will render the
recipient unable to feel pain.

															One of petitioners’ criticisms of Dr. Evans’
testimony is little more than a quibble about the wording chosen by
Dr. Evans at one point in his oral testimony. Petitioners’ expert,
Dr. Lubarsky, stated in his report that midazolam “increases
effective binding of [gamma-aminobutyric acid (GABA)] to its
receptor to induce unconsciousness.”[ 7 ] App. 172. Dr. Evans’ report provided a similar
explanation of the way in which midazolam works, see id., at
293–294, and Dr. Lubarsky did not dispute the accuracy of that
explanation when he testified at the hearing. Petitioners contend,
however, that Dr. Evans erred when he said at the hearing that
“[m]idazolam attaches to GABA receptors, inhibiting GABA .” Id., at 312 (emphasis added). Petitioners contend that this
statement was incorrect because “far from inhibiting GABA,
midazolam facilitates its binding to GABA receptors.” Brief
for Petitioners 38.

															In making this argument, petitioners are simply
quarrelling with the words that Dr. Evans used during oral
testimony in an effort to explain how midazolam works in terms
understandable to a layman. Petitioners do not suggest that the
discussion of midazolam in Dr. Evans’ expert report was inaccurate,
and as for Dr. Evans’ passing use of the term “inhibiting,” Dr.
Lubarksy’s own expert report states that GABA’s “ inhibition of brain activity is accentuated by midazolam.” App. 232 (emphasis
added). Dr. Evans’ oral use of the word “inhibiting”—particularly
in light of his written testimony—does not invalidate the District
Court’s decision to rely on his testimony.

															Petitioners also point to an apparent conflict
between Dr. Evans’ testimony and a declaration by Dr. Lubarsky
(submitted after the District Court ruled) regarding the biological
process that produces midazolam’s ceiling effect. But even if Dr.
Lubarsky’s declaration is correct, it is largely beside the point.
What matters for present purposes is the dosage at which the
ceiling effect kicks in, not the biological process that produces
the effect. And Dr. Lubarsky’s declaration does not render the
District Court’s findings clearly erroneous with respect to that
critical issue.

															C

															Petitioners’ remaining arguments about
midazolam all lack merit. First, we are not persuaded by
petitioners’ argument that Dr. Evans’ testimony should have been
rejected because of some of the sources listed in his report.
Petitioners criticize two of the “selected references” that Dr.
Evans cited in his expert report: the Web site drugs.com and a
material safety data sheet (MSDS) about midazolam. Petitioners’
argument is more of a Daubert challenge to Dr. Evans’
testimony than an argument that the District Court’s findings were
clearly erroneous. The District Court concluded that Dr. Evans was
“well-qualified to give the expert testimony that he gave” and that
“his testimony was the product of reliable principles and methods
reliably applied to the facts of this case.” App. 75–76. To the
extent that the reliability of Dr.Evans’ testimony is even before
us, the District Court’s con-clusion that his testimony was based
on reliable sources is reviewed under the deferential
“abuse-of-discretion” standard. General Elec. Co. v. Joiner , 522 U. S. 136 –143 (1997). Dr. Evans relied on
multiple sources and his own expertise, and his testimony may not
be disqualified simply because one source (drugs.com) warns that it
“ ‘is not intended for medical advice’ ” and another (the
MSDS) states that its information is provided “ ‘without any
warranty, express or implied, regarding its correctness.’ ”
Brief for Petitioners 36. Medical journals that both parties rely
upon typically contain similar disclaimers. See, e.g. ,
Anesthesiology, Terms and Conditions of Use, online at
http://anesthesiology.pubs.asahq.org/ss/terms.aspx (“None of the
information on this Site shall be used to diagnose or treat any
health problem or disease”). Dr. Lubarsky—petitioners’ own
expert—relied on an MSDS to argue that midazolam has a ceiling
effect. And petitioners do not identify any incorrect statements
from drugs.com on which Dr. Evans relied. In fact, although Dr.
Sasich submitted a declaration to the Court of Appeals criticizing
Dr. Evans’ reference to drugs.com, that declaration does not
identify a single fact from that site’s discussion of midazolam
that was materially inaccurate.

															Second, petitioners argue that Dr. Evans’ expert
report contained a mathematical error, but we find this argument
insignificant. Dr. Evans stated in his expert report that the
lowest dose of midazolam resulting in human deaths, according to an
MSDS, is 0.071 mg/kg delivered intravenously. App. 294. Dr.
Lubarsky agreed with this statement. Specifically, he testified
that fatalities have occurred in doses ranging from 0.04 to 0.07
mg/kg, and he stated that Dr. Evans’ testimony to that effect was
“a true statement” (though he added those fatalities occurred among
the elderly). Id., at 217. We do not understand petitioners
to dispute the testimony of Dr. Evans and their own expert that
0.071 mg/kg is a potentially fatal dose of midazolam. Instead, they
make much of the fact that the MSDS attached to Dr. Evans’ report
apparently contained a typographical error and reported the lowest
toxic dose as 71 mg/kg. That Dr. Evans did not repeat that
incorrect figure but instead reported the correct dose supports
rather than undermines his testimony. In any event, the alleged
error in the MSDS is irrelevant because the District Court
expressly stated that it did not rely on the figure in the MSDS.
See id., at 75.

															Third, petitioners argue that there is no
consensus among the States regarding midazolam’s efficacy because
only four States (Oklahoma, Arizona, Florida, and Ohio) have used
midazolam as part of an execution. Petitioners rely on the
plurality’s statement in Baze that “it is difficult to
regard a practice as ‘objectively intolerable’ when it is in fact
widely tolerated,” and the plurality’s emphasis on the fact that 36
States had adopted lethal injection and 30 States used the
particular three-drug protocol at issue in that case. 553
U. S., at 53. But while the near-universal use of the
particular protocol at issue in Baze supported our
conclusion that this protocol did not violate the Eighth Amendment,
we did not say that the converse was true, i.e., that other
protocols or methods of execution are of doubtful
constitutionality. That argument, if accepted, would hamper the
adoption of new and potentially more humane methods of execution
and would prevent States from adapting to changes in the
availability of suitable drugs.

															Fourth, petitioners argue that difficulties with
Oklahoma’s execution of Lockett and Arizona’s July 2014 execution
of Joseph Wood establish that midazolam is sure or very likely to
cause serious pain. We are not persuaded. Aside from the Lockett
execution, 12 other executions have been conducted using the
three-drug protocol at issue here, and those appear to have been
conducted without any significant problems. See Brief for
Respondents 32; Brief for State of Florida as Amicus Curiae 1. Moreover, Lockett was administered only 100 milligrams of
midazolam, and Oklahoma’s investigation into that execution
concluded that the difficulties were due primarily to the execution
team’s inability to obtain an IV access site. And the Wood
execution did not involve the protocol at issue here. Wood did not
receive a single dose of 500 milligrams of midazolam; instead, he
received fifteen 50-milligram doses over the span of two
hours.[ 8 ] Brief for Respondents
12, n. 9. And Arizona used a different two-drug protocol that
paired midazolam with hydromorphone, a drug that is not at issue in
this case. Ibid. When all of the circumstances are
considered, the Lockett and Wood executions have little probative
value for present purposes.

															Finally, we find it appropriate to respond to
the principal dissent’s groundless suggestion that our decision is
tantamount to allowing prisoners to be “drawn and quartered, slowly
tortured to death, or actually burned at the stake.” Post ,
at 28. That is simply not true, and the principal dissent’s resort
to this outlandish rhetoric reveals the weakness of its legal
arguments.

															VI

															For these reasons, the judgment of the Court
of Appeals for the Tenth Circuit is affirmed.

															It is so ordered. Notes 1 The three other drug
combinations that Oklahoma may admin-ister are: (1) a single
dose of pentobarbital, (2) a single dose ofsodium thiopental,
and (3) a dose of midazolam followed by a dose of
hydromorphone. 2 Justice Sotomayor’s
dissent (hereinafter principal dissent), post , at 24–25,
inexplicably refuses to recognize that The Chief Justice’s opinion
in Baze sets out the holding of the case. In Baze ,
the opinion of The Chief Justice was joined by two other Justices.
Justices Scalia and Thomas took the broader position that a method
of execution is consistent with the Eighth Amendment unless it is
deliberately designed to inflict pain. 553 U. S., at 94
(Thomas, J. concurring in judgment). Thus, as explained in Marks v. United States , 430 U. S. 188, 193
(1977) , The Chief Justice’s opinion sets out the holding of the
case. It is for this reason that petitioners base their argument on
the rule set out in that opinion. See Brief for Petitioners 25,
28. 3 Drs. Lubarsky and Sasich,
petitioners’ key witnesses, both testified that midazolam is
inappropriate for a third reason, namely, that it creates a risk of
“paradoxical reactions” such as agitation, hyperactiv-ity, and
combativeness. App. 175 (expert report of Dr. Lubarsky); id. , at 242, 244 (expert report of Dr. Sasich). The District
Court found, however, that the frequency with which a paradoxical
reaction occurs “is speculative” and that the risk “occurs with the
highest frequency in low therapeutic doses.” Id. , at 78.
Indeed, Dr. Sasich conceded that the incidence or risk of
paradoxical reactions with midazolam “is unknown” and that reports
estimate the risk to vary only “from 1% to above 10%.” Id. ,
at 244. Moreover, the mere fact that a method of execution might
result in some unintended side effects does not amount to an Eighth
Amendment violation. “[T]he Constitution does not demand the
avoidance of all risk of pain.” Baze , 553 U. S., at 47
(plurality opinion). 4 The principal dissent
misunderstands the record when it bizarrely suggests that midazolam
is about as dangerous as a peanut. Post , at 15. Dr. Evans
and Dr. Lubarsky agreed that midazolam has caused fatalities in
doses as low as 0.04 to 0.07 milligrams per kilogram. App. 217,
294. Even if death from such low doses is a “rare, unfortunate side
effec[t],” post , at 15, the District Court found that a
massive 500-milligram dose—many times higher than the lowest dose
reported to have produced death—will likely cause death in under an
hour. App. 76–77. 5 Petitioners’ experts also
declined to testify that a 500-milligram dose of midazolam is
always insufficient to place a person in a coma and render him
insensate to pain. Dr. Lubarsky argued only that the 500-milligram
dose cannot “reliably” produce a coma. Id. , 228. And when
Dr. Sasich was asked whether he could say to a reasonable degree of
certainty that a 500-milligram dose of midazolam would not render
someone unconscious, he replied that he could not. Id., at
271–272. A product label for midazolam that Dr. Sasich attached to
his expert report also acknowledged that an overdose of midazolam
can cause a coma. See Expert Report of Larry D. Sasich, in No.
14–6244 (CA10), p. 34. 6 The principal dissent
emphasizes Dr. Lubarsky’s supposedly contrary testimony, but the
District Court was entitled to credit Dr. Evans (and Dr. Sasich)
instead of Dr. Lubarsky on this point. And the District Court had
strong reasons not to credit Dr. Lubarsky, who even argued that a
protocol that includes sodium thiopental is “constructed to
produce egregious harm and suffering.” App. 227. 7 GABA is “an amino acid
that functions as an inhibitory neurotransmitter in the brain and
spinal cord.” Mosby’s Medical Dictionary 8 The principal dissent
emphasizes Dr. Lubarsky’s testimony that it is irrelevant that Wood
was administered the drug over a 2-hour period. Post , at 20.
But Dr. Evans disagreed and testified that if a 750-milligram dose
“was spread out over a long period of time,” such as one hour
( i.e., half the time at issue in the Wood execution), the
drug might not be as effective as if it were administered all at
once. Tr. 667. The principal dissent states that this
“pronouncement was entirely unsupported,” post, at 20,
n. 6, but it was supported by Dr. Evans’ expertise and decades
of experience. And it would be unusual for an expert testifying on
the stand to punctuate each sentence with citation to
a SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–7955

															_________________

															RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2015]

															Justice Scalia, with whom Justice Thomas
joins, concurring.

															I join the opinion of the Court, and write to
respond to Justice Breyer’s plea for judicial abolition of the
death penalty.

															Welcome to Groundhog Day. The scene is familiar:
Petitioners, sentenced to die for the crimes they committed
(including, in the case of one petitioner since put to death,
raping and murdering an 11–month-old baby), come before this Court
asking us to nullify their sentences as “cruel and unusual” under
the Eighth Amendment. They rely on this provision because it is the
only provision they can rely on. They were charged by a
sovereign State with murder. They were afforded counsel and tried
before a jury of their peers—tried twice, once to determine whether
they were guilty and once to determine whether death was the
appropriate sentence. They were duly convicted and sentenced. They
were granted the right to appeal and to seek postconviction relief,
first in state and then in federal court. And now, acknowledging
that their convictions are unassailable, they ask us for clemency,
as though clemency were ours to give.

															The response is also familiar: A vocal minority
of the Court, waving over their heads a ream of the most recent
abolitionist studies (a superabundant genre) as though they have
discovered the lost folios of Shakespeare, insist that now ,
at long last, the death penalty must be abolished for good. Mind
you, not once in the history of the American Republic has this
Court ever suggested the death penalty is categorically
impermissible. The reason is obvious: It is impossible to hold
unconstitutional that which the Constitution explicitly contemplates . The Fifth Amendment provides that “[n]o person
shall be held to answer for a capital . . . crime, unless
on a presentment or indictment of a Grand Jury,” and that no person
shall be “deprived of life . . . without due process of
law.” Nevertheless, today Justice Breyer takes on the role of the
abolitionists in this long-running drama, arguing that the text of
the Constitution and two centuries of history must yield to his “20
years of experience on this Court,” and inviting full briefing on
the continued permissibility of capital punishment, post , at
2 (dissenting opinion).

															Historically, the Eighth Amendment was
understood to bar only those punishments that added “ ‘terror,
pain, or disgrace’ ” to an otherwise permissible capital
sentence. Baze v. Rees , 553 U. S. 35, 96 (2008)
(Thomas, J., concurring in judgment). Rather than bother with this
troubling detail, Justice Breyer elects to contort the
constitutional text. Redefining “cruel” to mean “unreliable,”
“arbitrary,” or causing “excessive delays,” and “unusual” to
include a “decline in use,” he proceeds to offer up a white paper
devoid of any meaningful legal argument.

															Even accepting Justice Breyer’s rewriting of the
Eighth Amendment, his argument is full of internal contradictions
and (it must be said) gobbledy-gook. He says that the death penalty
is cruel because it is unreliable; but it is convictions ,
not punishments , that are unreliable. Moreover, the
“pressure on police, prosecutors, and jurors to secure a
conviction,” which he claims increases the risk of wrongful
convictions in capital cases, flows from the nature of the crime,
not the punishment that follows its commission. Post, at 6.
Justice Breyer acknowledges as much: “[T]he crimes at issue in
capital cases are typically horrendous murders, and thus
accompanied by intense community pressure.” Ibid. That same
pressure would exist, and the same risk of wrongful convictions, if
horrendous death-penalty cases were converted into equally
horrendous life-without-parole cases. The reality is that any
innocent defendant is infinitely better off appealing a death
sentence than a sentence of life imprisonment. (Which, again,
Justice Breyer acknowledges: “[C]ourts (or State Governors) are 130
times more likely to exonerate a defendant where a death sentence
is at issue,” post , at 5.) The capital convict will obtain
endless legal assistance from the abolition lobby (and legal
favoritism from abolitionist judges), while the lifer languishes
unnoticed behind bars.

															Justice Breyer next says that the death penalty
is cruel because it is arbitrary. To prove this point, he points to
a study of 205 cases that “measured the ‘egregiousness’ of the
murderer’s conduct” with “a system of metrics,” and then “compared
the egregiousness of the conduct of the 9 defendants sentenced to
death with the egregiousness of the conduct of defendants in the
remaining 196 cases [who were not sentenced to death],” post, at 10–11. If only Aristotle, Aquinas, and Hume knew
that moral philosophy could be so neatly distilled into a
pocket-sized, vade mecum “system of metrics.” Of course it
cannot: Egregiousness is a moral judgment susceptible of few
hard-and-fast rules. More importantly, egregiousness of the crime
is only one of several factors that render a punishment
condign—culpability, rehabilitative potential, and the need for
deterrence also are relevant. That is why this Court has required
an individualized consideration of all mitigating circumstances,
rather than formulaic application of some egregiousness test.

															It is because these questions are contextual and
admit of no easy answers that we rely on juries to make judgments
about the people and crimes before them. The fact that these
judgments may vary across cases is an inevitable consequence of the
jury trial, that cornerstone of Anglo-American judicial procedure.
But when a punishment is authorized by law—if you kill you are
subject to death—the fact that some defendants receive mercy from
their jury no more renders the underlying punishment “cruel” than
does the fact that some guilty individuals are never apprehended,
are never tried, are acquitted, or arepardoned.

															Justice Breyer’s third reason that the death
penalty is cruel is that it entails delay, thereby (1) subjecting
inmates to long periods on death row and (2) undermining the
penological justifications of the death penalty. The first point is
nonsense. Life without parole is an even lengthier period than the
wait on death row; and if the objection is that death row is a more
confining environment, the solution should be modifying the
environment rather than abolishing the death penalty. As for the
argument that delay undermines the penological rationales for the
death penalty: In insisting that “the major alternative to capital
punishment—namely, life in prison without possibility of
parole—also incapacitates,” post , at 24, Justice Breyer
apparently forgets that one of the plaintiffs in this very
case was already in prison when he committed the murder that
landed him on death row. Justice Breyer further asserts that
“whatever interest in retribution might be served by the death
penalty as currently administered, that interest can be served
almost as well by a sentence of life in prison without parole,” post , at 27. My goodness. If he thinks the death penalty not
much more harsh (and hence not much more retributive), why is he so
keen to get rid of it? With all due respect, whether the death
penalty and life imprisonment constitute more-or-less equivalent
retribution is a question far above the judiciary’s pay grade.
Perhaps Justice Breyer is more forgiving—or more enlightened—than
those who, like Kant, believe that death is the only just
punishment for taking a life. I would not presume to tell parents
whose life has been forever altered by the brutal murder of a child
that life imprisonment is punishment enough.

															And finally, Justice Breyer speculates that it
does not “seem likely” that the death penalty has a “significant”
deterrent effect. Post , at 25. It seems very likely to me,
and there are statistical studies that say so. See, e.g., Zimmerman, State Executions, Deterrence, and the Incidence of
Murder, 7 J. Applied Econ. 163, 166 (2004) (“[I]t is estimated that
each state execution deters approximately fourteen murders per year
on average”); Dezhbakhsh, Rubin, & Shepherd, Does Capital
Punishment Have a Deterrent Effect? New Evidence from
Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003)
(“[E]ach execution results, on average, in eighteen fewer murders”
per year); Sunstein & Vermeule, Is Capital Punishment Morally
Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan.
L. Rev. 703, 713 (2005) (“All in all, the recent evidence of a
deterrent effect from capital punishment seems impressive,
especially in light of its ‘apparent power and unanimity’ ”).
But we federal judges live in a world apart from the vast majority
of Americans. After work, we retire to homes in placid suburbia or
to high-rise co-ops with guards at the door. We are not confronted
with the threat of violence that is ever present in many Americans’
everyday lives. The suggestion that the incremental deterrent
effect of capital punishment does not seem “significant” reflects,
it seems to me, a let-them-eat-cake obliviousness to the needs of
others. Let the People decide how much incremental deterrence is
appropriate.

															Of course, this delay is a problem of the
Court’s own making. As Justice Breyer concedes, for more than 160
years, capital sentences were carried out in an average of two
years or less. Post , at 18. But by 2014, he tells us, it
took an average of 18 years to carry out a death sentence. Id., at 19. What happened in the intervening years? Nothing
other than the proliferation of labyrinthine restrictions on
capital punishment, promulgated by this Court under an
interpretation of the Eighth Amendment that empowered it to divine
“the evolving standards of decency that mark the progress of a
maturing society,” Trop v. Dulles , 356 U. S. 86,
101 (1958) (plurality opinion)—a task for which we are eminently
ill suited. Indeed, for the past two decades, Justice Breyer has
been the Drum Major in this parade. His invocation of the resultant
delay as grounds for abolishing the death penalty calls to mind the
man sentenced to death for killing his parents, who pleads for
mercy on the ground that he is an orphan. Amplifying the surrealism
of his argument, Justice Breyer uses the fact that many States have
abandoned capital punishment—have abandoned it precisely because
of the costs those suspect decisions have imposed—to conclude
that it is now “unusual.” Post , at 33–39. (A caution to the
reader: Do not use the creative arithmetic that Justice Breyer
employs in counting the number of States that use the death penalty
when you prepare your next tax return; outside the world of our
Eighth Amendment abolitionist-inspired jurisprudence, it will be
regarded as more misrepresentation than math.)

															If we were to travel down the path that Justice
Breyer sets out for us and once again consider the
constitutionality of the death penalty, I would ask that counsel
also brief whether our cases that have abandoned the historical
understanding of the Eighth Amendment, beginning with Trop ,
should be overruled. That case has caused more mischief to our
jurisprudence, to our federal system, and to our society than any
other that comes to mind. Justice Breyer’s dissent is the living
refutation of Trop ’s assumption that this Court has the
capacity to recognize “evolving standards of decency.” Time and
again, the People have voted to exact the death penalty as
punishment for the most serious of crimes. Time and again, this
Court has upheld that decision. And time and again, a vocal
minor-ity of this Court has insisted that things have “changed
radically,” post , at 2, and has sought to replace the
judgments of the People with their own standards of decency.

															Capital punishment presents moral questions that
philosophers, theologians, and statesmen have grappled with for
millennia. The Framers of our Constitution disagreed bitterly on
the matter. For that reason, they handled it the same way they
handled many other controversial issues: they left it to the People
to decide. By arrogating to himself the power to overturn that
decision, Justice Breyer does not just reject the death penalty, he
rejects the Enlightenment. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–7955

															_________________

															RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2015]

															Justice Thomas, with whom Justice Scalia
joins, concurring.

															I agree with the Court that petitioners’ Eighth
Amendment claim fails. That claim has no foundation in the Eighth
Amendment, which prohibits only those “method[s] of execution” that
are “deliberately designed to inflict pain.” Baze v. Rees , 553 U. S. 35, 94 (2008) (Thomas, J., concurring
in judgment). Because petitioners make no allegation that Oklahoma
adopted its lethal injection protocol “to add elements of terror,
pain, or disgrace to the death penalty,” they have no valid claim. Id., at 107. That should have been the end of this case, but
our precedents have predictably transformed the federal courts
“into boards of inquiry charged with determining the ‘best
practices’ for executions,” id., at 101 (internal quotation
marks omitted), necessitating the painstaking factual inquiry the
Court undertakes today. Although I continue to believe that the
broader interpretation of the Eighth Amendment advanced in the
plurality opinion in Baze is erroneous, I join the Court’s
opinion in full because it correctly explains why petitioners’
claim fails even under that controlling opinion.

															I write separately to respond to Justice
Breyer’s dissent questioning the constitutionality of the death
penalty generally. No more need be said about the constitutional
arguments on which Justice Breyer relies, as my colleagues and I
have elsewhere refuted them.[ 1 ]
But Justice Breyer’s assertion, post, at 10, that the death
penalty in this country has fallen short of the aspiration that
capital punishment be reserved for the “worst of the worst” —a
notion itself based on an implicit proportionality principle that
has long been discredited, see Harmelin v. Michigan ,
501 U. S. 957, 966 (1991) (opinion of Scalia, J.)—merits
further comment. His conclusion is based on an analysis that itself
provides a powerful case against enforcing an imaginary
constitutional rule against “arbitrariness.”

															The thrust of Justice Breyer’s argument is that
empirical studies performed by death penalty abolitionists reveal
that the assignment of death sentences does not necessarily
correspond to the “egregiousness” of the crimes, but instead
appears to be correlated to “arbitrary” factors, such as the
locality in which the crime was committed. Relying on these studies
to determine the constitutionality of the death penalty fails to
respect the values implicit in the Constitution’s allocation of
decisionmaking in this context. The Donohue study, on which Justice
Breyer relies most heavily, measured the “egregiousness” (or
“deathworthiness”) of murders by asking lawyers to identify the
legal grounds for aggravation in each case, and by asking law
students to evaluate written summaries of the murders and assign
“egregiousness” scores based on a rubric designed to capture and
standardize their moral judgments. Donohue, An Empirical Evaluation
of the Connecticut Death Penalty System Since 1973, Are There
Unlawful Racial, Gender, and Geographic Disparities? 11 J. of
Empirical Legal Studies 637, 644–645 (2014). This exercise in some
ways approximates the function performed by jurors, but there is at
least one critical difference: The law students make their moral
judgments based on written summaries—they do not sit through hours,
days, or weeks of evidence detailing the crime; they do not have an
opportunity to assess the credibility of witnesses, to see the
remorse of the defendant, to feel the impact of the crime on the
victim’s family; they do not bear the burden of deciding the fate
of another human being; and they are not drawn from the community
whose sense of security and justice may have been torn asunder by
an act of callous disregard for human life. They are like appellate
judges and justices, reviewing only a paper record of each side’s
case for life or death.

															There is a reason the choice between life and
death, within legal limits, is left to the jurors and judges who
sit through the trial, and not to legal elites (or law
students).[ 2 ] That reason is
memorialized not once, but twice, in our Constitution: Article III
guarantees that “[t]he Trial of all Crimes, except in cases of
Impeachment, shall be by Jury” and that “such Trial shall be held
in the State where the said Crimes shall have been committed.” Art.
III, §2, cl. 3. And the Sixth Amendment promises that “[i]n
all criminal prosecutions, the accused shall enjoy the right to a
. . . trial, by an impartial jury of the State and
district wherein the crime shall have been committed.” Those
provisions ensure that capital defendants are given the option to
be sentenced by a jury of their peers who, collectively, are better
situated to make the moral judgment between life and death than are
the products of contemporary American law schools.

															It should come as no surprise, then, that the
primary explanation a regression analysis revealed for the gap
between the egregiousness scores and the actual sentences was not
the race or sex of the offender or victim, but the locality in
which the crime was committed. Donohue, supra, at 640; see
also post, at 12 (Breyer, J., dissenting). What is more
surprising is that Justice Breyer considers this factor to be
evidence of arbitrariness. See ibid. The constitutional
provisions just quoted, which place such decisions in the hands of
jurors and trial courts located where “the crime shall have been
committed,” seem deliberately designed to introduce that
factor.

															In any event, the results of these studies are
inherently unreliable because they purport to control for
egregiousness by quantifying moral depravity in a process that is
itself arbitrary, not to mention dehumanizing. One such study’s
explanation of how the author assigned “depravity points” to
identify the “worst of the worst” murderers proves the point well.
McCord, Lightning Still Strikes, 71 Brooklyn L. Rev. 797,
833–834 (2005). Each aggravating factor received a point value
based on the “blameworth[iness]” of the action associated with it. Id., at 830. Killing a prison guard, for instance, earned a
defendant three “depravity points” because it improved the case for
complete incapacitation, while killing a police officer merited
only two, because, “considered dispassionately,” such acts do “not
seem be a sine qua non of the worst criminals.” Id., at 834–836. (Do not worry, the author reassures us, “many killers
of police officers accrue depravity points in other ways that
clearly put them among the worst criminals.” Id., at 836.)
Killing a child under the age of 12 was worth two depravity points,
because such an act “seems particularly heartless,” but killing
someone over the age of 70 earned the murderer only one, for
although “elderly victims tug at our hearts,” they do so “less”
than children “because the promise of a long life is less.” Id., at 836, 838. Killing to make a political statement was
worth three depravity points; killing out of racial hatred, only
two. Id., at 835, 837. It goes on, but this small sample of
the moral judgments on which this study rested shows just how
unsuitable this evidence is to serve as a basis for a judicial
decision declaring unconstitutional a punishment duly enacted in
more than 30 States, and by the Federal Government.

															We owe victims more than this sort of
pseudoscientific assessment of their lives. It is bad enough to
tell a mother that her child’s murder is not “worthy” of society’s
ultimate expression of moral condemnation. But to do so based on
cardboard stereotypes or cold mathematical calculations is beyond
my comprehension. In my decades on the Court, I have not seen a
capital crime that could not be considered sufficiently
“blameworthy” to merit a death sentence (even when genuine
constitutional errors justified a vacatur of that
sentence).[ 3 ]

															A small sample of the applications for a stay of
execution that have come before the Court this Term alone proves my
point. Mark Christeson was due to be executed in October 2014 for
his role in the murder of Susan Brouk and her young children,
Adrian and Kyle. After raping Ms. Brouk at gunpoint, he and his
accomplice drove the family to a remote pond, where Christeson cut
Ms. Brouk’s throat with a bone knife. State v. Christeson , 50 S. W. 3d 251, 257–258 (Mo. 2001).
Although bleeding profusely, she stayed alive long enough to tell
her children she loved them and to watch as Christeson murdered
them—her son, by cutting his throat twice and drowning him; her
daughter, by pressing down on her throat until she suffocated. Ibid. Christeson and his accomplice then threw Ms.
Brouk—alive but barely breathing—into the pond to drown on top of
her dead children. Ibid. This Court granted him a stay of
execution. Christeson v. Roper , 574 U. S. ___
(2014). Lisa Ann Coleman was not so lucky. She was executed on
September 17, 2014, for murdering her girlfriend’s son, 9-year-old
Davontae Williams, by slowly starving him to death. Coleman v. State , 2009 WL 4696064, *1 (Tex. Crim. App., Dec. 9,
2009). When he died, Davontae had over 250 distinct
injuries—including cigarette burns and ligature marks—on his
36-pound frame. Id., at *2. Infections from untreated wounds
contributed to his other cause of death: pneumonia. Id., at
*1–*2. And Johnny Shane Kormondy, who met his end on January 15,
2015, did so after he and his two accomplices invaded the home of a
married couple, took turns raping the wife and forcing her to
perform oral sex at gunpoint—at one point, doing both
simultaneously—and then put a bullet in her husband’s head during
the final rape. Kormondy v. Secretary, Fla. Dept. of
Corrections , 688 F. 3d 1244, 1247–1248 (CA11 2012).

															Some of our most “egregious” cases have been
those in which we have granted relief based on an unfounded Eighth
Amendment claim. For example, we have granted relief in a number of
egregious cases based on this Court’s decision in Atkins v. Virginia , 536 U. S. 304 (2002) , exempting certain
“mentally retarded” offenders from the death penalty. Last Term,
the Court granted relief to a man who kidnaped, beat, raped, and
murdered a 21-year-old pregnant newlywed, Karol Hurst, also
murdering her unborn child, and then, on the same day, murdered a
sheriff’s deputy acting in the line of duty. Hall v. Florida , 572 U. S. ___, ___ (2014) (slip op., at 1).
And in Atkins itself, the Court granted relief to a man who
carjacked Eric Michael Nesbitt, forced him to withdraw money from a
bank, drove him to a secluded area, and then shot him multiple
times before leaving him to bleed to death. Atkins v. Commonwealth , 257 Va. 160, 166–167, 510 S. E. 2d 445,
449–450 (1999).

															The Court has also misinterpreted the Eighth
Amendment to grant relief in egregious cases involving rape. In Kennedy v. Louisiana , 554 U. S. 407 (2008) , the
Court granted relief to a man who had been sentenced to death for
raping his 8-year-old stepdaughter. The rape was so violent that it
“separated her cervix from the back of her vagina, causing her
rectum to protrude into the vaginal structure,” and tore her
“entire perineum . . . from the posterior fourchette to
the anus.” Id., at 414 . The evidence indicated that
the petitioner spent at least an hour and half attempting to
destroy the evidence of his crime before seeking emergency
assistance, even as his stepdaughter bled profusely from her
injuries. Id., at 415. And in Coker v. Georgia , 433 U. S. 584 (1977) (plurality opinion), the
Court granted relief to a petitioner who had escaped from prison,
broken into the home of a young married couple and their newborn,
forced the wife to bind her husband, gagged her husband with her
underwear, raped her (even after being told that she was recovering
from a recent childbirth), and then kidnaped her after threatening
her husband, Coker v. State , 234 Ga. 555, 556–557,
216 S. E. 2d 782, 786–787 (1975). In each case, the Court
crafted an Eighth Amendment right to be free from execution for the
crime of rape—whether it be of an adult, Coker , 433
U. S., at 592, or a child, Kennedy , supra , at
413.

															The Court’s recent decision finding that the
Eighth Amendment prohibits the execution of those who committed
their crimes as juveniles is no different. See Roper v. Simmons , 543 U. S. 551 (2005) . Although the Court had
rejected the claim less than two decades earlier, Stanford v. Kentucky , 492 U. S. 361 (1989) , it decided to
revisit the issue for a petitioner who had slain his victim because
“he wanted to murder someone” and believed he could “get away with
it” because he was a few months shy of his 18th birthday. 543
U. S., at 556. His randomly chosen victim was Shirley Crook,
whom he and his friends kidnaped in the middle of the night, bound
with duct tape and electrical wire, and threw off a bridge to drown
in the river below. Id., at 556–557. The State of Alabama’s
brief in that case warned the Court that its decision would free
from death row a number of killers who had been sentenced for
crimes committed as juveniles. Brief for State of Alabama
et al. as Amici Curiae in Roper v. Simmons , O. T. 2014, No. 03–633. Mark Duke, for example,
murdered his father for refusing to loan him a truck, and his
father’s girlfriend and her two young daughters because he wanted
no witnesses to the crime. Id., at 4. He shot his father and
his father’s girlfriend pointblank in the face as they pleaded for
their lives. Id., at 5–6. He then tracked the girls down in
their hiding places and slit their throats, leaving them alive for
several minutes as they drowned in their own blood. Id., at
6–7.

															Whatever one’s views on the permissibility or
wisdom of the death penalty, I doubt anyone would disagree that
each of these crimes was egregious enough to merit the severest
condemnation that society has to offer. The only constitutional problem with the fact that these criminals
were spared that condemnation, while others were not, is that their
amnesty came in the form of unfounded claims. Arbitrariness has
nothing to do with it.[ 4 ] To
the extent that we are ill at ease with these disparate outcomes,
it seems to me that the best solution is for the Court to stop
making up Eighth Amendment claims in its ceaseless quest to end the
death penalty through undemocratic means. Notes 1 Generally: Baze v. Rees , 553 U. S. 35 –97 (2008) (Thomas, J., concurring
in judgment) (explaining that the Cruel and Unusual Punishments
Clause does not prohibit the death penalty, but only torturous
punishments); Graham v. Collins , 506 U. S. 461,
488 (1993) (Thomas, J., concurring); Gardner v. Florida , 430 U. S. 349, 371 (1977) (Rehnquist, J.,
dissenting) (“The prohibition of the Eighth Amendment relates to
the character of the punishment, and not to the process by which it
is imposed”). On reliability: Kansas v. Marsh , 548
U. S. 163, 181 (2006) (noting that the death penalty remains
constitutional despite imperfections in the criminal justice
system); McGautha v. California , 402 U. S. 183,
221 (1971) (“[T]he Federal Constitution, which marks the limits of
our authority in these cases, does not guarantee trial procedures
that are the best of all worlds, or that accord with the most
enlightened ideas of students of the infant science of criminology,
or even those that measure up to the individual predilections of
members of this Court”). On arbitrariness: Ring v. Arizona , 536 U. S. 584, 610 (2002) (Scalia, J.,
concurring) (explaining that what compelled States to specify
“ ‘aggravating factors’ ” designed to limit the death
penalty to the worst of the worst was this Court’s baseless
jurisprudence concerning juror discretion); McCleskey v. Kemp , 481 U. S. 279 –312 (1987) (noting that various
procedures, including the right to a jury trial, constitute a
defendant’s protection against arbitrariness in the application of
the death penalty). On excessive delays: Knight v. Florida , 528 U. S. 990 (1999) (Thomas, J., concurring
in denial of certiorari) (“I am unaware of any support in the
American constitutional tradition or in this Court’s precedent for
the proposition that a defendant can avail himself of the panoply
of appellate and collateral procedures and then complain when his
execution is delayed”); see also Johnson v. Bredesen ,
558 U. S. 1067, 1070 (2009) (Thomas, J., concurring in denial
of certiorari). And on the decline in use of the death penalty: Atkins v. Virginia , 536 U. S. 304, 345 (2002)
(Scalia, J., dissenting); Woodson v. North Carolina ,
428 U. S. 280 –310 (1976) (Rehnquist, J.,
dissenting). 2 For some, a faith in the
jury seems to be correlated to that institution’s likelihood of preventing imposition of the death penalty. See, e.g., Ring v. Arizona , 536 U. S. 584, 614
(2002) (Breyer, J., concurring in judgment) (arguing that “the
Eighth Amendment requires that a jury, not a judge, make the
decision to sentence a defendant to death”); Wainwright v. Witt , 469 U. S. 412, 440, n. 1 (1985) (Brennan, J.,
dissenting) (“However heinous Witt’s crime, the majority’s vivid
portrait of its gruesome details has no bearing on the issue before
us. It is not for this Court to decide whether Witt deserves to
die. That decision must first be made by a jury of his
peers”). 3 For his part, Justice
Breyer explains that his experience on the Court has shown him
“discrepancies for which [he] can find no rational explanations.” Post, at 16. Why, he asks, did one man receive death for a
single-victim murder, while another received life for murdering a
young mother and nearly killing her infant? Ibid. The
outcomes in those two cases may not be morally compelled, but there
was certainly a rational explanation for them: The first man, who
had previously confessed to another murder, killed a disabled man
who had offered him a place to stay for the night. State v. Badgett , 361 N. C. 234, 239–240, 644 S. E. 2d 206,
209–210 (2007). The killer stabbed his victim’s throat and
prevented him from seeking medical attention until he bled to
death. Ibid. The second man expressed remorse for his crimes
and claimed to suffer from mental disorders. See Charbonneau, Andre
Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26,
2004, online at
http:/ / www.wral.com / news / local / story / 109648
(all Internet materials as visited June 25, 2015, and available in
Clerk of Court’s case file); Charbonneau, Jury Finds Andre Edwards
Guilty of First-Degree Murder, WRAL, Mar. 23, 2004, online at
http:/ / www.wral.com / news / local / story / 109563 . The other “discrepancies” similarly have “rational” explanations,
even if reasonable juries could have reached different
results. 4 Justice Breyer appears to
acknowledge that our decision holding mandatory death penalty
schemes unconstitutional, Woodson v. North Carolina ,
428 U. S. 280 (1976) (plurality opinion), may have introduced
the problem of arbitrary application. Post , at 14. I agree
that Woodson eliminated one reliable legislative response to
concerns about arbitrariness. Graham v. Collins , 506
U. S. 461, 486 (1993) (Thomas, J., concurring). Because that
decision was also questionable on constitutional grounds, id., at 486–488, I would be willing to revisit it in a
future case. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–7955

															_________________

															RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2015]

															Justice Breyer, with whom Justice Ginsburg
joins, dissenting.

															For the reasons stated in Justice Sotomayor’s
opinion, I dissent from the Court’s holding. But rather than try to
patch up the death penalty’s legal wounds one at a time, I would
ask for full briefing on a more basic question: whether the death
penalty violates the Constitution.

															The relevant legal standard is the standard set
forth in the Eighth Amendment. The Constitution there forbids the
“inflict[ion]” of “cruel and unusual punishments.” Amdt. 8. The
Court has recognized that a “claim that punishment is excessive is
judged not by the standards that prevailed in 1685 when Lord
Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of
Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia , 536 U. S. 304, 311 (2002) .
Indeed, the Constitution prohibits various gruesome punishments
that were common in Blackstone’s day. See 4 W. Blackstone,
Commentaries on the Laws of England 369–370 (1769) (listing
mutilation and dismembering, among other punishments).

															Nearly 40 years ago, this Court upheld the death
pen-alty under statutes that, in the Court’s view, contained
safeguards sufficient to ensure that the penalty would be applied
reliably and not arbitrarily. See Gregg v. Georgia ,
428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell,
and Stevens, JJ.); Proffitt v. Florida , 428
U. S. 242, 247 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.); Jurek v. Texas , 428 U. S. 262,
268 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);
but cf. Woodson v. North Carolina , 428 U. S.
280, 303 (1976) (plurality opinion) (striking down mandatory death
penalty); Roberts v. Louisiana , 428 U. S. 325,
331 (1976) (plurality opinion) (similar). The circumstances and the
evidence of the death penalty’s application have changed radically
since then. Given those changes, I believe that it is now time to
reopen the question.

															In 1976, the Court thought that the
constitutional infirmities in the death penalty could be healed;
the Court in effect delegated significant responsibility to the
States to develop procedures that would protect against those
constitutional problems. Almost 40 years of studies, surveys, and
experience strongly indicate, however, that this effort has failed.
Today’s administration of the death penalty involves three
fundamental constitutional defects: (1) serious unreliability, (2)
arbitrariness in application, and (3) unconscionably long delays
that undermine the death penalty’s penological purpose. Perhaps as
a result, (4) most places within the United States have abandoned
its use.

															I shall describe each of these considerations,
emphasizing changes that have occurred during the past four
decades. For it is those changes, taken together with my own 20
years of experience on this Court, that lead me to believe that the
death penalty, in and of itself, now likely constitutes a legally
prohibited “cruel and unusual punishmen[t].” U. S. Const.,
Amdt. 8.

															I “Cruel”—Lack of Reliability This Court has specified that the finality of
death creates a “qualitative difference” between the death penalty
and other punishments (including life in prison). Woodson ,
428 U. S., at 305 (plurality opinion). That “qualitative
difference” creates “a corresponding difference in the need for
reliability in the determination that death is the appropriate
punishment in a specific case.” Ibid. There is increasing
evidence, however, that the death penalty as now applied lacks that
requisite reliability. Cf. Kansas v. Marsh , 548
U. S. 163 –211 (2006) (Souter, J., dis-senting) (DNA
exonerations constitute “a new body offact” when considering the
constitutionality of capital punishment).

															For one thing, despite the difficulty of
investigating the circumstances surrounding an execution for a
crime that took place long ago, researchers have found convincing
evidence that, in the past three decades, innocent people have been
executed. See, e.g., Liebman, Fatal Injustice; Carlos
DeLuna’s Execution Shows That a Faster, Cheaper Death Penalty is a
Dangerous Idea, L. A. Times, June 1, 2012, p. A19 (describing
results of a 4-year investigation, later published as The Wrong
Carlos: Anatomy of a Wrongful Execution (2014), that led its
authors to conclude that Carlos DeLuna, sentenced to death and
executed in 1989, six years after his arrest in Texas for stabbinga
single mother to death in a convenience store, was innocent);
Grann, Trial By Fire: Did Texas Execute An Innocent Man? The New
Yorker, Sept. 7, 2009, p. 42 (describing evidence that Cameron
Todd Willingham was convicted, and ultimately executed in 2004, for
the apparently motiveless murder of his three children as the
result of invalid scientific analysis of the scene of the house
fire that killed his children). See also, e.g., Press
Release: Gov. Ritter Grants Posthumous Pardon in Case Dating Back
to 1930s, Jan. 7, 2011, p. 1 (Colorado Governor granted full and
unconditional posthumous pardon to Joe Arridy, a man with an IQ of
46 who was executed in 1936, because, according to the Governor,
“an overwhelming body of evidence indicates the 23-year-old Arridy
was innocent, including false and coerced confessions, the
likelihood that Arridy was not in Pueblo at the time of the
killing, and an admission of guilt by someone else”); R. Warden,
Wilkie Collins’s The Dead Alive: The Novel, the Case, and Wrongful
Convictions 157–158 (2005) (in 1987, Nebraska Governor Bob Kerrey
pardoned William Jackson Marion, who had been executed a century
earlier for the murder of John Cameron, a man who later turned up
alive; the alleged victim, Cameron, had gone to Mexico to avoid a
shotgun wedding).

															For another, the evidence that the death penalty
has been wrongly imposed (whether or not it was carried
out), is striking. As of 2002, this Court used the word
“disturbing” to describe the number of instances in which
individuals had been sentenced to death but later exonerated.
Atthat time, there was evidence of approximately 60exonerations in
capital cases. Atkins , 536 U. S., at320, n. 25;
National Registry of Exonerations, online at
http://www.law.umich.edu/special/exoneration/Pages/about.aspx (all
Internet materials as visited June 25, 2015, and available in Clerk
of Court’s case file). (I use “exoneration” to refer to relief from all legal consequences of a capital conviction through a
decision by a prosecutor, a Governor or a court, after new evidence
of the defendant’s innocence was discovered.) Since 2002, the
number of exonerations in capital cases has risen to 115. Ibid. ; National Registry of Exonerations, Exonerations in
the United States, 1989–2012, pp. 6–7 (2012) (Exonerations
2012 Report) (defining exoneration); accord, Death Penalty
Information Center (DPIC), Innocence: List of Those Freed from
Death Row, online at
http://www.deathpenaltyinfo.org/innocence-and-death-penalty (DPIC
Innocence List) (calculating, under a slightly different definition
of exoneration, the number of exonerations since 1973 as 154). Last
year, in 2014, six death row inmates were exonerated based on
actual innocence. All had been imprisoned for more than 30 years
(and one for almost 40 years) at the time of their exonerations.
National Registry of Exonerations, Exonerations in 2014, p. 2
(2015).

															The stories of three of the men exonerated
within the last year are illustrative. DNA evidence showed that
Henry Lee McCollum did not commit the rape and murder for which he
had been sentenced to death. Katz & Eckholm, DNA Evidence
Clears Two Men in 1983 Murder, N. Y. Times, Sept. 3, 2014, p.
A1. Last Term, this Court ordered that Anthony Ray Hinton, who had
been convicted of murder, receive further hearings in state court;
he was exonerated earlier this year because the forensic evidence
used against him was flawed. Hinton v. Alabama , 571
U. S. ___ (2014) ( per curiam ); Blinder, Alabama Man on
Death Row for Three Decades Is Freed as State’s Case Erodes,
N. Y. Times, Apr. 4, 2014, p. A11. And when Glenn Ford, also
convicted of murder, was exonerated, the prosecutor admitted that
even “[a]t the time this case was tried there was evidence that
would have cleared Glenn Ford.” Stroud, Lead Prosecutor Apologizes
for Role in Sending Man to Death Row, Shreveport Times, Mar. 27,
2015. All three of these men spent 30 years on death row before
being exonerated. I return to these examples infra .

															Furthermore, exonerations occur far more
frequently where capital convictions, rather than ordinary criminal
convictions, are at issue. Researchers have calculated that courts
(or State Governors) are 130 times more likely to exonerate a
defendant where a death sentence is at issue. They are nine times
more likely to exonerate where a capital murder, rather than a
noncapital murder, is at issue. Exonerations 2012 Report 15–16, and
nn. 24–26.

															Why is that so? To some degree, it must be
because the law that governs capital cases is more complex. To some
degree, it must reflect the fact that courts scrutinize capital
cases more closely. But, to some degree, it likely also reflects a greater likelihood of an initial wrongful conviction . How
could that be so? In the view of researchers who have conducted
these studies, it could be so because the crimes at issue in
capital cases are typically horrendous murders, and thus
accompanied by intense community pressure on police, prosecutors,
and jurors to secure a conviction. This pressure creates a greater
likelihood of convicting the wrong person. See Gross, Jacoby,
Matheson, Montgomery, & Patil, Exonerations in the United
States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531–533
(2005); Gross & O’Brien, Frequency and Predictors of False
Conviction: Why We Know So Little, and New Data on Capital Cases, 5
J. Empirical L. Studies 927, 956–957 (2008) (noting that, in
comparing those who were exonerated from death row to other capital
defendants who were not so exonerated, the initial police
investigations tended to be shorter for those exonerated); see also
B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go
Wrong (2011) (discussing other common causes of wrongful
convictions generally including false confessions, mistaken
eyewitness testimony, untruthful jailhouse informants, and
ineffective defense counsel).

															In the case of Cameron Todd Willingham, for
example, who (as noted earlier) was executed despite likely
innocence, the State Bar of Texas recently filed formal misconduct
charges against the lead prosecutor for his actions—actions that
may have contributed to Willingham’s conviction. Possley,
Prosecutor Accused of Misconduct in Death Penalty Case, Washington
Post, Mar. 19, 2015, p. A3. And in Glenn Ford’s case, the
prosecutor admitted that he was partly responsible for Ford’s
wrongful conviction, issuing a public apology to Ford and
explaining that, at the time of Ford’s conviction, he was “not as
interested in justice as [he] was in winning.” Stroud, supra .

															Other factors may also play a role. One is the
practice of death-qualification; no one can serve on a capital jury
who is not willing to impose the death penalty. See Rozelle, The
Principled Executioner: Capital Juries’ Bias and the Benefits of
True Bifurcation, 38 Ariz. S. L. J. 769, 772–793, 807 (2006)
(summarizing research and concluding that “[f]or over fifty years,
empirical investigation has demonstrated that death qualification
skews juries toward guilt and death”); Note, Mandatory Voir Dire
Questions in Capital Cases: A Potential Solution to the Biases of
Death Qualification, 10 Roger Williams Univ. L. Rev. 211,
214–223 (2004) (similar).

															Another is the more general problem of flawed
forensic testimony. See Garrett, supra, at 7. The Federal
Bureau of Investigation (FBI), for example, recently found that
flawed microscopic hair analysis was used in 33 of 35 capital cases
under review; 9 of the 33 had already been executed. FBI, National
Press Releases, FBI Testimony on Microscopic Hair Analysis
Contained Errors in at Least 90 Percent of Cases in Ongoing Review,
Apr. 20, 2015. See also Hsu, FBI Admits Errors at Trials: False
Matches on Crime-Scene Hair, Washington Post, Apr. 19, 2015,
p. A1 (in the District of Columbia, which does not have the
death penalty, five of seven defendants in cases with flawed hair
analysis testimony were eventually exonerated).

															In light of these and other factors, researchers
estimate that about 4% of those sentenced to death are actually
innocent. See Gross, O’Brien, Hu, & Kennedy, Rate of False
Conviction of Criminal Defendants Who Are Sentenced to Death, 111
Proceeding of the National Academy of Sciences 7230 (2014)
(full-scale study of all death sentences from 1973 through 2004
estimating that 4.1% of those sentenced to death are actually
innocent); Risinger, Innocents Convicted: An Empirically Justified
Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761
(2007) (examination of DNA exonerations in death penalty cases for
murder-rapes between 1982 and 1989 suggesting an analogous rate of
between 3.3% and 5%).

															Finally, if we expand our definition of
“exoneration” (which we limited to errors suggesting the defendant
was actually innocent) and thereby also categorize as “erroneous”
instances in which courts failed to follow legally required
procedures, the numbers soar. Between 1973 and 1995, courts
identified prejudicial errors in 68% of the capital cases before
them. Gelman, Liebman, West, & Kiss, A Broken System: The
Persistent Patterns of Reversals of Death Sentences in the United
States, 1 J. Empirical L. Studies 209, 217 (2004). State courts on
direct and postconviction review overturned 47% of the sentences
they reviewed. Id., at 232. Federal courts, reviewing
capital cases in habeas corpus proceedings, found error in 40% of
those cases. Ibid. This research and these figures are likely
controversial. Full briefing would allow us to scrutinize them with
more care. But, at a minimum, they suggest a serious problem of
reliability. They suggest that there are too many instances in
which courts sentence defendants to death without complying with
the necessary procedures; and they suggest that, in a significant
number of cases, the death sentence is imposed on a person who did
not commit the crime. See Earley, A Pink Cadillac, An IQ of 63, and
A Fourteen-Year-Old from South Carolina: Why I Can No Longer
Support the Death Penalty, 49 U. Rich. L. Rev. 811, 813 (2015)
(“I have come to the conclusion that the death penalty is based on
a false utopian premise. That false premise is that we have had, do
have, will have 100% accuracy in death penalty convictions and
executions”); Earley, I Oversaw 36 Executions. Even Death Penalty
Supporters Can Push for Change, Guardian, May 12, 2014 (Earley
presided over 36 executions as Virginia Attorney General from
1998–2001); but see ante , at 2–3 (Scalia, J., concurring)
(apparently finding no special constitutional problem arising from
the fact that the execution of an innocent person is irreversible).
Unlike 40 years ago, we now have plausible evidence of
unreliability that (perhaps due to DNA evidence) is stronger than
the evidence we had before. In sum, there is significantly more
research-based evidence today indicating that courts sentence to
death individuals who may well be actually innocent or whose
convictions (in the law’s view) do not warrant the death penalty’s
application.

															II “Cruel”—Arbitrariness The arbitrary imposition of punishment is the
antithesis of the rule of law. For that reason, Justice Potter
Stewart (who supplied critical votes for the holdings in Furman v. Georgia , 408 U. S. 238 (1972) ( per
curiam ), and Gregg ) found the death penalty
unconstitutional as administered in 1972:

															“These death sentences are cruel and
unusual in the same way that being struck by lightning is cruel and
unusual. For, of all the people convicted of [death-eligible
crimes], many just as reprehensible as these, the[se] petitioners
are among a capriciously selected random handful upon which the
sentence of death has in fact been imposed.” Furman , 408
U. S., at 309–310 (concurring opinion).

															See also id. , at 310 (“[T]he Eighth and
Fourteenth Amendments cannot tolerate the infliction of a sentence
of death under legal systems that permit this unique penalty to be
so wantonly and so freakishly imposed”); id. , at 313 (White,
J., concurring) (“[T]he death penalty is exacted with great
infrequency even for the most atrocious crimes and . . .
there is no meaningful basis for distinguishing the few cases in
which it is imposed from the many cases in which it is not”).

															When the death penalty was reinstated in 1976,
this Court acknowledged that the death penalty is (and would be)
unconstitutional if “inflicted in an arbitrary and capricious
manner.” Gregg , 428 U. S., at 188 (joint opinion of
Stewart, Powell, and Stevens, JJ.); see also id., at 189
(“[W]here discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life should be taken
or spared, that discretion must be suitably directed and limited so
as to minimize the risk of wholly arbitrary and capricious
action”); Godfrey v. Georgia , 446 U. S. 420, 428
(1980) (plurality opinion) (similar).

															The Court has consequently sought to make the
application of the death penalty less arbitrary by restricting its
use to those whom Justice Souter called “ ‘the worst of the
worst.’ ” Kansas v. Marsh , 548 U. S., at
206 (dissenting opinion); see also Roper v. Simmons ,
543 U. S. 551, 568 (2005) (“Capital punishment must be limited
to those offenders who commit a narrow category of the most serious
crimes and whose extreme culpability makes them the most deserving
of execution” (internal quotation marks omitted)); Kennedy v. Louisiana , 554 U. S. 407, 420 (2008) (citing Roper , supra, at 568).

															Despite the Gregg Court’s hope for fair
administration of the death penalty, 40 years of further experience
make it increasingly clear that the death penalty is imposed
arbitrarily, i.e. , without the “reasonable consistency”
legally necessary to reconcile its use with the Constitution’s
commands. Eddings v. Oklahoma , 455 U. S. 104,
112 (1982) .

															Thorough studies of death penalty sentences
support this conclusion. A recent study, for example, examined all
death penalty sentences imposed between 1973 and 2007 in
Connecticut, a State that abolished the death penalty in 2012.
Donohue, An Empirical Evaluation of the Connecticut Death Penalty
System Since 1973: Are There Unlawful Racial, Gender, and
Geographic Disparities? 11 J. Empirical Legal Studies 637 (2014).
The study reviewed treatment of all homicide defendants. It found
205 instances in which Connecticut law made the defendant eligible
for a death sentence. Id., at 641–643. Courts imposed a
death sentence in 12 of these 205 cases, of which 9 were sustained
on appeal. Id., at 641. The study then measured the
“egregiousness” of the murderer’s conduct in those 9 cases,
developing a system of metrics designed to do so. Id., at
643–645. It then compared the egregiousness of the conduct of the 9
defendants sentenced to death with the egregiousness of the conduct
of defendants in the remaining 196 cases (those in which the
defendant, though found guilty of a death-eligible offense, was
ultimately not sentenced to death). Application of the studies’
metrics made clear that only 1 of those 9 defendants was indeed the
“worst of the worst” (or was, at least, within the 15% considered
most “egregious”). The remaining eight were not. Their behavior was
no worse than the behavior of at least 33 and as many as 170 other defendants (out of a total pool of 205) who had not been
sentenced to death. Id. , at 678–679.

															Such studies indicate that the factors that most
clearly ought to affect application of the death penalty—namely,
comparative egregiousness of the crime—often do not. Other studies
show that circumstances that ought not to affect application
of the death penalty, such as race, gender, or geography, often do .

															Numerous studies, for example, have concluded
that individuals accused of murdering white victims, as opposed to
black or other minority victims, are more likely to receive the
death penalty. See GAO, Report to the Senate and House Committees
on the Judiciary: Death Penalty Sentencing 5 (GAO/GGD–90–57, 1990)
(82% of the 28 studies conducted between 1972 and 1990 found that
race of victim influences capital murder charge or death sentence,
a “finding . . . remarkably consistent across data sets,
states, data collection methods, and analytic techniques”); Shatz
& Dalton, Challenging the Death Penalty with Statistics: Furman , McCleskey , and a Single County Case Study, 34
Cardozo L. Rev. 1227, 1245–1251 (2013) (same conclusion drawn
from 20 plus studies conducted between 1990 and 2013).

															Fewer, but still many, studies have found that
the gender of the defendant or the gender of the victim makes a
not-otherwise-warranted difference. Id., at 1251–1253
(citing many studies).

															Geography also plays an important role in
determining who is sentenced to death. See id., at
1253–1256. And that is not simply because some States permit the
death penalty while others do not. Rather within a death
pen-alty State, the imposition of the death penalty heavily
de-pends on the county in which a defendant is tried. Smith, The
Geography of the Death Penalty and its Ramifications, 92 B. U.
L. Rev. 227, 231–232 (2012) (hereinafter Smith); see also
Donohue, supra, at 673 (“[T]he single most important
influence from 1973–2007 explaining whether a death-eligible
defendant [in Connecticut] would be sentenced to death was whether
the crime occurred in Waterbury [County]”). Between 2004 and 2009,
for example, just 29 counties (fewer than 1% of counties in the
country) accounted for approximately half of all death sentences
imposed nationwide. Smith 233. And in 2012, just 59 counties (fewer
than 2% of counties in the country) accounted for all death
sentences imposed nationwide. DPIC, The 2% Death Penalty: How A
Minority of Counties Produce Most Death Cases At Enormous Costs to
All 9 (Oct. 2013).

															What accounts for this county-by-county
disparity? Some studies indicate that the disparity reflects the
decisionmaking authority, the legal discretion, and ultimately the
power of the local prosecutor. See, e.g., Goelzhauser,
Prosecutorial Discretion Under Resource Constraints: Budget
Allocations and Local Death-Charging Decisions, 96 Judicature 161,
162–163 (2013); Barnes, Sloss, & Thaman, Place Matters (Most):
An Empirical Study of Prosecutorial Decision-Making in
Death-Eligible Cases, 51 Ariz. L. Rev. 305 (2009) (analyzing
Missouri); Donohue, An Empirical Evaluation of the Connecticut
Death Pen-alty System, at 681 (Connecticut); Marceau, Kamin, &
Foglia, Death Eligibility in Colorado: Many Are Called, Few Are
Chosen, 84 U. Colo. L. Rev. 1069 (2013) (Colo-rado); Shatz
& Dalton, supra, at 1260–1261 (Alameda County).

															Others suggest that the availability of
resources for defense counsel (or the lack thereof) helps explain
geographical differences. See, e.g., Smith 258–265 (counties
with higher death-sentencing rates tend to have weaker public
defense programs); Liebman & Clarke, Minority Practice,
Majority’s Burden: The Death Penalty Today, 9 Ohio S. J. Crim. L.
255, 274 (2011) (hereinafter Liebman & Clarke) (similar); see
generally Bright, Counsel for the Poor: The Death Sentence Not for
the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835
(1994).

															Still others indicate that the racial
composition of and distribution within a county plays an important
role. See, e.g. , Levinson, Smith, & Young, Devaluing
Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible
Citizens in Six Death Penalty States, 89 N. Y. U.
L. Rev. 513, 533–536 (2014) (summarizing research on this
point); see also Shatz & Dalton, supra, at 1275
(describing research finding that death-sentencing rates were
lowest in counties with the highest nonwhite population); cf. Cohen
& Smith, The Racial Geography of the Federal Death Penalty, 85
Wash. L. Rev. 425 (2010) (arguing that the federal death
penalty is sought disproportionately where the federal district,
from which the jury will be drawn, has a dramatic racial difference
from the county in which the federal crime occurred).

															Finally, some studies suggest that political
pressures, including pressures on judges who must stand for
election, can make a difference. See Woodward v. Alabama , 571 U. S. ___, ___ (2013) (Sotomayor, J.,
dissenting from denial of certiorari) (slip op., at 7) (noting that
empirical evidence suggests that, when Alabama judges reverse jury
recommendations, these “judges, who are elected in partisan
proceedings, appear to have succumbed to electoral pressures”); Harris v. Alabama , 513 U. S. 504, 519 (1995)
(Stevens, J., dissenting) (similar); Gelman, 1 J. Empirical L.
Studies, at 247 (elected state judges are less likely to reverse
flawed verdicts in capital cases in small towns than in larger
communities).

															Thus, whether one looks at research indicating
that irrelevant or improper factors—such as race, gender, local
geography, and resources— do significantly determine who
receives the death penalty, or whether one looks at research
indicating that proper factors—such as “egregiousness”—do not determine who receives the death penalty, the legal
conclusion must be the same: The research strongly suggests that
the death penalty is imposedarbitrarily.

															Justice Thomas catalogues the tragic details of
various capital cases, ante , at 6–10 (concurring opinion),
but this misses my point. Every murder is tragic, but unless we
return to the mandatory death penalty struck down in Woodson , 428 U. S., at 304–305, the constitutionality
of capital punishment rests on its limited application to the worst
of the worst, supra, at 9–10. And this extensive body of
evidence suggests that it is not so limited.

															Four decades ago, the Court believed it possible
to interpret the Eighth Amendment in ways that would significantly
limit the arbitrary application of the death sentence. See Gregg , 428 U. S., at 195 (joint opinion of Stewart,
Powell, and Stevens, JJ.) (“[T]he concerns expressed in Furman that the penalty of death not be imposed in an
arbitrary or capricious manner can be met”). But that no longer
seems likely.

															The Constitution does not prohibit the use of
prosecutorial discretion. Id., at 199, and n. 50 (joint
opinion of Stewart, Powell, and Stevens, JJ.); McCleskey v. Kemp , 481 U. S. 279 –308, and n. 28, 311–312 (1987). It
has not proved possible to increase capital defense funding
significantly. Smith, The Supreme Court and the Politics of Death,
94 Va. L. Rev. 283, 355 (2008) (“Capital defenders are
notoriously underfunded, particularly in states . . .
that lead the nation in executions”); American Bar Assn. (ABA)
Guidelines for the Appointment and Performance of Defense Counsel
in Death Penalty Cases, Guideline 9.1, Commentary (rev. ed. Feb.
2003), in 31 Hofstra L. Rev. 913, 985 (2003) (“[C]ompensation
of attorneys for death penalty representation remains notoriously
inadequate”). And courts cannot easily inquire into judicial
motivation. See, e.g., Harris , supra .

															Moreover, racial and gender biases may,
unfortunately, reflect deeply rooted community biases (conscious or
unconscious), which, despite their legal irrelevance, may affect a
jury’s evaluation of mitigating evidence, see Callins v. Collins , 510 U. S. 1141, 1153 (1994) (Blackmun, J.,
dissenting from denial of certiorari) (“Perhaps it should not be
surprising that the biases and prejudices that infect society
generally would influence the determination of who is sentenced to
death”). Nevertheless, it remains the jury’s task to make the
individualized assessment of whether the defendant’s mitigation
evidence entitles him to mercy. See, e.g., Penry v. Lynaugh , 492 U. S. 302, 319 (1989) ; Lockett v. Ohio , 438 U. S. 586 –605 (1978) (opinion of Burger,
C. J.); Woodson , 428 U. S., at 304–305 (plurality
opinion).

															Finally, since this Court held that comparative
proportionality review is not constitutionally required, Pulley v. Harris , 465 U. S. 37 (1984) , it seems
unlikely that appeals can prevent the arbitrariness I have
described. See Kaufman-Osborn, Capital Punishment, Proportionality
Review, and Claims of Fairness (with Lessons from Washington
State), 79 Wash. L. Rev. 775, 791–792 (2004) (after Pulley , many States repealed their statutes requiring
comparative proportionality review, and most state high courts
“reduced proportionality review to a perfunctory exercise”
(internal quotation marks omitted)).

															The studies bear out my own view, reached after
considering thousands of death penalty cases and last-minute
petitions over the course of more than 20 years. I see
discrepancies for which I can find no rational explanations. Cf. Godfrey , 446 U. S., at 433 (plurality opinion) (“There
is no principled way to distinguish this case, in which the death
penalty was imposed, from the many cases in which it was not”). Why
does one defendant who committed a single-victim murder receive the
death pen-alty (due to aggravators of a prior felony conviction and
an after-the-fact robbery), while another defendant does not,
despite having kidnapped, raped, and murdered a young mother while
leaving her infant baby to die at the scene of the crime. Compare State v. Badgett , 361 N. C. 234, 644 S. E.
2d 206 (2007), and Pet. for Cert. in Badgett v. North
Carolina , O. T. 2006, No. 07–6156, with Charbonneau, Andre
Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26,
2004, online at http://www.wral.com/news/local/story/109648. Why
does one defendant who committed a single-victim murder receive the
death pen-alty (due to aggravators of a prior felony conviction and
acting recklessly with a gun), while another defendant does not,
despite having committed a “triple murder” by killing a young man
and his pregnant wife? Compare Commonwealth v. Boxley , 596 Pa. 620, 948 A. 2d 742 (2008), and Pet. for
Cert., O. T. 2008, No. 08–6172, with Shea, Judge Gives
Consecutive Life Sentences for Triple Murder, Philadelphia
Inquirer, June 29, 2004, p. B5. For that matter, why does one
defendant who participated in a single-victim murder-for-hire
scheme (plus an after-the-fact robbery) receive the death penalty,
while another defendant does not, despite having stabbed his wife
60 times and killed his 6-year-old daughter and 3-year-old son
while they slept? See Donohue, Capital Punishment in Connecticut,
1973–2007: A Comprehensive Evaluation from 4686 Murders to One
Execution, pp. 128–134 (2013), online at
http://works.bepress.com/john_donohue/87. In each instance, the
sentences compared were imposed in the same State at about the same
time.

															The question raised by these examples (and the
many more I could give but do not), as well as by the research to
which I have referred, is the same question Justice Stewart,
Justice Powell, and others raised over the course of several
decades: The imposition and implementation of the death penalty
seems capricious, random, indeed, arbitrary. From a defendant’s
perspective, to receive that sentence, and certainly to find it
implemented, is the equivalent of being struck by lightning. How
then can we reconcile the death penalty with the demands of a
Constitution that first and foremost insists upon a rule of
law?

															III “Cruel”—Excessive Delays The problems of reliability and unfairness
almost inevitably lead to a third independent constitutional
problem: excessively long periods of time that individuals
typically spend on death row, alive but under sentence of death.
That is to say, delay is in part a problem that the Constitution’s
own demands create. Given the special need for reliability and
fairness in death penalty cases, the Eighth Amendment does, and
must, apply to the death penalty “with special force.” Roper , 543 U. S., at 568. Those who face “that most
severe sanction must have a fair opportunity to show that the
Constitution prohibits their execution.” Hall v. Florida , 572 U. S. ___, ___ (2014) (slip op., at 22).
At the same time, the Constitution insists that “every safeguard”
be “observed” when “a defendant’s life is at stake.” Gregg ,
428 U. S., at 187 (joint opinion of Stewart, Powell, and
Stevens, JJ.); Furman , 408 U. S., at 306 (Stewart, J.,
concurring) (death “differs from all other forms of criminal
punishment, not in degree but in kind”); Woodson , supra , at 305 (plurality opinion) (“Death, in its finality,
differs more from life imprisonment than a 100-year prison term
differs from one of only a year or two”).

															These procedural necessities take time to
implement. And, unless we abandon the procedural requirements that
assure fairness and reliability, we are forced to confront the
problem of increasingly lengthy delays in capital cases.
Ultimately, though these legal causes may help to explain, they do
not mitigate the harms caused by delay itself.

															A

															Consider first the statistics. In 2014, 35
individualswere executed. Those executions occurred, on
average,nearly 18 years after a court initially pronounced
itssentence of death. DPIC, Execution List 2014, onlineat
http: / / www.deathpenaltyinfo.org / execution - list-2014
(showing an average delay of 17 years, 7 months). In some death
penalty States, the average delay is longer. Inan oral argument
last year, for example, the State admitted that the last 10
prisoners executed in Florida had spent an average of nearly 25
years on death row before execution. Tr. of Oral Arg. in Hall v. Florida, O. T. 2013, No. 12–10882, p. 46.

															The length of the average delay has increased
dramatically over the years. In 1960, the average delay between
sentencing and execution was two years. See Aarons, Can Inordinate
Delay Between a Death Sentence and Execution Constitute Cruel and
Unusual Punishment? 29 Seton Hall L. Rev. 147, 181 (1998). Ten
years ago (in 2004) the average delay was about 11 years. See Dept.
of Justice, Bureau of Justice Statistics (BJS), T. Snell, Capital
Punishment, 2013—Statistical Tables 14 (Table 10) (rev. Dec. 2014)
(hereinafter BJS 2013 Stats). By last year the average had risen to
about 18 years. DPIC, Execution List 2014, supra . Nearly
half of the 3,000 inmates now on death row have been there for more
than 15 years. And, at present execution rates, it would take more
than 75 years to carry out those 3,000 death sentences; thus, the
average person on death row would spend an additional 37.5 years
there before being executed. BJS 2013 Stats, at 14, 18 (Tables 11
and 15).

															I cannot find any reasons to believe the trend
will soon be reversed.

															B

															These lengthy delays create two special
constitutional difficulties. See Johnson v. Bredesen ,
558 U. S. 1067, 1069 (2009) (Stevens, J., statement respecting
denial of certiorari). First, a lengthy delay in and of itself is
especially cruel because it “subjects death row inmates to decades
of especially severe, dehumanizing conditions of confinement.” Ibid .; Gomez v. Fierro , 519 U. S. 918
(1996) (Stevens, J., dissenting) (excessive delays from sentencing
to execution can themselves “constitute cruel and unusual
punishment prohibited by the Eighth Amendment”); see also Lackey v. Texas , 514 U. S. 1045 (1995)
(memorandum of Stevens, J., respecting denial of certiorari); Knight v. Florida , 528 U. S. 990, 993 (1999) (Breyer,
J., dissenting from denial of certiorari) . Second, lengthy
delay undermines the death penalty’s penological rationale. Johnson , supra, at 1069; Thompson v. McNeil , 556 U. S. 1114 ,1115 (2009) (statement of
Stevens, J., respecting denial of certiorari).

															1

															Turning to the first constitutional
difficulty, nearly all death penalty States keep death row inmates
in isolation for 22 or more hours per day. American Civil Liberties
Union (ACLU), A Death Before Dying: Solitary Confinement on Death
Row 5 (July 2013) (ACLU Report). This occurs even though the ABA
has suggested that death row inmates be housed in conditions
similar to the general population, and the United Nations Special
Rapporteur on Torture has called for a global ban on solitary
confinement longer than 15 days. See id. , at 2, 4; ABA
Standards for Criminal Justice: Treatment of Prisoners 6 (3d ed.
2011). And it is well documented that such prolonged solitary
confinement produces numerous deleterious harms. See, e.g., Haney, Mental Health Issues in Long-Term Solitary and “Supermax”
Confinement, 49 Crime & Delinquency 124, 130 (2003)
(cataloguing studies finding that solitary confinement can cause
prisoners to experience “anxiety, panic, rage, loss of control,
paranoia, hallucinations, and self-mutilations,” among many other
symptoms); Grassian, Psychiatric Effects of Solitary Confinement,
22 WashU. J. L. & Policy 325, 331 (2006) (“[E]ven a few
days of solitary confinement will predictably shift the [brain’s]
electroencephalogram (EEG) pattern toward an abnormal pattern
characteristic of stupor and delirium”); accord, In re
Medley , 134 U. S. 160 –168 (1890); see also Davis v. Ayala , ante, at 1–4 (Kennedy, J., concurring).

															The dehumanizing effect of solitary confinement
is aggravated by uncertainty as to whether a death sentence will in
fact be carried out. In 1890, this Court recognized that, “when a
prisoner sentenced by a court to death is confined in the
penitentiary awaiting the execution of the sentence, one of the
most horrible feelings to which he can be subjected during that
time is the uncertainty during the whole of it.” Medley , supra, at 172. The Court was there describing a delay of
a mere four weeks. In the past century and a quarter, little
has changed in this respect—except for duration. Today we must
describe delays measured, not in weeks, but in decades. Supra, at 18–19.

															Moreover, we must consider death warrants that
have been issued and revoked, not once, but repeatedly. See, e.g., Pet. for Cert. in Suárez Medina v. Texas , O. T. 2001, No. 02–5752, pp. 35–36 (filed Aug. 13,
2002) (“On fourteen separate occasions since Mr. Suárez Medina’s
death sentence was imposed, he has been informed of the time, date,
and manner of his death. At least eleven times, hehas been asked to
describe the disposal of his bodilyremains”); Lithwick, Cruel but
not Unusual , Slate,Apr. 1, 2011, online at
http://www.slate.com/articles/news_and_politics/jurisprudence/2011/04/cruel_but_not_unusual.html
(John Thompson had seven death warrants signed before he was
exonerated); see also, e.g., WFMZ-TV 69 News, Michael John
Parrish’s Execution Warrant Signed by Governor Corbett (Aug. 18,
2014), online at
http: / / www.wfmz.com /news/Regional-Poconos-Coal / Local /michael-john-parrishs-execution -warrant -signed-by -governor -corbett/27595356
(former Pennsylvania Governor signed 36 death warrants in his first
3.5 years in office even though Pennsylvania has not carried out an
execution since 1999).

															Several inmates have come within hours or days
of execution before later being exonerated. Willie Manning was four hours from his scheduled execution before the
Mississippi Supreme Court stayed the execution. See Robertson, With
Hours to Go, Execution is Postponed, N. Y. Times, Apr. 8,
2015, p. A17. Two years later, Manning was exonerated after the
evidence against him, including flawed testimony from an FBI hair
examiner, was severely undermined. Nave, Why Does the State Still
Want to Kill Willie Jerome Manning? Jackson Free Press, Apr. 29,
2015. Nor is Manning an outlier case. See, e.g., Martin,
Randall Adams, 61, Dies; Freed With Help of Film, N. Y. Times,
June 26, 2011, p. 24 (Randall Adams: stayed by this Court
three days before execution; later exonerated); N. Davies, White
Lies 231, 292, 298, 399 (1991) (Clarence Lee Brandley: execution
stayed twice, once 6 days and once 10 days before; later
exonerated); M. Edds, An Expendable Man 93 (2003) (Earl Washington,
Jr.: stayed 9 days before execution; later exonerated).

															Furthermore, given the negative effects of
confinement and uncertainty, it is not surprising that many inmates
volunteer to be executed, abandoning further appeals. See, e.g., ACLU Report 8; Rountree, Volunteers for Execution:
Directions for Further Research into Grief, Culpability, and Legal
Structures, 82 UMKC L. Rev. 295 (2014) (11% of those executed
have dropped appeals and volunteered); ACLU Report 3 (account of
“ ‘guys who dropped their appeals because of the intolerable
conditions’ ”). Indeed, one death row inmate, who was later
exonerated, still said he would have preferred to die rather than
to spend years on death row pursuing his exoneration. Strafer,
Volunteering for Execution: Competency, Voluntariness and the
Propriety of Third Party Intervention, 74 J. Crim. L. & C. 860,
869 (1983). Nor is it surprising that many inmates consider, or
commit, suicide. Id. , at 872, n. 44 (35% of those confined
on death row in Florida attempted suicide).

															Others have written at great length about the
constitutional problems that delays create, and, rather than repeat
their facts, arguments, and conclusions, I simply refer to some of
their writings. See, e.g., Johnson , 558 U. S., at 1069
(statement of Stevens, J.) (delay “subjects death row inmates to
decades of especially severe, dehumanizing conditions of
confinement”); Furman , 408 U. S., at 288 (Brennan, J.,
concurring) (“long wait between the imposition of sentence and the
actual infliction of death” is “inevitable” and often “exacts a
frightful toll”); Solesbee v. Balkcom , 339 U. S.
9, 14 (1950) (Frankfurter, J., dissenting) (“In the history of
murder, the onset of insanity while awaiting execution of a death
sentence is not a rare phenomenon”); People v. Anderson, 6 Cal. 3d 628, 649 , 493 P. 2d 880, 894
(1972) (collecting sources) (“[C]ruelty of capital punishment lies
not only in the execution itself and the pain incident thereto, but
also in the dehumanizing effects of the lengthy imprisonment prior
to execution during which the judicial and administrative
procedures essential to due process of law are carried out”
(footnote omitted)); District Attorney for Suffolk Dist. v. Watson , 381 Mass. 648, 673, 411 N. E. 2d 1274, 1287 (1980)
(Braucher, J., concurring) (death penalty unconstitutional under
State Constitution in part because “[it] will be carried out only
after agonizing months and years of uncertainty”); see also Riley v. Attorney General of Jamaica , [1983] 1
A. C. 719, 734–735 (P. C. 1982) (Lord Scarman, joined by Lord
Brightman, dissenting) (“execution after inordinate delay” would
infringe prohibition against “cruel and unusual punishments” in §10
of the “Bill of Rights of 1689,” the precursor to our Eighth
Amendment); Pratt v. Attorney Gen. of Jamaica , [1994]
2 A. C. 1, 4 (P. C. 1993); id. , at 32–33 (collecting
cases finding inordinate delays unconstitutional or the
equivalent); State v . Makwanyane 1995 (3) SA391 (CC)
(S. Afr.); Catholic Commission for Justice & Peace in
Zimbabwe v. Attorney-General , [1993] 1 Zim. L. R.
242, 282 (inordinate delays unconstitutional); Soer-ing v. United Kingdom , 11 Eur. Ct. H. R. (ser. A), p. 439 (1989)
(extradition of murder suspect to United States would violate the
European Convention on Human Rights in light of risk of delay
before execution); United States v. Burns, [2001] 1
S. C. R. 283, 353, ¶123 (similar).

															2

															The second constitutional difficulty resulting
from lengthy delays is that those delays undermine the death
penalty’s penological rationale, perhaps irreparably so. The
rationale for capital punishment, as for any punishment,
classically rests upon society’s need to secure deterrence,
incapacitation, retribution, or rehabilitation. Capital punishment
by definition does not rehabilitate. It does, of course,
incapacitate the offender. But the major alternative to capital
punishment—namely, life in prison without possibility of
parole—also incapacitates. See Ring v. Arizona , 536
U. S. 584, 615 (2002) (Breyer, J., concurring in
judgment).

															Thus, as the Court has recognized, the death
penalty’s penological rationale in fact rests almost exclusively
upon a belief in its tendency to deter and upon its ability to
satisfy a community’s interest in retribution. See, e.g.,
Gregg , 428 U. S., at 183 (joint opinion of Stewart,
Powell, and Stevens, JJ.). Many studies have examined the death
penalty’s deterrent effect; some have found such an effect, whereas
others have found a lack of evidence that it deters crime. Compare ante , at 5 (Scalia, J., concurring) (collecting studies
finding deterrent effect), with e.g., Sorensen, Wrinkle,
Brewer, & Marquart, Capital Punishment and Deterrence:
Examining the Effect of Executions on Murder in Texas, 45 Crime
& Delinquency 481 (1999) (no evidence of a deterrent effect);
Bonner & Fessenden, Absence of Executions: A Special Report,
States With No Death Penalty Share Lower Homicide Rates, N. Y.
Times, Sept. 22, 2000, p. A1 (from 1980–2000, homicide rate in
death-penalty States was 48% to 101% higher than in
non-death-penalty States); Radelet & Akers, Deterrence and the
Death Penalty: The Views of the Experts, 87 J. Crim. L. & C. 1,
8 (1996) (over 80% of criminologists believe existing research
fails to support deterrence justification); Donohue & Wolfers,
Uses and Abuses of Empirical Evidence in the Death Penalty Debate,
58 Stan. L. Rev. 791, 794 (2005) (evaluating existing
statistical evidence and concluding that there is “profound
uncertainty” about the existence of a deterrent effect).

															Recently, the National Research Council (whose
members are drawn from the councils of the National Academy of
Sciences, the National Academy of Engineering, and the Institute of
Medicine) reviewed 30 years of empirical evidence and concluded
that it was insufficient to establish a deterrent effect and thus
should “not be used to inform” discussion about the deterrent value
of the death penalty. National Research Council, Deterrence and the
Death Penalty 2 (D. Nagin & J. Pepper eds. 2012); accord, Baze v. Rees , 553 U. S. 35, 79 (2008) (Stevens,
J., concurring in judgment) (“Despite 30 years of empirical
re-search in the area, there remains no reliable statistical
evi-dence that capital punishment in fact deters potential
offenders”).

															I recognize that a “lack of evidence” for a
proposition does not prove the contrary. See Ring , supra , at 615 (one might believe the studies
“inconclusive”). But suppose that we add to these studies the fact
that, today, very few of those sentenced to death are actually
executed, and that even those executions occur, on average, after
nearly two decades on death row. DPIC, Execution List 2014, supra . Then, does it still seem likely that the death
penalty has a significant deterrent effect?

															Consider, for example, what actually happened to
the 183 inmates sentenced to death in 1978. As of 2013 (35 years
later), 38 (or 21% of them) had been executed; 132 (or 72%) had had
their convictions or sentences overturned or commuted; and 7 (or
4%) had died of other (likely natural) causes. Six (or 3%) remained
on death row. BJS 2013 Stats, at 19 (Table 16).

															The example illustrates a general trend. Of the
8,466 inmates under a death sentence at some point between 1973 and
2013, 16% were executed, 42% had their convictions or sentences
overturned or commuted, and 6% died by other causes; the remainder
(35%) are still on death row. Id., at 20 (Table 17); see
also Baumgartner & Dietrich, Most Death Penalty Sentences Are
Overturned: Here’s Why That Matters, Washington Post Blog, Monkey
Cage, Mar. 17, 2015 (similar).

															Thus an offender who is sentenced to death is
two or three times more likely to find his sentence overturned or
commuted than to be executed; and he has a good chance of dying
from natural causes before any execution (or exoneration) can take
place. In a word, executions are rare . And an individual
contemplating a crime but evaluating the potential punishment would
know that, in any event, he faces a potential sentence of life
without parole.

															These facts, when recurring, must have some
offsetting effect on a potential perpetrator’s fear of a death
penalty. And, even if that effect is no more than slight, it makes
it difficult to believe (given the studies of deterrence cited
earlier) that such a rare event significantly deters horrendous
crimes. See Furman , 408 U. S., at 311–312 (White, J.,
concurring) (It cannot “be said with confidence that society’s need
for specific deterrence justifies death for so few when for so many
in like circumstances life imprisonment or shorter prison terms are
judged sufficient”).

															But what about retribution? Retribution is a
valid penological goal. I recognize that surviving relatives of
victims of a horrendous crime, or perhaps the community itself, may
find vindication in an execution. And a community that favors the
death penalty has an understand-able interest in representing their
voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an
Execution 130 (2005) (Illinois Governor George Ryan explained his
decision to commute all death sentences on the ground that it was
“cruel and unusual” for “family members to go through this
. . . legal limbo for [20] years”).

															The relevant question here, however, is whether
a “community’s sense of retribution” can often find vindication in
“a death that comes,” if at all, “only several decades after the
crime was committed.” Valle v. Florida , 564
U. S. ___, ___ (2011) (Breyer, J., dissenting from denial of
stay) (slip op., at 3). By then the community is a different group
of people. The offenders and the victims’ families have grown far
older. Feelings of outrage may have subsided. The offender may have
found himself a changed human being. And sometimes repentance and
even forgiveness can restore meaning to lives once ruined. At the
same time, the community and victims’ families will know that, even
without a further death, the offender will serve decades in prison
under a sentence of life without parole.

															I recognize, of course, that this may not always
be the case, and that sometimes the community believes that an
execution could provide closure. Nevertheless, the delays and low
probability of execution must play some role in any calculation
that leads a community to insist on death as retribution. As I have
already suggested, they may well attenuate the community’s interest
in retribution to the point where it cannot by itself amount to a
significant justification for the death penalty. Id., at ___
(slip op., at 3). In any event, I believe that whatever interest in
retribution might be served by the death penalty as currently
administered, that interest can be served almost as well by a
sentence of life in prison without parole (a sentence that every
State now permits, see ACLU, A Living Death: Life Without Parole
for Nonviolent Offenses 11, and n. 10 (2013)).

															Finally, the fact of lengthy delays undermines
any effort to justify the death penalty in terms of its prevalence
when the Founders wrote the Eighth Amendment. When the Founders
wrote the Constitution, there were no 20- or 30-year delays.
Execution took place soon after sentencing. See P. Mackey, Hanging
in the Balance: The Anti-Capital Punishment Movement in New York
State, 1776–1861, p. 17 (1982); T. Jefferson, A Bill for
Proportioning Crimes and Punishments (1779), reprinted in The
Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John
Marshall 207–209 (C. Cullen & H. Johnson eds. 1977) (describing
petition for commutation based in part on 5-month delay); Pratt v. Attorney Gen. of Jamaica, [1994] 2
A. C., at 17 (same in United Kingdom) (collecting cases). And,
for reasons I shall describe, infra , at 29–33, we cannot
return to the quick executions in the founding era.

															3

															The upshot is that lengthy delays both
aggravate the cruelty of the death penalty and undermine its
jurisprudential rationale. And this Court has said that, if the
death penalty does not fulfill the goals of deterrence or
retribution, “it is nothing more than the purposeless and needless
imposition of pain and suffering and hence an unconstitutional
punishment.” Atkins , 536 U. S., at 319 (quoting Enmund v. Florida , 458 U. S. 782, 798 (1982) ;
internal quotation marks omitted); see also Gregg, 428
U. S., at 183 (joint opinion of Stewart, Powell, and Stevens,
JJ.) (“sanction imposed cannot be so totally without penological
justification that it results in the gratuitous infliction of
suffering”); Furman, supra , at 312 (White, J., concurring)
(a “penalty with such negligible returns to the State would be
patently excessive and cruel and unusual punishment violative of
the Eighth Amendment”); Thompson , 556 U. S., at 1115
(statement of Stevens, J., respecting denial of certiorari)
(similar).

															Indeed, Justice Lewis Powell (who provided a
crucial vote in Gregg ) came to much the same conclusion,
albeit after his retirement from this Court. Justice Powell had
come to the Court convinced that the Federal Constitution did not
outlaw the death penalty but rather left the matter up to
individual States to determine. Furman , supra , at
431–432 (Powell, J., dissenting); see also J. Jeffries, Justice
Lewis F. Powell, Jr., p. 409 (2001) (describing Powell, during his
time on the Court, as a “fervent partisan” of “the
constitutionality of capital punishment”).

															Soon after Justice Powell’s retirement, Chief
Justice Rehnquist appointed him to chair a committee addressing
concerns about delays in capital cases, the Ad Hoc Committee
on Federal Habeas Corpus in Capital Cases (Committee). The
Committee presented a report to Congress, and Justice Powell
testified that “[d]elay robs the penalty of much of its deterrent
value.” Habeas Corpus Reform, Hearings before the Senate Committee
on the Judiciary, 100th Cong., 1st and 2d Sess., 35 (1989 and
1990). Justice Powell, according to his official biographer,
ultimately concluded that capital punishment:

															“ ‘serves no useful purpose.’ The
United States was ‘unique among the industrialized nations of the
West in maintaining the death penalty,’ and it was enforced so
rarely that it could not deter. More important, the haggling and
delay and seemingly endless litigation in every capital case
brought the law itself into disrepute.” Jeffries, supra, at
452.

															In short, the problem of excessive delays led
Justice Powell, at least in part, to conclude that the death
penalty was unconstitutional.

															As I have said, today delays are much worse.
When Chief Justice Rehnquist appointed Justice Powell to the
Committee, the average delay between sentencing and execution was 7
years and 11 months, compared with 17 years and 7 months today.
Compare BJS, L. Greenfeld, Capital Punishment, 1990, p. 11 (Table
12) (Sept. 1991) with supra, at 18–19.

															C

															One might ask, why can Congress or the States
not deal directly with the delay problem? Why can they not take
steps to shorten the time between sentence and execution, and
thereby mitigate the problems just raised? The answer is that
shortening delay is much more difficult than one might think. And
that is in part because efforts to do so risk causing procedural
harms that also undermine the death penalty’s
constitutionality.

															For one thing, delays have helped to make
application of the death penalty more reliable. Recall the case of
Henry Lee McCollum, whom DNA evidence exonerated 30 years after his
conviction. Katz & Eckholm, N. Y. Times, at A1. If
McCollum had been executed earlier, he would not have lived to see
the day when DNA evidence exonerated him and implicated another
man; that man is already serving a life sentence for a rape and
murder that he committed just a few weeks after the murder McCollum
was convicted of. Ibid. In fact, this Court had earlier
denied reviewof McCollum’s claim over the public dissent of only
one Justice. McCollum v. North Carolina , 512
U. S. 1254 (1994) . And yet a full 20 years after the Court
denied review, McCollum was exonerated by DNA evidence. There are a
significant number of similar cases, some of which I have discussed
earlier. See also DPIC Innocence List, supra (Nathson
Fields, 23 years; Paul House, 23 years; Nicholas Yarris, 21 years;
Anthony Graves, 16 years; Damon Thibodeaux, 15 years; Ricky
Jackson, Wiley Bridgeman, and Kwame Ajamu, all exonerated for the
same crime 39 years after their convictions).

															In addition to those who are exonerated on the
ground that they are innocent, there are other individuals whose
sentences or convictions have been overturned for other reasons (as
discussed above, state and federal courts found error in 68% of the
capital cases they reviewed between 1973 and 1995). See Part I, supra . In many of these cases, a court will have found that
the individual did not merit the death penalty in a special
sense—namely, he failed to receive all the procedural protections
that the law requires for the death penalty’s application. By
eliminating some of these protections, one likely could reduce
delay. But which protections should we eliminate? Should we
eliminate the trial-related protections we have established for
capital defendants: that they be able to present to the sentencing
judge or jury all mitigating circumstances, Lockett v. Ohio , 438 U. S. 586 ; that the State provide guidance
adequate to reserve the application of the death penalty to
particularly serious murders, Gregg, 428 U. S. 153 ;
that the State provide adequate counsel and, where warranted,
adequate expert assistance, Powell v. Alabama , 287
U. S. 45 (1932) ; Wiggins v. Smith , 539
U. S. 510 (2003) ; Ake v. Oklahoma , 470
U. S. 68 (1985) ; or that a jury must find the aggravating
factors necessary to impose the death penalty, Ring , 536
U. S. 584 ; see also id., at 614 (Breyer, J.,
concurring in judgment)? Should we no longer ensure that the State
does not execute those who are seriously intellectually disabled, Atkins , 536 U. S. 304 ? Should we eliminate the
requirement that the manner of execution be constitutional, Baze , 553 U. S. 35 , or the requirement that the inmate
be mentally competent at the time of his execution, Ford v. Wainwright , 477 U. S. 399 (1986) ? Or should we get rid
of the criminal protections that all criminal defendants
receive—for instance, that defendants claiming violation of
constitutional guarantees (say “due process of law”) may seek a
writ of habeas corpus in federal courts? See, e.g., O’Neal v. McAninch , 513 U. S. 432 (1995) . My answer to these
questions is “surely not.” But see ante, at 5–7 (Scalia, J.,
concurring).

															One might, of course, argue that courts,
particularly federal courts providing additional layers of review,
apply these and other requirements too strictly, and that causes
delay. But, it is difficult for judges, as it would be difficult
for anyone, not to apply legal requirements punctiliously
when the consequence of failing to do so may well be death,
particularly the death of an innocent person. See, e.g., Zant v. Stephens , 462 U. S. 862, 885 (1983)
(“[A]lthough not every imperfection in the deliberative process is
sufficient, even in a capital case, to set aside a state-court
judgment, the severity of the sentence mandates careful scrutiny in
the review of any colorable claim of error”); Kyles v. Whitley , 514 U. S. 419, 422 (1995) (“[O]ur duty to
search for constitutional error with painstaking care is never more
exacting than it is in a capital case” (internal quotation marks
omitted)); Thompson , 556 U. S., at 1116 (statement of
Stevens, J.) (“Judicial process takes time, but the error rate in
capital cases illustrates its necessity”).

															Moreover, review by courts at every level helps
to ensure reliability; if this Court had not ordered that Anthony
Ray Hinton receive further hearings in state court, see Hinton v. Alabama , 571 U. S. ___, he may well
have been executed rather than exonerated. In my own view, our
legal system’s complexity, our federal system with its separate
state and federal courts, our constitutional guarantees, our
commitment to fair procedure, and, above all, a special need for
reliability and fairness in capital cases, combine to make
significant procedural “reform” unlikely in practice to reduce
delays to an acceptable level.

															And that fact creates a dilemma: A death penalty
system that seeks procedural fairness and reliability brings with
it delays that severely aggravate the cruelty of capital punishment
and significantly undermine the rationale for imposing a sentence
of death in the first place. See Knight , 528 U. S., at
998 (Breyer, J., dissenting from denial of certiorari) (one of the
primary causes of the delay is the States’ “failure to apply
constitutionally sufficient procedures at the time of initial
[conviction or] sentencing”). But a death penalty system that
minimizes delays would undermine the legal system’s efforts to
secure reliability and procedural fairness.

															In this world, or at least in this Nation, we
can have a death penalty that at least arguably serves legitimate
penological purposes or we can have a procedural system that
at least arguably seeks reliability and fairness in the death
penalty’s application. We cannot have both. And that simple fact,
demonstrated convincingly over the past 40 years, strongly supports
the claim that the death penalty violates the Eighth Amendment. A
death penalty system that is unreliable or procedurally unfair
would violate the Eighth Amendment. Woodson , 428 U. S.,
at 305 (plurality opinion); Hall , 572 U. S., at ___
(slip op., at 22); Roper , 543 U. S., at 568. And so
would a system that, if reliable and fair in its application of the
death penalty, would serve no legitimate penological purpose. Furman, 408 U. S., at 312 (White, J., concurring); Gregg,
supra , at 183 (joint opinion of Stewart, Powell, and Stevens,
JJ.); Atkins , supra , at 319.

															IV “Unusual”—Decline in Use of the Death
Penalty The Eighth Amendment forbids punishments that
are cruel and unusual. Last year, in 2014, only seven States
carried out an execution. Perhaps more importantly, in the last two
decades, the imposition and implementation of the death penalty
have increasingly become unusual. I can illustrate the significant
decline in the use of the death penalty in several ways.

															An appropriate starting point concerns the
trajectory of the number of annual death sentences nationwide, from
the 1970’s to present day. In 1977—just after the Supreme Court
made clear that, by modifying their legislation, States could
reinstate the death penalty — 137 people were sentenced to
death. BJS 2013 Stats, at 19 (Table 16). Many States having revised
their death penalty laws to meet Furman’ s requirements, the
number of death sentences then increased. Between 1986 and 1999,
286 persons on average were sentenced to death each year. BJS 2013
Stats, at 14, 19 (Tables 11 and 16). But, approximately 15 years
ago, the numbers began to decline, and they have declined rapidly
ever since. See Appendix A, infra (showing sentences from
1977–2014). In 1999, 279 persons were sentenced to death. BJS 2013
Stats, at 19 (Table 16). Last year, just 73 persons were sentenced
to death. DPIC, The Death Penalty in 2014: Year End Report 1
(2015).

															That trend, a significant decline in the last 15
years, also holds true with respect to the number of annual
executions. See Appendix B, infra (showing executions from
1977–2014). In 1999, 98 people were executed. BJS, Data Collection:
National Prisoner Statistics Program (BJS Prisoner Statistics)
(available in Clerk of Court’s case file). Last year, that number
was only 35. DPIC, The Death Penalty in 2014, supra , at
1.

															Next, one can consider state-level data. Often
when deciding whether a punishment practice is, constitutionally
speaking, “unusual,” this Court has looked to the num-ber of States
engaging in that practice. Atkins , 536 U. S. , at
313–316; Roper , supra , at 564–566. In this respect,
the number of active death penalty States has fallen dramatically.
In 1972, when the Court decided Furman, the death penalty
was lawful in 41 States. Nine States had abolished it. E. Mandery,
A Wild Justice: The Death and Resurrection of Capital Punishment in
America 145 (2013). As of today, 19 States have abolished the death
penalty (along with the District of Columbia), although some did so
prospectively only. See DPIC, States With and Without the Death
Penalty, online at
http://www.deathpenaltyinfo.org/states-and-without-death-penalty.
In 11 other States that maintain the death penalty on the books, no
execution has taken place for more than eight years: Arkansas (last
execution 2005); California (2006); Colorado (1997); Kansas (no
executions since the death penalty was reinstated in 1976); Montana
(2006); Nevada (2006); New Hampshire (no executions since the death
penalty was reinstated in 1976); North Carolina (2006); Oregon
(1997); Pennsylvania (1999); and Wyoming (1992). DPIC, Executions
by State and Year, online at
http://www.deathpenaltyinfo.org/node/5741.

															Accordingly, 30 States have either formally
abolished the death penalty or have not conducted an execution in
more than eight years. Of the 20 States that have conducted at
least one execution in the past eight years, 9 have conducted fewer
than five in that time, making an execution in those States a
fairly rare event. BJS Prisoner Statistics (Delaware, Idaho,
Indiana, Kentucky, Louisiana, South Dakota, Tennessee, Utah,
Washington). That leaves 11 States in which it is fair to say that
capital punishment is not “unusual.” And just three of those States
(Texas, Missouri, and Florida) accounted for 80% of the executions
nationwide (28 of the 35) in 2014. See DPIC, Number of Executions
by State and Region Since 1976, online at
http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976.
Indeed, last year, only seven States conducted an execution. DPIC,
Executions by State and Year, supra ; DPIC, Death Sentences
in the United States From 1977 by State and by Year, online at
http : / / www . deathpenaltyinfo .org / death - sentences - united -states-1977-2008.
In other words, in 43 States, no one was executed.

															In terms of population, if we ask how many
Americans live in a State that at least occasionally carries out an
execution (at least one within the prior three years), the answer
two decades ago was 60% or 70%. Today, that number is 33%. See
Appendix C, infra .

															At the same time, use of the death penalty has
become increasingly concentrated geographically. County-by-county
figures are relevant, for decisions to impose the death penalty
typically take place at a county level. See supra, at 12–13.
County-level sentencing figures show that, between 1973 and 1997,
66 of America’s 3,143 counties accounted for approximately 50% of
all death sentences imposed. Liebman & Clarke 264–265; cf. id., at 266 . (counties with 10% of the Nation’s
population imposed 43% of its death sentences). By the early
2000’s, the death penalty was only actively practiced in a very
small number of counties: between 2004 and 2009, only 35 counties
imposed 5 or more death sentences, i.e., approximately one
per year. See Appendix D, infra (such counties colored in
red) (citing Ford, The Death Penalty’s Last Stand, The Atlantic,
Apr. 21, 2015). And more recent data show that the practice has
diminished yet further: between 2010 and 2015 (as of June 22), only
15 counties imposed five or more death sentences. See Appendix E, infra . In short, the number of active death penalty counties
is small and getting smaller. And the overall statistics on
county-level executions bear this out. Between 1976 and 2007, there
were no executions in 86% of America’s counties. Liebman &
Clarke 265–266, and n. 47; cf. ibid. (counties with
less than 5% of the Nation’s population carried out over half of
its executions from 1976–2007).

															In sum, if we look to States, in more than 60%
there is effectively no death penalty, in an additional 18% an
execution is rare and unusual, and 6%, i.e. , three States,
account for 80% of all executions. If we look to population, about
66% of the Nation lives in a State that has not carried out an
execution in the last three years. And if we look to counties, in
86% there is effectively no death pen-alty. It seems fair to say
that it is now unusual to find capital punishment in the United
States, at least when we consider the Nation as a whole. See Furman , 408 U. S., at 311 (1972) (White, J.,
concurring) (executions could be so infrequently carried out that
they “would cease to be a credible deterrent or measurably to
contribute to any other end of punishment in the criminal justice
system . . . when imposition of the penalty reaches a
certain degreeof infrequency, it would be very doubtful that any
exist-ing general need for retribution would be measurably
satisfied”).

															Moreover, we have said that it “ ‘is not so
much the number of these States that is significant, but the
consistency of the direction of change.’ ” Roper , 543
U. S., at 566 (quoting Atkins , supra , at 315)
(finding significant that five States had abandoned the death
penalty for juveniles, four legislatively and one judicially, since
the Court’s decision in Stanford v. Kentucky , 492
U. S. 361 (1989) ). Judged in that way, capital punishment has
indeed become unusual. Seven States have abolished the death
penalty in the last decade, including (quite recently) Nebraska.
DPIC, States With and Without the Death Penalty, supra . And
several States have come within a single vote of eliminating the
death penalty. Seelye, Measure to Repeal Death Penalty Fails by a
Single Vote in New Hampshire Senate, N. Y. Times, Apr. 17,
2014, p. A12; Dennison, House Deadlocks on Bill To Abolish Death
Penalty in Montana, Billings Gazette, Feb. 23, 2015; see also
Offredo, Delaware Senate Passes Death Penalty Repeal Bill, Delaware
News Journal, Apr. 3, 2015. Eleven States, as noted earlier, have
not executed anyone in eight years. Supra, at 34–35. And
several States have formally stopped executing inmates. See
Yardley, Oregon’s Governor Says He Will Not Allow Executions,
N. Y. Times, Nov. 23, 2011, p. A14 (Oregon); Governor of
Colorado, Exec. Order No. D2013–006, May 22, 2013 (Colorado);
Lovett, Executions Are Suspended by Governor in Washington,
N. Y. Times, Feb. 12, 2014, p. A12 (Washington); Begley,
Pennsylvania Stops Using the Death Penalty, Time, Feb. 13, 2015
(Pennsylvania); see also Welsh-Huggins, Associated Press, Ohio
Executions Rescheduled, Jan. 30, 2015 (Ohio).

															Moreover, the direction of change is consistent.
In the past two decades, no State without a death penalty has
passed legislation to reinstate the penalty. See Atkins , supra, at 315–316; DPIC, States With and Without the Death
Penalty, supra . Indeed, even in many States most associated
with the death penalty, remarkable shifts have occurred. In Texas,
the State that carries out the most executions, the number of
executions fell from 40 in 2000 to 10 in 2014, and the number of
death sentences fell from 48 in 1999 to 9 in 2013 (and 0 thus far
in 2015). DPIC, Executions by State and Year, supra ; BJS, T.
Snell, Capital Punishment, 1999, p. 6 (Table 5) (Dec. 2000)
(hereinafter BJS 1999 Stats); BJS 2013 Stats, at 19 (Table 16); von
Drehle, Bungled Executions, Backlogged Courts, and Three More
Reasons the Modern Death Penalty Is a Failed Experiment, Time, June
8, 2015, p. 26. Similarly dramatic declines are present in
Virginia, Oklahoma, Missouri, and North Carolina. BJS 1999 Stats,
at 6 (Table 5); BJS 2013 Stats, at 19 (Table 16).

															These circumstances perhaps reflect the fact
that a majority of Americans, when asked to choose between the
death penalty and life in prison without parole, now choose the
latter. Wilson, Support for Death Penalty Still High, But Down,
Washington Post, GovBeat, June 5, 2014, online at
www . washingtonpost . com / blogs / govbeat / wp /2014 / 06 / 05 / support - for - death - penalty-still-high-but-down;see
also ALI, Report of the Council to the Membership on the Matter of
the Death Penalty 4 (Apr. 15, 2009) (withdrawing Model Penal Code
section on capital punishment section from the Code, in part
because of doubts that the American Law Institute could “recommend
procedures that would” address concerns about the administration of
the death penalty); cf. Gregg , 428 U. S., at 193–194
(joint opinion of Stewart, Powell, and Stevens, JJ.) (relying in
part on Model Penal Code to conclude that a “carefully drafted
statute” can satisfy the arbitrariness concerns expressed in Furman ).

															I rely primarily upon domestic, not foreign
events, in pointing to changes and circumstances that tend to
justify the claim that the death penalty, constitutionally
speaking, is “unusual.” Those circumstances are sufficient to
warrant our reconsideration of the death penalty’s
constitutionality. I note, however, that many nations—indeed, 95 of
the 193 members of the United Nations—have formally abolished the
death penalty and an additional 42 have abolished it in practice.
Oakford, UN Vote Against Death Penalty Highlights Global
Abolitionist Trend–and Leaves the US Stranded, Vice News, Dec. 19,
2014, online at https :
  /  / news . vice . com  /  article  /  un - vote - against - death -penalty - highlights - global-abolitionist-trend-and-leaves-the-us-stranded.
In 2013, only 22 countries in the world carried out an execution.
International Commission Against Death Penalty, Review 2013, pp.
2–3. No executions were carried out in Europe or Central Asia, and
the United States was the only country in the Americas to execute
an inmate in 2013. Id. , at 3. Only eight countries executed
more than 10 individuals (the United States, China, Iran, Iraq,
Saudi Arabia, Somalia, Sudan, Yemen). Id., at 2. And almost
80% of all known executions took place in three countries: Iran,
Iraq, and Saudi Arabia. Amnesty International, Death Sentences and
Executions 2013, p. 3 (2014). (This figure does not include China,
which has a large population, but where precise data cannot be
obtained. Id., at 2.)

															V

															I recognize a strong counterargument that
favors constitutionality. We are a court. Why should we not leave
the matter up to the people acting democratically through
legislatures? The Constitution foresees a country that will make
most important decisions democratically. Most nations that have
abandoned the death penalty have done so through legislation, not
judicial decision. And legislators, unlike judges, are free to take
account of matters such as monetary costs, which I do not claim are
relevant here. See, e.g., Berman, Nebraska Lawmakers Abolish
the Death Penalty, Narrowly Overriding Governor’s Veto, Washington
Post Blog, Post Nation, May 27, 2015) (listing cost as one of the
reasons why Nebraska legislators re-cently repealed the death
penalty in that State); cf. California Commission on the Fair
Administration of Justice, Report and Recommendations on the
Administration of the Death Penalty in California 117 (June 30,
2008) (death penalty costs California $137 million per year; a
comparable system of life imprisonment without parole would cost
$11.5 million per year), online at
http://www.ccfaj.org/rr-dp-official.html; Dáte, The High Price of
Killing Killers, Palm Beach Post, Jan. 4, 2000, p. 1A (cost of each
execution is $23 million above cost of life imprisonment without
parole in Florida).

															The answer is that the matters I have discussed,
such as lack of reliability, the arbitrary application of a serious
and irreversible punishment, individual suffering caused by long
delays, and lack of penological purpose are quintessentially
judicial matters. They concern the infliction—indeed the unfair,
cruel, and unusual infliction—of a serious punishment upon an
individual. I recognize that in 1972 this Court, in a sense, turned
to Congress and the state legislatures in its search for standards
that would increase the fairness and reliability of imposing a
death penalty. The legislatures responded. But, in the last four
decades, considerable evidence has accumulated that those responses
have not worked.

															Thus we are left with a judicial responsibility.
The Eighth Amendment sets forth the relevant law, and we must
interpret that law. See Marbury v. Madison , 1 Cranch
137, 177 (1803); Hall , 572 U. S., at ___ (slip op., at
19) (“That exercise of independent judgment is the Court’s judicial
duty”). We have made clear that “ ‘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.’ ” Id. , at ___ (slip op.,
at 19) (quoting Coker v. Georgia , 433 U. S. 584,
597 (1977) (plurality opinion)); see also Thompson v. Oklahoma , 487 U. S. 815, 833, n. 40 (1988) (plurality
opinion).

															For the reasons I have set forth in this
opinion, I believe it highly likely that the death penalty violates
the Eighth Amendment. At the very least, the Court should call for
full briefing on the basic question.

															With respect, I dissent.

															APPENDICES

															A

															Death Sentences Imposed 1977–2014

															B

															Executions 1977–2014

															C

															Percentage of U.S. population in States that
conducted an execution within prior 3 years SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14A761 (14-7955)

															_________________

															CHARLES F. WARNER, et al., v. KEVIN J. GROSS, et al.

															on application for stay

															[January 15, 2015]

															The application for stays of execution of
sentences of death presented to Justice Sotomayor and by her
referred to the Court is denied.

															Justice Sotomayor, with whom Justice Ginsburg,
Justice Breyer, and Justice Kagan join, dissenting.

															Charles Warner is to be executed tonight. He
and three other Oklahoma death row inmates filed a petition for
certiorari and an application for stays of their executions,
contending that Oklahoma’s lethal injection protocol violates the
Eighth Amendment. I believe that petitioners have made the showing
necessary to obtain a stay, and dissent from the Court’s refusal to
grant one.

															I

															Oklahoma had originally scheduled Warner’s
execution for April 29, 2014, immediately following its execution
of Clayton Lockett. Both executions were to be carried out with a
three-drug protocol consisting of midazolam, vecuronium bromide,
and potassium chloride. In theory, at least, midazolam should
render a condemned inmate unconscious, vecuronium bromide should
paralyze him, and potassium chloride should stop his heart.

															But the Lockett execution went poorly, to say
the least. Lockett awoke and writhed on the execution table for
some time after the drugs had been injected and officials confirmed
him to be unconscious. He was overheard to say, “ ‘Something
is wrong,’ ” and, “ ‘The drugs aren’t working.’ ”
App. C to Pet. for Cert. 6 (App.). Eventually, some 40 minutes
after the lethal injection drugs were administered, Lockett
died.

															The State stayed all pending executions while it
investigated what had gone wrong. Ultimately, the State issued a
report that placed much of the blame on the execution team’s
failure to insert properly an intravenous (IV) line, finding that a
large quantity of the drugs that should have been introduced into
Lockett’s blood stream had instead pooled in the tissue near the IV
access point. An autopsy did determine, however, that the
concentration of midazolam in Lockett’s blood was higher than
necessary to render an average person unconscious.

															Soon thereafter, the State adopted a new
execution protocol. The protocol contains a number of procedures
designed to better ensure that execution team members are able to
insert properly an IV line and assess the condemned inmate’s
consciousness. The protocol also provides for four alternative drug
combinations that can be used for lethal injections, one of which
is the same midazolam/vecuronium bromide/potassium chloride
combination that was used in the Lockett execution. Whereas the
prior protocol called for the injection of only 100 milligrams of
midazolam, the new protocol now calls for the injection of 500
milligrams of that drug. The State has announced that it plans to
use this particular drug combination in all upcoming
executions.[ 1 ]*

															Warner, along with 20 other Oklahoma death-row
inmates, filed a 42 U. S. C. §1983 complaint against
various state officials, contending that the State’s proposed use
of midazolam in executions would violate the Eighth Amendment. Four
of the plaintiffs, including Warner, then requested a preliminary
injunction to prevent the State from implementing the new protocol
and executing them.

															The District Court held a 3-day evidentiary
hearing. Two expert witnesses for the plaintiffs testified that
although midazolam could be used to render an individual
unconscious, it was not and could not be relied on as an anesthetic
because the patient could likely regain consciousness if exposed to
noxious stimuli—such as the injection of potassium chloride. For
that reason, the Food and Drug Administration (FDA) has not
approved the drug for use as an anesthetic. As anesthesiologist Dr.
Lubarsky detailed, midazolam is subject to a “ ‘ceiling
effect’ ” such that, no matter the dosage, it reaches a point
of saturation and has no more effect, and at this saturation point
the drug cannot keep someone unconscious. App. C, at 43. According
to these experts, this feature distinguishes midazolam—a
benzodiazepine, like Valium or Xanax—from barbiturates such as
pentobarbital or sodium thiopental, which are often used as the
first drug in a three-drug lethal injection protocol. In response,
the State called a doctor of pharmacy, Dr. Evans, who disputed
these claims. Although Dr. Evans acknowledged that midazolam was
not generally employed as an anesthetic, he contended that it would
function as one if given in a high enough (and ordinarily lethal)
dose.

															The District Court denied the plaintiffs’ motion
for a preliminary injunction, concluding that they had demonstrated
no likelihood of success on the merits of their claims. The
District Court found that “[t]he proper administration of 500
milligrams of midazolam . . . would make it a virtual
certainty that any individual will be at a sufficient level of
unconsciousness to resist the noxious stimuli which could occur
from the application of the second and third drugs.” Id ., at
42. Based on that finding, the District Court held that the
plaintiffs had failed to establish that the protocol “presents a
risk that is ‘sure or very likely to cause serious illness and
needless suffering.’ ” Id., at 65 (quoting Baze v. Rees , 553 U.S.
35 , 50 (2008) (plurality opinion of Roberts, C. J.)). The
District Court also concluded that there was a “separate reason”
the plaintiffs had failed to establish a likelihood of success:
They had not identified a “ ‘known and available
alternative’ ” by which they could be executed, as the State
had “affirmatively shown that sodium thiopental and pentobarbital,
the only alternatives to which the plaintiffs ha[d] alluded, are
not available to the” State. App. C, at 66–67 (quoting Baze ,
553 U. S., at 61).

															The Tenth Circuit affirmed the District Court’s
order denying a preliminary injunction. The court held that the
District Court had been correct to require the plaintiffs to
identify an available alternative means of execution, and found
itself unable to conclude that the District Court’s factual
findings regarding midazolam’s effectiveness had been clearly
erroneous. 2015 WL 137627, *8–*9, *12 (Jan. 12, 2015). The four
plaintiffs, including Warner, petitioned for certiorari and filed
an accompanying application for a stay of their executions.

															II

															To grant a stay, we must find a reasonable
probability that the Court would vote to grant certiorari, a
significant possibility of reversal, and a likelihood of
irreparable injury to the applicant in the absence of a stay. See Barefoot v. Estelle , 463 U.S.
880 , 895 (1983). Petitioners’ application met these
criteria.

															First, the question whether the courts below
properly read Baze to require petitioners to identify other
drugs that the State might use to execute them warrants this
Court’s attention. The Baze plurality’s statement that a
challenger must show that the risk of severe pain is “substantial
when compared to the known and available alternatives,” 553
U. S., at 61, pertained to an Eighth Amendment claim that the
procedures employed in a particular protocol were inferior to other
procedures the State assertedly should have adopted, see id. , at 51; see also id., at 62 (“Petitioners agree
that, if administered as intended, that procedure will result in a
painless death”). The same requirement should not necessarily
extend to a claim that the planned execution will be
unconstitutionally painful even if performed correctly; it would be
odd if the constitutionality of being burned alive, for example,
turned on a challenger’s ability to point to an available
guillotine. Indeed, Baze did not purport to overrule or even
address Hill v. McDonough , 547 U.S. 573, 582 (2006),
which rejected the argument that §1983 plaintiffs such as
petitioners must plead an “alternative, authorized method of
execution.”

															Second, both lower courts alternatively held
that the use of midazolam did not create a substantial risk of
unnecessary pain within the meaning of Baze . As for that
holding, petitioners correctly point out that the decision in Baze was based on the understanding that the first drug in
the three-drug cocktail—there, sodium thiopental—would work as
intended. “It [was] 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.” 553 U. S., at 53 (plurality
opinion). This issue is likewise uncontested here. If the first,
anesthetic drug does not work, then the second and third drugs will
leave the inmate paralyzed, slowly dying in “excruciating pain.” Id. , at 71 (Stevens, J., concurring in judgment).

															Petitioners’ likelihood of success on the merits
turns primarily, then, on the contention that midazolam cannot be
expected to maintain a condemned inmate in an unconscious state. I
find the District Court’s conclusion that midazolam will in fact
work as intended difficult to accept given recent experience with
the use of this drug. Lockett was able to regain consciousness even
after having received a dose of midazolam—confirmed by a blood
test—supposedly sufficient to knock him out entirely. Likewise, in
Arizona’s July 23, 2014, execution of Joseph Wood, the condemned
inmate allegedly gasped for nearly two hours before dying,
notwithstanding having been injected with the drug hydromorphone
and 750 milligrams of midazolam—that is, 50% more of the drug than
Oklahoma intends to use. Moreover, since the District Court denied
the request for a preliminary injunction in this case, Ohio
announced that it would no longer employ a similar two-drug
cocktail involving midazolam and hydromorphone, which it used in a
January 2014 execution during which the condemned inmate reportedly
gasped and snorted for more than 20 minutes. See Williams, Drug
Switch May Delay Executions in Ohio, N. Y. Times, Jan. 9, 2015, p.
A15 (Washington, DC, ed.).

															Although the State emphasizes that Florida
continues to employ a lethal injection protocol that utilizes the
same drug types and amounts as will now be employed in Oklahoma,
its apparent success with that method is subject to question
because the injection of the paralytic vecuronium bromide may mask
the ineffectiveness of midazolam as an anesthetic: The inmate may
be fully conscious but unable to move. See Baze , 553
U. S., at 71 (Stevens, J., concurring in judgment) (noting
that the use of a paralytic “masks any outward sign of distress”).
The deficiency of midazolam may generally be revealed only in an
execution, such as Lockett’s, where the IV fails to sufficiently
deliver the paralyzing agent.

															Moreover, there are numerous reasons to be
skeptical of the evidence underlying the District Court’s
conclusion. As petitioners emphasize, a number of scientific
studies support the conclusion that midazolam does, in fact, have a
ceiling effect, and in part for that reason has not been approved
for use as an anesthetic by the FDA. In contending that midazolam
will work as the State intends, Dr. Evans cited no studies, but
instead appeared to rely primarily on the Web site www.drugs.com.
But see App. H, at 88 (Web site’s disclaimer that material provided
is “not intended for medical advice, diagnosis or treatment”).
Furthermore, his opinion was premised on his belief that
midazolam’s demonstrated “ceiling effect” was an effect specific to
the spinal cord, and that there was no “ceiling effect” with
respect to midazolam’s operation on the brain. But petitioners—who
were not given the opportunity to present rebuttal evidence in the
District Court—submitted to the Court of Appeals an affidavit from
Dr. Lubarsky that explained: “[T]he ceiling effect is
scientifically proven as fact and does not occur at the spinal cord
level, nor has it been extensively studied there. Primary modes of
anesthetic action of midazolam occur in the brain (Perouansky,
Pearce & Hemmings, 2015) where electrical activity
. . . is not further diminished with larger doses.” App.
F, at 1 (emphasis deleted).

															I am deeply troubled by this evidence suggesting
that midazolam cannot constitutionally be used as the first drug in
a three-drug lethal injection protocol. It is true that we give
deference to the district courts. But at some point we must
question their findings of fact, unless we are to abdicate our role
of ensuring that no clear error has been committed. We should
review such findings with added care when what is at issue is the
risk of the needless infliction of severe pain. Here, given the
evidence before the District Court, I struggle to see how its
decision to credit the testimony of a single purported expert can
be supported given the substantial body of conflicting empirical
and anecdotal evidence.

															I believe that we should have granted
petitioners’ application for stay. The questions before us are
especially important now, given States’ increasing reliance on new
and scientifically untested methods of execution. Petitioners have
committed horrific crimes, and should be punished. But the Eighth
Amendment guarantees that no one should be subjected to an
execution that causes searing, unnecessary pain before death. I
hope that our failure to act today does not portend our
unwillingness to consider these questions. Notes 1 * The State has indicated
that it intends to use rocuronium bromide in place of vecuronium
bromide, but there does not appear to be any dispute that there is
no material difference between these two drugs. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–7955

															_________________

															RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2015]

															Justice Sotomayor, with whom Justice Ginsburg,
Justice Breyer, and Justice Kagan join, dissenting.

															Petitioners, three inmates on Oklahoma’s death
row, challenge the constitutionality of the State’s lethal
injection protocol. The State plans to execute petitioners using
three drugs: midazolam, rocuronium bromide, and potassium chloride.
The latter two drugs are intended to paralyze the inmate and stop
his heart. But they do so in a torturous manner, causing burning,
searing pain. It is thus critical that the first drug, midazolam,
do what it is supposed to do, which is to render and keep the
inmate unconscious. Petitioners claim that midazolam cannot be
expected to perform that function, and they have presented ample
evidence showing that the State’s planned use of this drug poses
substantial, constitutionally intolerable risks.

															Nevertheless, the Court today turns aside
petitioners’ plea that they at least be allowed a stay of execution
while they seek to prove midazolam’s inadequacy. The Court achieves
this result in two ways: first, by deferring to the District
Court’s decision to credit the scientifically unsupported and
implausible testimony of a single expert witness; and second, by
faulting petitioners for failing to satisfy the wholly novel
requirement of proving the availability of an alternative means for
their own executions. On both counts the Court errs. As a result,
it leaves petitioners exposed to what may well be the chemical
equivalent of being burned at the stake.

															I

															A

															The Eighth Amendment succinctly prohibits the
infliction of “cruel and unusual punishments.” Seven years ago, in Baze v. Rees , 553 U. S. 35 (2008) , the Court
addressed the application of this mandate to Kentucky’s lethal
injection protocol. At that time, Kentucky, like at least 29 of the
35 other States with the death penalty, utilized a series of three
drugs to perform executions: (1) sodium thiopental, a “fast-acting
barbiturate sedative that induces a deep, comalike unconsciousness
when given in the amounts used for lethal injection”; (2)
pancuronium bromide, “a paralytic agent that inhibits all
muscular-skeletal movements and . . . stops respiration”;
and (3) potassium chloride, which “interferes with the electrical
signals that stimulate the contractions of the heart, inducing
cardiac arrest.” Id., at 44 (plurality opinion of Roberts,
C. J.).

															In Baze , it was undisputed that absent a
“proper dose of sodium thiopental,” there would be a “substantial,
constitutionally unacceptable risk of suffocation from the
administration of pancuronium bromide and pain from the injection
of potassium chloride.” Id., at 53. That is because, if
given to a conscious inmate, pancuronium bromide would leave him or
her asphyxiated and unable to demonstrate “any outward sign of
distress,” while potassium chloride would cause “excruciating
pain.” Id., at 71 (Stevens, J., concurring in judgment). But
the Baze petitioners conceded that if administered as
intended, Kentucky’s method of execution would nevertheless “result
in a humane death,” id., at 41 (plurality opinion), as the
“proper administration” of sodium thiopental “eliminates any
meaningful risk that a prisoner would experience pain from the
subsequent injections of pancuronium and potassium chloride,” id., at 49. Based on that premise, the Court ultimately
rejected the challenge to Kentucky’s protocol, with the plurality
opinion concluding that the State’s procedures for administering
these three drugs ensured there was no “objectively intolerable
risk” of severe pain. Id., at 61–62 (internal quotation
marks omitted).

															B

															For many years, Oklahoma performed executions
using the same three drugs at issue in Baze. After Baze was decided, however, the primary producer of sodium
thiopental refused to continue permitting the drug to be used in
executions. Ante, at 4–5. Like a number of other States,
Oklahoma opted to substitute pentobarbital, another barbiturate, in
its place. But in March 2014, shortly before two scheduled
executions, Oklahoma found itself unable to secure this drug. App.
144.

															The State rescheduled the executions for the
following month to give it time to locate an alternative
anesthetic. In less than a week, a group of officials from the
Okla-homa Department of Corrections and the Attorney General’s
office selected midazolam to serve as a replacement for
pentobarbital. Id., at 145, 148–149.

															Soon thereafter, Oklahoma used midazolam for the
first time in its execution of Clayton Lockett. That execution did
not go smoothly. Ten minutes after an intravenous (IV) line was set
in Lockett’s groin area and 100 milligrams of midazolam were
administered, an attending physician declared Lockett unconscious. Id. , at 392–393. When the paralytic and potassium chloride
were administered, however, Lockett awoke. Ibid . Various
witnesses reported that Lockett began to writhe against his
restraints, saying, “[t]his s*** is f***ing with my mind,”
“something is wrong,” and “[t]he drugs aren’t working.” Id. ,
at 53 (internal quotation marks omitted). State officials ordered
the blinds lowered, then halted the execution. Id. , at 393,
395. But 10 minutes later—approximately 40 minutes after the
execution began—Lockett was pronounced dead. Id. , at
395.

															The State stayed all future executions while it
sought to determine what had gone wrong in Lockett’s. Five months
later, the State released an investigative report identifying a
flaw in the IV line as the principal difficulty: The IV had failed
to fully deliver the lethal drugs into Lockett’s veins. Id. ,
at 398. An autopsy determined, however, that the concentration of
midazolam in Lockett’s blood was more than sufficient to render an
average person unconscious. Id. , at 397, 405.

															In response to this report, the State modified
its lethal injection protocol. The new protocol contains a number
of procedures designed to guarantee that members of the execution
team are able to insert the IV properly, and charges them with
ensuring that the inmate is unconscious. Id. , at 57–66,
361–369. But the protocol continues to authorize the use of the
same three-drug formula used to kill Lockett—though it does
increase the intended dose of midazolam from 100 milligrams to 500
milligrams. Id., at 61. The State has indicated that it
plans to use this drug combination in all upcoming executions,
subject to only an immaterial substitution of paralytic agents. Ante , at 7–8.

															C

															In June 2014, inmates on Oklahoma’s death row
filed a 42 U. S. C. §1983 suit against respondent prison
officials challenging the constitutionality of Oklahoma’s method of
execution. After the State released its revised execution protocol,
the four inmates whose executions were most imminent—Charles
Warner, along with petitioners Richard Glossip, John Grant, and
Benjamin Cole—moved for a preliminary injunction. They contended,
among other things, that the State’s intended use of midazolam
would violate the Eighth Amendment because, unlike sodium
thiopental or pentobarbital, the drug “is incapable of producing a
state of unawareness that will be reliably maintained after either
of the other two pain-producing drugs . . . is injected.”
Amended Complaint ¶101.

															The District Court held a 3-day evidentiary
hearing, at which petitioners relied principally on the testimony
of two experts: Dr. David Lubarsky, an anesthesiologist, and Dr.
Larry Sasich, a doctor of pharmacy. The State, in turn, based its
case on the testimony of Dr. Roswell Evans, also a doctor of
pharmacy.

															To a great extent, the experts’ testimony
overlapped. All three experts agreed that midazolam is from a class
of sedative drugs known as benzodiazepines (a class that includes
Valium and Xanax), and that it has no analgesic—or
pain-relieving—effects. App. 205 (Lubarsky), 260–261
(Sasich) , 311 (Evans). They further agreed that while
midazolam can be used to render someone unconscious, it is not
approved by the Federal Drug Administration (FDA) for use as, and
is not in fact used as, a “sole drug to produce and maintain
anesthesia in surgical proceedings.” Id., at 307, 327
(Evans); see id., at 171 (Lubarsky); id., at 262
(Sasich). Finally, all three experts recognized that midazolam is
subject to a ceiling effect, which means that there is a point at
which increasing the dose of the drug does not result in any
greater effect. Id., at 172 (Lubarsky), 243 (Sasich), 331
(Evans).

															The experts’ opinions diverged, however, on the
crucial questions of how this ceiling effect operates, and whether
it will prevent midazolam from keeping a condemned inmate
unconscious when the second and third lethal injection drugs are
administered. Dr. Lubarsky testified that while benzodiazepines
such as midazolam may, like barbiturate drugs such as sodium
thiopental and pentobarbital, induce unconsciousness by inhibiting
neuron function, they do so in a materially different way. Id., at 207. More specifically, Dr. Lubarsky explained that
both barbiturates and benzodiazepines initially cause sedation by
facilitating the binding of a naturally occurring chemical called
gamma-aminobutyric acid (GABA) with GABA receptors, which then
impedes the flow of electrical impulses through the neurons in the
central nervous system. Id., at 206. But at higher doses,
barbiturates also act as a GABA substitute and mimic its
neuron-suppressing effects. Ibid. By contrast,
benzodiazepines lack this mimicking function, which means their
effect is capped at a lower level of sedation. Ibid. Critically, according to Dr. Lubarsky, this ceiling on midazolam’s
sedative effect is reached before full anesthesia can be achieved. Ibid . Thus, in his view, while “midazolam unconsciousness is
. . . sufficient” for “minor procedure[s],” Tr. of
Preliminary Injunction Hearing 132–133 (Tr.), it is incapable of
keeping someone “insensate and immobile in the face of [more]
noxious stimuli,” including the extreme pain and discomfort
associated with administration of the second and third drugs in
Oklahoma’s lethal injection protocol, App. 218. Dr. Sasich endorsed
Dr. Lubarsky’s description of the ceiling effect, and offered
similar reasons for reaching the same conclusion. See id., at 243, 248, 262.

															In support of these assertions, both experts
cited a variety of evidence. Dr. Lubarsky emphasized, in
particular, Arizona’s 2014 execution of Joseph Wood, which had been
conducted using midazolam and the drug hydromorphone rather than
the three-drug cocktail Oklahoma intends to employ.[ 1 ] Id., at 176. Despite being
administered 750 milligrams of midazolam, Wood had continued
breathing and moving for nearly two hours—which, according to Dr.
Lubarsky, would not have occurred “during extremely deep levels of
anesthesia.” Id., at 177. Both experts also cited various
scientific articles and textbooks to support their conclusions. For
instance, Dr. Lubarsky relied on a study measuring the brain
activity of rats that were administered midazolam, which showed
that the drug’s impact significantly tailed off at higher doses.
See Hovinga et al., Pharmacokinetic-EEG Effect Relationship of
Midazolam in Aging BN/BiRij Rats, 107 British J. Pharmacology 171,
173, Fig. 2 (1992). He also pointed to a pharmacology textbook that
confirmed his description of how benzodiazepines and barbiturates
produce their effects, see Stoelting & Hillier 127–128,
140–144, and a survey article concluding that “[m]idazolam cannot
be used alone . . . to maintain adequate anesthesia,”
Reves, Fragen, Vinik, & Greenblatt, Midazolam: Pharmacology and
Uses, 62 Anesthesiology 310, 318 (1985) (Reves). For his part, Dr.
Sasich referred to a separate survey article, which similarly
recognized and described the ceiling effect to which
benzodiazepines are subject. See Saari, Uusi- Oukari, Ahonen, &
Olkkola, Enhancement of GABAergic Activity: Neuropharmacological
Effects of Benzodiazepines and Therapeutic Use in Anesthesiology,
63 Pharamacological Rev. 243, 244, 250 (2011) (Saari).

															By contrast, Dr. Evans, the State’s expert,
asserted that a 500-milligram dose of midazolam would “render the
person unconscious and ‘insensate’ during the remainder of the
[execution] procedure.” App. 294. He rested this conclusion on two
interrelated propositions.

															First, observing that a therapeutic dose of
midazolam to treat anxiety is less than 5 milligrams for a
70-kilogram adult, Dr. Evans emphasized that Oklahoma’s planned
administration of 500 milligrams of the drug was “at least 100
times the normal therapeutic dose.” Ibid. While he
acknowledged that “[t]here are no studies that have been done
. . . administering that much . . . midazolam
. . . to anybody,” he noted that deaths had occurred in
doses as low as 0.04 to 0.07 milligrams per kilogram (2.8 to 4.9
milligrams for a 70-kilogram adult), and contended that a
500-milligram dose would itself cause death within less than an
hour—a conclusion he characterized as “essentially an extrapolation
from a toxic effect.” Id., at 327; see id., at
308.

															Second, in explaining how he reconciled his
opinion with the evidence of midazolam’s ceiling effect, Dr. Evans
testified that while “GABA receptors are found across the entire
body,” midazolam’s ceiling effect is limited to the “spinal cord”
and there is “no ceiling effect” at the “higher level of [the]
brain.” Id., at 311–312. Consequently, in his view, “as you
increase the dose of midazolam, it’s a linear effect, so you’re
going to continue to get an impact from higher doses of the drug,” id. , at 332, until eventually “you’re paralyzing the brain,” id. , at 314. Dr. Evans also understood the chemical source
of midazolam’s ceiling effect somewhat differently from
petitioners’ experts. Although he agreed that midazolam produces
its effect by “binding to [GABA] receptors,” id., at 293, he
appeared to believe that midazolam produced sedation by “inhibiting
GABA” from attaching to GABA receptors, not by promoting GABA’s
sedative effects, id., at 312. Thus, when asked about Dr.
Lubarsky’s description of the ceiling effect, Dr. Evans
characterized the phenomenon as stemming from “the competitive
nature of substances trying to attach to GABA receptors.” Id. , at 313.

															Dr. Evans cited no scholarly research in support
of his opinions. Instead, he appeared to rely primarily on two
sources: the Web site www.drugs.com, and a “Material Safety Data
Sheet” produced by a midazolam manufacturer. See id. , at
303. Both simply contained general information that covered the
experts’ areas of agreement.

															D

															The District Court denied petitioners’ motion
for a preliminary injunction. It began by making a series of
factual findings regarding the characteristics of midazolam and its
use in Oklahoma’s execution protocol. Most relevant here, the
District Court found that “[t]he proper administration of 500
milligrams of midazolam . . . would make it a virtual
certainty that an individual will be at a sufficient level of
unconsciousness to resist the noxious stimuli which could occur
from the application of the second and third drugs.” Id. , at
77. Respecting petitioners’ contention that there is a “ceiling
effect which prevents an increase in dosage from having a
corresponding incremental effect on anesthetic depth,” the District
Court concluded:

															“Dr. Evans testified persuasively
. . . that whatever the ceiling effect of midazolam may
be with respect to anesthesia, which takes effect at the spinal
cord level, there is no ceiling effect with respect to the ability
of a 500 milligram dose of midazolam to effectively paralyze the
brain, a phenomenon which is not anesthesia but does have the
effect of shutting down respiration and eliminating the
individual’s awareness of pain.” Id. , at 78.

															Having made these findings, the District Court
held that petitioners had shown no likelihood of success on the
merits of their Eighth Amendment claim for two independent reasons.
First, it determined that petitioners had “failed to establish that
proceeding with [their] execution[s] . . . on the basis
of the revised protocol presents . . . ‘an objectively
intolerable risk of harm.’ ” Id. , at 96. Second, the
District Court held that petitioners were unlikely to prevail
because they had not identified any “ ‘known and available
alternative’ ” means by which they could be executed—a
requirement it understood Baze to impose. Id. , at 97.
The District Court concluded that the State “ha[d] affirmatively
shown that sodium thiopental and pentobarbital, the only
alternatives to which the [petitioners] have even alluded, are not
available to the [State].” Id. , at 98.

															The Court of Appeals for the Tenth Circuit
affirmed. Warner v. Gross , 776 F. 3d 721 (2015).
It, like the District Court, held that petitioners were unlikely to
prevail on the merits because they had failed to prove the
existence of “ ‘known and available alternatives.’ ” Id., at 732. “In any event,” the court continued, it was
unable to conclude that the District Court’s factual findings had
been clearly erroneous, and thus petitioners had also “failed to
establish that the use of midazolam in their executions
. . . creates a demonstrated risk of severe pain.” Ibid. Petitioners and Charles Warner filed a petition
for certiorari and an application to stay their executions. The
Court denied the stay application, and Charles Warner was executed
on January 15, 2015. See Warner v. Gross , 574
U. S. ___ (2015) (Sotomayor, J., dissenting from denial of
certiorari). The Court subsequently granted certiorari and, at the
request of the State, stayed petitioners’ pending executions.

															II

															I begin with the second of the Court’s two
holdings: that the District Court properly found that petitioners
did not demonstrate a likelihood of showing that Oklahoma’s
execution protocol poses an unconstitutional risk of pain. In
reaching this conclusion, the Court sweeps aside substantial
evidence showing that, while midazolam may be able to induce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli. Instead, like the
District Court, the Court finds comfort in Dr. Evans’ wholly
unsupported claims that 500 milligrams of midazolam will
“paralyz[e] the brain.” In so holding, the Court disregards an
objectively intolerable risk of severe pain.

															A

															Like the Court, I would review for clear error
the District Court’s finding that 500 milligrams of midazolam will
render someone sufficiently unconscious “ ‘to resist the
noxious stimuli which could occur from the application of the
second and third drugs.’ ” Ante, at 18–19 (quoting App.
77). Unlike the Court, however, I would do so without abdicating
our duty to examine critically the factual predicates for the
District Court’s finding—namely, Dr. Evans’ testimony that
midazolam has a “ceiling effect” only “at the spinal cord level,”
and that a “500 milligram dose of midazolam” can therefore
“effectively paralyze the brain.” Id., at 78. To be sure, as
the Court observes, such scientific testimony may at times lie at
the boundaries of fed-eral courts’ expertise. See ante , at
17–18. But just because a purported expert says something does not
make it so. Especially when important constitutional rights are at
stake, federal district courts must carefully evaluate the premises
and evidence on which scientific conclusions are based, and
appellate courts must ensure that the courts below have in fact
carefully considered all the evidence presented. Clear error exists
“when although there is evidence to support” a finding, “the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United
States v. United States Gypsum Co. , 333 U. S. 364,
395 (1948) . Here, given the numerous flaws in Dr. Evans’
testimony, there can be little doubt that the District Court
clearly erred in relying on it.

															To begin, Dr. Evans identified no scientific
literature to support his opinion regarding midazolam’s properties
at higher-than-normal doses. Apart from a Material Safety Data
Sheet that was relevant only insofar as it suggests that a low dose
of midazolam may occasionally be toxic, see ante, at 27—an
issue I discuss further below—Dr. Evans’ testimony seems to have
been based on the Web site www.drugs.com. The Court may be right
that “petitioners do not identify any incorrect statements from
drugs.com on which Dr. Evans relied.” Ante , at 27. But that
is because there were no statements from drugs.com that
supported the critically disputed aspects of Dr. Evans’ opinion. If
anything, the Web site supported petitioners’ contentions, as it
expressly cautioned that midazolam “[s]hould not be used alone for
maintenance of anesthesia,” App. H to Pet. for Cert. 6159, and
contained no warning that an excessive dose of midazolam could
“paralyze the brain,” see id., at 6528–6529.

															Most importantly, nothing from drugs.com—or, for
that matter, any other source in the record—corroborated Dr. Evans’
key testimony that midazolam’s ceiling effect is limited to the
spinal cord and does not pertain to the brain. Indeed, the State
appears to have disavowed Dr. Evans’ spinal-cord theory, refraining
from even mentioning it in its brief despite the fact that the
District Court expressly relied on this testimony as the basis for
finding that larger doses of midazolam will have greater anesthetic
effects. App. 78. The Court likewise assiduously avoids defending
this theory.

															That is likely because this aspect of Dr. Evans’
testi-mony was not just unsupported, but was directly refuted by
the studies and articles cited by Drs. Lubarsky and Sasich. Both of
these experts relied on academic texts describing benzodiazepines’
ceiling effect and explaining why it prevents these drugs from
rendering a person completely insensate. See Stoelting &
Hillier 141, 144 (describing midazolam’s ceiling effect and
contrasting the drug with barbiturates); Saari 244 (observing that
“abolishment of perception of environmental stimuli cannot usually
be generated”). One study further made clear that the ceiling
effect is apparent in the brain. See id., at 250.

															These scientific sources also appear to
demonstrate that Dr. Evans’ spinal-cord theory— i.e., that
midazolam’s ceiling effect is limited to the spinal cord—was
premised on a basic misunderstanding of midazolam’s mechanism of
action. I say “appear” not because the sources themselves are
unclear about how midazolam operates: They plainly state that
midazolam functions by promoting GABA’s inhibitory effects on the
central nervous system. See, e.g., Stoelting & Hillier
140. Instead, I use “appear” because discerning the rationale
underlying Dr. Evans’ testimony is difficult. His spinal-cord
theory might, however, be explained at least in part by his
apparent belief that rather than promoting GABA’s inhibitory
effects, midazolam produces sedation by “compet[ing]” with GABA and
thus “inhibit[ing]” GABA’s effect. App. 312–313.[ 2 ] Regardless, I need not delve too deeply
into Dr. Evans’ alternative scientific reality. It suffices to say
that to the extent that Dr. Evans’ testimony was based on his
understanding of the source of midazolam’s pharmacological
properties, that understanding was wrong.

															These inconsistencies and inaccuracies go to the
very heart of Dr. Evans’ expert opinion, as they were the key
components of his professed belief that one can extrapolate from
what is known about midazolam’s effect at low doses to conclude
that the drug would “paralyz[e] the brain” at Oklahoma’s planned
dose. Id., at 314. All three experts recognized that there
had been no scientific testing on the use of this amount of
midazolam in conjunction with these particular lethal injection
drugs. See ante , at 19; App. 176 (Lubarsky), 243–244
(Sasich), 327 (Evans). For this reason, as the Court correctly
observes, “extrapolation was reasonable.” Ante , at 20. But
simply because extrapolation may be reasonable or even required
does not mean that every conceivable method of extrapolation can be
credited, or that all estimates stemming from purported
extrapolation are worthy of belief. Dr. Evans’ view was that
because 40 milligrams of midazolam could be used to induce
unconsciousness, App. 294, and because more drug will generally
produce more effect, a significantly larger dose of 500 milligrams
would not just induce unconsciousness but allow for its maintenance
in the face of extremely painful stimuli, and ultimately even cause
death itself. In his words: “[A]s you increase the dose of
midazolam, it’s a linear effect, so you’re going to continue to get
an impact from higher doses of the drug.” Id. , at 332. If,
however, there is a ceiling with respect to midazolam’s effect on
the brain—as petitioners’ experts established there is—then such
simplistic logic is not viable. In this context, more is not
necessarily better, and Dr. Evans was plainly wrong to presume it
would be.

															If Dr. Evans had any other basis for the
“extrapolation” that led him to conclude 500 milligrams of
midazolam would “paralyz[e] the brain,” id. , at 314, it was
even further divorced from scientific evidence and logic. Having
emphasized that midazolam had been known to cause approximately 80
deaths, Dr. Evans asserted that his opinion regarding the efficacy
of Oklahoma’s planned use of the drug represented “essentially an
extrapolation from a toxic effect.” Id. , at 327
(emphasis added); see id., at 308. Thus, Dr. Evans appeared
to believe—and again, I say “appeared” because his rationale is not
clear—that because midazolam caused some deaths, it would
necessarily cause complete unconsciousness and then death at
especially high doses. But Dr. Evans also thought, and Dr. Lubarsky
confirmed, that these midazolam fatalities had occurred at very low
doses—well below what any expert said would produce
unconsciousness. See id. , at 207, 308. These deaths thus
seem to represent the rare, unfortunate side effects that one would
expect to see with any drug at normal therapeutic doses; they
provide no indication of the effect one would expect midazolam to
have on the brain at substantially higher doses. Deaths occur with
almost any product. One might as well say that because some people
occasionally die from eating one peanut, one hundred peanuts would
necessarily induce a coma and death in anyone.[ 3 ]

															In sum, then, Dr. Evans’ conclusions were
entirely unsupported by any study or third-party source,
contradicted by the extrinsic evidence proffered by petitioners,
inconsistent with the scientific understanding of midazolam’s
properties, and apparently premised on basic logical errors. Given
these glaring flaws, the District Court’s acceptance of Dr. Evans’
claim that 500 milligrams of midazolam would “paralyz[e] the brain”
cannot be credited. This is not a case “[w]here there are two
permissibleviews of the evidence,” and the District Court chose
one; rather, it is one where the trial judge credited “one of two
or more witnesses” even though that witness failed to tell “a
coherent and facially plausible story that is not contradicted by
extrinsic evidence.” Anderson v. Bessemer City , 470
U. S. 564 –575 (1985). In other words, this is a case in which
the District Court clearly erred. See ibid. B

															Setting aside the District Court’s erroneous
factual finding that 500 milligrams of midazolam will necessarily
“paralyze the brain,” the question is whether the Court is
nevertheless correct to hold that petitioners failed to demonstrate
that the use of midazolam poses an “objectively intolerable risk”
of severe pain. See Baze , 553 U. S., at 50 (plurality
opinion) (internal quotation marks omitted). I would hold that they
made this showing. That is because, in stark contrast to Dr. Evans,
petitioners’ experts were able to point to objective evidence
indicating that midazolam cannot serve as an effective anesthetic
that “render[s] a person insensate to pain caused by the second and
third [lethal injection] drugs.” Ante , at 23.

															As observed above, these experts cited multiple
sources supporting the existence of midazolam’s ceiling effect.
That evidence alone provides ample reason to doubt midazolam’s
efficacy. Again, to prevail on their claim, petitioners need only
establish an intolerable risk of pain, not a certainty. See Baze , 553 U. S., at 50. Here, the State is attempting
to use midazolam to produce an effect the drug has never previously
been demonstrated to produce, and despite studies indicating that
at some point increasing the dose will not actually increase the
drug’s effect. The State is thus proceeding in the face of a very
real risk that the drug will not work in the manner it claims.

															Moreover, and perhaps more importantly, the
record provides good reason to think this risk is substantial. The
Court insists that petitioners failed to provide “probative
evidence” as to whether “midazolam’s ceiling effect occurs below
the level of a 500-milligram dose and at a point at which the drug
does not have the effect of rendering a person insensate to pain.” Ante , at 23. It emphasizes that Dr. Lubarsky was unable to
say “at what dose the ceiling effect occurs,” and could only
estimate that it was “ ‘[p]robably after about . . .
40 to 50 milligrams.’ ” Ante, at 23 (quoting App.
225).

															But the precise dose at which midazolam
reaches its ceiling effect is irrelevant if there is no dose at
which the drug can, in the Court’s words, render a person
“insensate to pain.” Ante , at 23. On this critical point,
Dr. Lubarsky was quite clear.[ 4 ] He explained that the drug “does not work to produce” a
“lack of consciousness as noxious stimuli are applied,” and is “not
sufficient to produce a surgical plane of anesthesia in human
beings.” App. 204. He also noted that “[t]he drug would never be
used and has never been used as a sole anesthetic to give
anesthesia during a surgery,” id., at 223, and asserted that
“the drug was not approved by the FDA as a sole anesthetic because
after the use of fairly large doses that were sufficient to reach
the ceiling effect and produce induction of unconsciousness, the
patients responded to the surgery,” id. , at 219. Thus, Dr.
Lubarsky may not have been able to identify whether this effect
would be reached at 40, 50, or 60 milligrams or some higher
threshold, but he could specifythat at no level would midazolam
reliably keep an in-mate unconscious once the second and third
drugs were delivered.[ 5 ]

															These assertions were amply supported by the
evidence of the manner in which midazolam is and can be used. All
three experts agreed that midazolam is utilized as the sole
sedative only in minor procedures. Dr. Evans, for example,
acknowledged that while midazolam may be used as the sole drug in
some procedures that are not “terribly invasive,” even then “you
would [generally] see it used in combination with a narcotic.” Id., at 307. And though, as the Court observes, Dr. Sasich
believed midazolam could be “used for medical procedures like
colonoscopies and gastroscopies,” ante , at 21, he insisted
that these procedures were not necessarily painful, and that it
would be a “big jump” to conclude that midazolam would be effective
to maintain unconsciousness throughout an execution. Tr. 369–370.
Indeed, the record provides no reason to think that these
procedures cause excruciating pain remotely comparable to that
produced by the second and third lethal injection drugs Oklahoma
intends to use.

															As for more painful procedures, the consensus
was also clear: Midazolam is not FDA-approved for, and is not used
as, a sole drug to maintain unconsciousness. See App. 171
(Lubarsky), 262 (Sasich), 327 (Evans). One might infer from the
fact that midazolam is not used as the sole anesthetic for
more serious procedures that it cannot be used for them. But
drawing such an inference is unnecessary, as petitioners’ experts
invoked sources expressly stating as much. In particular, Dr.
Lubarsky pointed to a survey article that cited four separate
authorities and declared that “[m]idazolam cannot be used alone
. . . to maintain adequate anesthesia.” Reves 318; see
also Stoelting & Hillier 145 (explaining that midzolam is used
for “induction of anesthesia,” and that, “ [i]n combination with
other drugs , [it] may be used for maintenance of anesthesia”
(emphasis added)).

															This evidence was alone sufficient, but if one
wanted further support for these conclusions it was provided by the
Lockett and Wood executions. The procedural flaws that marred the
Lockett execution created the conditions for an unintended (and
grotesque) experiment on midazolam’s efficacy. Due to problems with
the IV line, Lockett was not fully paralyzed after the second and
third drugs were administered. He had, however, been administered
more than enough midazolam to “render an average person
unconscious,” as the District Court found. App. 57. When Lockett
awoke and began to writhe and speak, he demonstrated the critical
difference between midazolam’s ability to render an inmate
unconscious and its ability to maintain the inmate in that state.
The Court insists that Lockett’s execution involved “only 100
milligrams of midazolam,” ante , at 28, but as explained
previously, more is not necessarily better given midazolam’s
ceiling effect.

															The Wood execution is perhaps even more
probative. Despite being given over 750 milligrams of midazolam,
Wood gasped and snorted for nearly two hours. These reactions were,
according to Dr. Lubarsky, inconsistent with Wood being fully
anesthetized, App. 177–178, and belie the claim that a lesser dose
of 500 milligrams would somehow suffice. The Court attempts to
distinguish the Wood execution on the ground that the timing of
Arizona’s administration of midazolam was different. Ante ,
at 28. But as Dr. Lubarsky testified, it did not “matter” whether
in Wood’s execution the “midazolam was introduced all at once or
over . . . multiple doses,” because “[t]he drug has a
sufficient half life that the effect is cumulative.” App. 220; see
also Saari 253 (midazolam’s “elimination half-life ranges from 1.7
to 3.5 h[ours]”).[ 6 ] Nor does
the fact that Wood’s dose of midazolam was paired with
hydromorphone rather than a paralytic and potassium chromide, see ante, at 29, appear to have any relevance—other than that
the use of this analgesic drug may have meant that Wood did not
experience the same degree of searing pain that an inmate executed
under Oklahoma’s protocol may face.

															By contrast, Florida’s use of this same
three-drug protocol in 11 executions, see ante, at 28
(citing Brief for State of Florida as Amicus Curiae 1),
tells us virtually nothing. Although these executions have featured
no obvious mishaps, the key word is “obvious.” Because the protocol
involves the administration of a powerful paralytic, it is, as Drs.
Sasich and Lubarsky explained, impossible to tell whether the
condemned inmate in fact remained unconscious. App. 218, 273; see
also Baze , 553 U. S., at 71 (Stevens, J., concurring in
judgment). Even in these executions, moreover, there have been
indications of the inmates’ possible awareness. See Brief for State
of Alabama et al. as Amici Curiae 9–13 (describing the 11
Flor-ida executions, and noting that some allegedly involved
blinking and other movement after administration of the three
drugs).[ 7 ]

															Finally, none of the State’s “safeguards” for
administering these drugs would seem to mitigate the substantial
risk that midazolam will not work, as the Court contends. See ante, at 21–22. Protections ensuring that officials have
properly secured a viable IV site will not enable midazolam to have
an effect that it is chemically incapable of having. Nor is there
any indication that the State’s monitoring of the inmate’s
consciousness will be able to anticipate whether the inmate will remain unconscious while the second and third drugs are
administered. No one questions whether midazolam can induce
unconsciousness. The problem, as Lockett’s execution vividly
illustrates, is that an unconscious inmate may be awakened by the
pain and respiratory distress caused by administration of the
second and third drugs. At that point, even if it were possible to
determine whether the inmate is conscious—dubious, given the use of
a paralytic—it is already too late. Presumably for these reasons,
the Tenth Circuit characterized the District Court’s reliance on
these procedural mechanisms as “not relevant to its rejection of
[petitioners’] claims regarding the inherent characteristics of
midazolam.” Warner , 776 F. 3d, at 733.

															C

															The Court not only disregards this record
evidence of midazolam’s inadequacy, but also fails to fully
appreciate the procedural posture in which this case arises.
Petitioners have not been accorded a full hearing on the merits of
their claim. They were granted only an abbreviated evidentiary
proceeding that began less than three months after the State issued
its amended execution protocol; they did not even have the
opportunity to present rebuttal evidence after Dr. Evans testified.
They sought a preliminary injunction, and thus were not required to
prove their claim, but only to show that they were likely to
succeed on the merits. See Winter v. Natural Resources
Defense Council, Inc. , 555 U. S. 7, 20 (2008) ; Hill v. McDonough , 547 U. S. 573, 584 (2006)
.

															Perhaps the State could prevail after a full
hearing, though this would require more than Dr. Evans’ unsupported
testimony. At the preliminary injunction stage, however,
petitioners presented compelling evidence suggesting that midazolam
will not work as the State intends. The State, by contrast, offered
absolutely no contrary evidence worth crediting. Petitioners are
thus at the very least likely to prove that, due to
midazolam’s inherent deficiencies, there is a constitutionally
intolerable risk that they will be awake, yet unable to move, while
chemicals known to cause “excruciating pain” course through their
veins. Baze , 553 U. S., at 71 (Stevens, J., concurring
in judgment).

															III

															The Court’s determination that the use of
midazolam poses no objectively intolerable risk of severe pain is
factually wrong. The Court’s conclusion that petitioners’ challenge
also fails because they identified no available alternative means
by which the State may kill them is legally indefensible.

															A

															This Court has long recognized that certain
methods of execution are categorically off-limits. The Court first
confronted an Eighth Amendment challenge to a method of execution
in Wilkerson v. Utah , 99 U. S. 130 (1879) .
Although Wilkerson approved the particular method at
issue—the firing squad—it made clear that “public dissection,”
“burning alive,” and other “punishments of torture . . .
in the same line of unnecessary cruelty, are forbidden by [the
Eighth A]mendment to the Constitution.” Id. , at 135–136.
Eleven years later, in rejecting a challenge to the first proposed
use of the electric chair, the Court again reiterated that “if the
punishment prescribed for an offense against the laws of the State
were manifestly cruel and unusual, as burning at the stake,
crucifixion, breaking on the wheel, or the like, it would be the
duty of the courts to adjudge such penalties to be within the
constitutional prohibition.” In re Kemmler , 136 U. S.
436, 446 (1890) .

															In the more than a century since, the Members of
this Court have often had cause to debate the full scope of the
Eighth Amendment’s prohibition of cruel and unusual punishment.
See, e.g., Furman v. Georgia , 408 U. S. 238
(1972) . But there has been little dispute that it at the very
least precludes the imposition of “barbarous physical punishments.” Rhodes v. Chapman , 452 U. S. 337, 345 (1981) ;
see, e.g. , Solem v. Helm , 463 U. S. 277,
284 (1983) ; id. , at 312–313 (Burger, C. J.,
dissenting); Baze , 553 U. S., at 97–99 (Thomas, J.,
concurring in judgment); Harmelin v. Michigan , 501
U. S. 957, 976 (1991) (opinion of Scalia, J.). Nor has there
been any question that the Amendment prohibits such “inherently
barbaric punishments under all circumstances .” Graham v. Florida , 560 U. S. 48 (2010) (emphasis added).
Simply stated, the “ Eighth Amendment categorically prohibits the infliction of cruel and unusual punishments.” Penry v. Lynaugh , 492 U. S. 302, 330 (1989)
(emphasis added).

															B

															The Court today, however, would convert this
categorical prohibition into a conditional one. A method of
execution that is intolerably painful—even to the point of being
the chemical equivalent of burning alive—will, the Court holds, be
unconstitutional if , and only if, there is a “known and
available alternative” method of execution. Ante, at 15. It
deems Baze to foreclose any argument to the contrary. Ante, at 14. Baze held no such thing. In the first
place, the Court cites only the plurality opinion in Baze as
support for its known-and-available-alternative requirement. See ibid. Even assuming that the Baze plurality set forth
such a requirement—which it did not—none of the Members of the
Court whose concurrences were necessary to sustain the Baze Court’s judgment articulated a similar view. See 553 U. S., at
71–77, 87 (Stevens, J., concurring in judgment); id. , at 94,
99–107 (Thomas, J., concurring in judgment); id., at
107–108, 113 (Breyer, J., concurring in judgment). In general, “the
holding of the Court may be viewed as that position taken by those
Members who concurred in the judgments on the narrowest grounds.” Marks v. United States , 430 U. S. 188, 193
(1977) (internal quotation marks omitted). And as the Court
observes, ante , at 14, n. 2, the opinion of Justice
Thomas, joined by Justice Scalia, took the broadest position with
respect to the degree of intent that state officials must have
inorder to have violated the Eighth Amendment, concluding that only
a method of execution deliberately designedto inflict pain, and not
one simply designed with deliberate indifference to the risk of
severe pain, would be un-constitutional. 553 U. S., at 94
(Thomas, J., concurringin judgment). But this understanding of the
Eighth Amendment’s intent requirement is unrelated to, and thus not
any broader or narrower than, the requirement the Court now divines
from Baze . Because the position that a plaintiff challenging
a method of execution under the Eighth Amendment must prove the
availability of an alternative means of execution did not
“represent the views of a majority of the Court,” it was not the
holding of the Baze Court. CTS Corp. v. Dynamics
Corp. of America , 481 U. S. 69, 81 (1987) .

															In any event, even the Baze plurality
opinion provides no support for the Court’s proposition. To be
sure, that opinion contains the following sentence: “[The
condemned] must show that the risk is substantial when compared to
the known and available alternatives.” 553 U. S., at 61. But
the meaning of that key sentence and the limits of the requirement
it imposed are made clear by the sentence directly preceding it: “A
stay of execution may not be granted on grounds such as those
asserted here unless the condemned prisoner establishes that
the State’s lethal injection protocol creates a demonstrated risk
of severe pain.” Ibid. (emphasis added). In Baze , the
very premise of the petitioners’ Eighth Amendment claim was that
they had “identified a significant risk of harm [in Kentucky’s
protocol] that [could] be eliminated by adopting alternative
procedures.” Id. , at 51. Their basic theory was that even if
the risk of pain was only, say, 25%, that risk would be objectively
intolerable if there was an obvious alternative that would reduce
the risk to 5%. See Brief for Petitioners in Baze v. Rees , O. T. 2007, No. 07–5439, p. 29 (“In view of
the severity of the pain risked and the ease with which it could be
avoided, Petitioners should not have been required to show a high
likelihood that they would suffer such pain
. . . ”). Thus, the “grounds . . .
asserted” for relief in Baze were that the State’s protocol
was intolerably risky given the alternative procedures the State
could have employed.

															Addressing this claim, the Baze plurality
clarified that “a condemned prisoner cannot successfully challenge
a State’s method of execution merely by showing a slightly or
marginally safer alternative,” 553 U. S., at 51; instead, to
succeed in a challenge of this type, the comparative risk must be
“substantial,” id. , at 61. Nowhere did the plurality suggest
that all challenges to a State’s method of execution would
require this sort of comparative-risk analysis. Recognizing the
relevance of available alternatives is not at all the same as
concluding that their absence precludes a claimant from showing
that a chosen method carries objectively intolerable risks. If, for
example, prison officials chose a method of execution that has a
99% chance of causing lingering and excruciating pain, certainly
that risk would be objectively intolerable whether or not the
officials ignored other methods in making this choice. Irrespective
of the existence of alternatives, there are some risks “so grave
that it violates contemporary standards of decency to expose anyone unwillingly to” them. Helling v. McKinney , 509 U. S. 25, 36 (1993) (emphasis in
original).

															That the Baze plurality’s statement
regarding a condemned inmate’s ability to point to an available
alternative means of execution pertained only to challenges
premised on the existence of such alternatives is further evidenced
by the opinion’s failure to distinguish or even mention the Court’s
unanimous decision in Hill v. McDonough , 547
U. S. 573 . Hill held that a §1983 plaintiff
challenging a State’s method of execution need not “identif[y] an
alternative, authorized method of execution.” Id. , at 582.
True, as the Court notes, ante , at 14–15, Hill did so
in the context of addressing §1983’s pleading standard, rejecting
the proposed alternative-means requirement because the Court saw no
basis for the “[i]mposition of heightened pleading requirements.”
547 U. S., at 582. But that only confirms that the Court in Hill did not view the availability of an alternative means
of execution as an element of an Eighth Amendment claim: If it had,
then requiring the plaintiff to plead this element would not have
meant imposing a heightened standard at all, but rather would have
been entirely consistent with “traditional pleading requirements.” Ibid. ; see Ashcroft v. Iqbal , 556 U. S.
662, 678 (2009) . The Baze plurality opinion should not be
understood to have so carelessly tossed aside Hill ’s
underlying premise less than two years later.

															C

															In reengineering Baze to support its
newfound rule, the Court appears to rely on a flawed syllogism. If
the death penalty is constitutional, the Court reasons, then there
must be a means of accomplishing it, and thus some available method
of execution must be constitutional. See ante , at 4, 15–16.
But even accepting that the death penalty is, in the abstract,
consistent with evolving standards of decency, but see ante ,
p. ___ (Breyer, J., dissenting), the Court’s conclusion does
not follow. The constitutionality of the death penalty may inform
our conception of the degree of pain that would render a particular
method of imposing it unconstitutional. See Baze , 553
U. S., at 47 (plurality opinion) (because “[s]ome risk of pain
is inherent in any method of execution,” “[i]t is clear
. . . the Constitution does not demand the avoidance of
all risk of pain”). But a method of execution that is “barbarous,” Rhodes , 452 U. S., at 345, or “involve[s] torture or a
lingering death,” Kemmler , 136 U. S., at 447, does not
become less so just because it is the only method currently
available to a State. If all available means of conducting an
execution constitute cruel and unusual punishment, then conducting
the execution will constitute cruel and usual punishment. Nothing
compels a State to perform an execution. It does not get a
constitutional free pass simply because it desires to deliver the
ultimate penalty; its ends do not justify any and all means. If a
State wishes to carry out an execution, it must do so subject to
the constraints that our Constitution imposes on it, including the
obligation to ensure that its chosen method is not cruel and
unusual. Certainly the condemned has no duty to devise or pick a
constitutional instrument of his or her own death.

															For these reasons, the Court’s
available-alternative requirement leads to patently absurd
consequences. Petitioners contend that Oklahoma’s current protocol
is a barbarous method of punishment—the chemical equivalent of
being burned alive. But under the Court’s new rule, it would not
matter whether the State intended to use midazolam, or instead to
have petitioners drawn and quartered, slowly tortured to death, or
actually burned at the stake: because petitioners failed to prove
the availability of sodium thiopental or pentobarbital, the State
could execute them using whatever means it designated. But see Baze , 553 U. S., at 101–102 (Thomas, J., concurring in
judgment) (“It strains credulity to suggest that the defining
characteristic of burning at the stake, disemboweling, drawing and
quartering, beheading, and the like was that they involved risks of
pain that could be eliminated by using alternative methods of
execution”).[ 8 ] The Eighth
Amendment cannot possibly countenance such a result.

															D

															In concocting this additional requirement, the
Court is motivated by a desire to preserve States’ ability to
conduct executions in the face of changing circumstances. See ante, at 4–6, 27–28. It is true, as the Court details, that
States have faced “practical obstacle[s]” to obtaining lethal
injection drugs since Baze was decided. Ante , at 4.
One study concluded that recent years have seen States change their
protocols “with a frequency that is unprecedented among execution
methods in this country’s history.” Denno, Lethal Injection Chaos
Post- Baze , 102 Geo. L. J. 1331, 1335 (2014).

															But why such developments compel the Court’s
imposition of further burdens on those facing execution is a
mystery. Petitioners here had no part in creating the shortage of
execution drugs; it is odd to punish them for the actions of
pharmaceutical companies and others who seek to disassociate
themselves from the death penalty—actions which are, of course,
wholly lawful. Nor, certainly, should these rapidly changing
circumstances give us any greater confidence that the execution
methods ultimately selected will be sufficiently humane to satisfy
the Eighth Amendment. Quite the contrary. The execution protocols
States hurriedly devise as they scramble to locate new and untested
drugs, see supra, at 3, are all the more likely to be cruel
and unusual—presumably, these drugs would have been the States’
first choice were they in fact more effective. But see Denno, The
Lethal Injection Quandry: How Medicine Has Dismantled the Death
Penalty, 76 Ford. L. Rev. 49, 65–79 (2007) (describing the
hurried and unreasoned process by which States first adopted the
original three-drug protocol). Courts’ review of execution methods
should be more, not less, searching when States are engaged in what
is in effect human experimentation.

															It is also worth noting that some condemned
inmates may read the Court’s surreal requirement that they
iden-tify the means of their death as an invitation to propose
methods of executions less consistent with modern sensibilities.
Petitioners here failed to meet the Court’s new test because of
their assumption that the alternative drugs to which they pointed,
pentobarbital and sodium thiopental, were available to the State.
See ante, at 13–14. This was perhaps a reasonable
assumption, especially given that neighboring Texas and Missouri
still to this day continue to use pentobarbital in executions. See
The Death Penalty Institute, Execution List 2015, online at
www.deathpenaltyinfo.org/execution-list-2015 (as visited June 26,
2015, and available in the Clerk of the Court’s case file).

															In the future, however, condemned inmates might
well decline to accept States’ current reliance on lethal
injection. In particular, some inmates may suggest the firing squad
as an alternative. Since the 1920’s, only Utah has utilized this
method of execution. See S. Banner, The Death Penalty 203 (2002);
Johnson, Double Murderer Executed by Firing Squad in Utah,
N. Y. Times, June 19, 2010, p. A12. But there is evidence to
suggest that the firing squad is significantly more reliable than
other methods, including lethal injection using the various
combinations of drugs thus far developed. See A. Sarat, Gruesome
Spectacles: Botched Executions and America’s Death Penalty, App. A,
p. 177 (2014) (calculating that while 7.12% of the 1,054
executions by lethal injection between 1900 and 2010 were
“botched,” none of the 34 executions by firing squad had been).
Just as important, there is some reason to think that it is
relatively quick and painless. See Banner, supra , at
203.

															Certainly, use of the firing squad could be seen
as a devolution to a more primitive era. See Wood v. Ryan , 759 F. 3d 1076, 1103 (CA9 2014) (Kozinski,
C. J., dissenting from denial of rehearing en banc). That is
not to say, of course, that it would therefore be unconstitutional.
But lethal injection represents just the latest iteration of the
States’ centuries-long search for “neat and non-disfiguring
homicidal methods.” C. Brandon, The Electric Chair: An Unnatural
American History 39 (1999) (quoting Editorial, New York Herald,
Aug. 10, 1884); see generally Banner, supra , at 169–207. A
return to the firing squad—and the blood and physical violence that
comes with it—is a step in the opposite direction. And some might
argue that the visible brutality of such a death could conceivably
give rise to its own Eighth Amendment concerns. See Campbell v. Wood , 511 U. S. 1119 –1123 (1994) (Blackmun, J.,
dissenting from denial of stay of execution and certiorari); Glass v. Louisiana , 471 U. S. 1080, 1085 (1985)
(Brennan, J., dissenting from denial of certiorari). At least from
a condemned inmate’s perspective, however, such visible yet
relatively painless violence may be vastly preferable to an
excruciatingly painful death hidden behind a veneer of medication.
The States may well be reluctant to pull back the curtain for fear
of how the rest of us might react to what we see. But we deserve to
know the price of our collective comfort before we blindly allow a
State to make condemned inmates pay it in our names.

															*  *  *

															“By protecting even those convicted of heinous
crimes, the Eighth Amendment reaffirms the duty of the government
to respect the dignity of all persons.” Roper v. Simmons , 543 U. S. 551, 560 (2005) . Today, however,
the Court absolves the State of Oklahoma of this duty. It does so
by misconstruing and ignoring the record evidence regarding the
constitutional insufficiency of midazolam as a sedative in a
three-drug lethal injection cocktail, and by imposing a wholly
unprecedented obligation on the condemned inmate to identify an
available means for his or her own execution. The contortions
necessary to save this particular lethal injection protocol are not
worth the price. I dissent. Notes 1 Hydromorphone is a
powerful analgesic similar to morphine or heroin. See R. Stoelting
& S. Hillier, Pharmacology & Physiology in Anesthetic
Practice 87–88 (4th ed. 2006) (Stoelting &
Hillier). 2 The Court disputes this
characterization of Dr. Evans’ testimony, insisting that Dr. Evans
accurately described midazolam’s properties in the written report
he submitted prior to the hearing below, and suggesting that
petitioners’ experts would have “dispute[d] the accuracy” of this
explanation were it in fact wrong. Ante, at 25. But Dr.
Evans’ written report simply said midazolam “produces different
levels of central nervous system (CNS) depression through binding
to [GABA] receptors.” App. 293. That much is true. Only after Drs.
Sasich and Lubarsky testified did Dr. Evans further claim that
midazolam produced CNS depression by binding to GABA receptors and thereby preventing GABA itself from binding to those
receptors —which is where he went wrong. The Court’s further
observation that Dr. Lubarsky also used a variant on the word
“inhibiting” in his testimony—in saying that GABA’s
“ ‘ inhibition of brain activity is accentuated by
midazolam,’ ” ante , at 25 (quoting App. 232)—is
completely nonresponsive. “Inhibiting” is a perfectly good word;
the problem here is the manner in which Dr. Evans used it in a
sentence. 3 For all the reasons
discussed in Part II–B, infra , and contrary to the Court’s
claim, see ante , at 20, n. 4, there are good reasons to
doubt that 500 milligrams of midazolam will, in light of the
ceiling effect, inevitably kill someone. The closest the record
comes to providing support for this contention is the fleeting
mention in the FDA-approved product label that one of the possible
consequences of midazolam overdosage is coma. See ante, at
21, n. 5. Moreover, even if this amount of the drug could kill
some people in “under an hour,” ante, at 20, n. 4, that
would not necessarily mean that the condemned would be insensate
during the approximately 10 minutes it takes for the paralytic and
potassium chloride to do their work. 4 Dr. Sasich, as the Court
emphasizes, was perhaps more hesitant to reach definitive
conclusions, see ante , at 19–21, and n. 5, 23–24, but
the statements highlighted by the Court largely reflect his
(truthful) observations that no testing has been done at doses of
500 milligrams, and his inability to pinpoint the precise dose at
which midazolam's ceiling effect might be reached. Dr. Sasich did
not, as the Court suggests, claim that midazolam’s ceiling effect
would be reached only after a person became fully insensate to
pain. Ante , at 24. What Dr. Sasich actually said was: “As
the dose increases, the benzodiazepines are expected to produce
sedation, amnesia, and finally lack of response to stimuli such as
pain (unconsciousness).” App. 243. In context, it is clear that Dr.
Sasich was simply explaining that a drug like midazolam can be used
to induce unconsciousness—an issue that was and remains
undisputed—not that it could render an inmate sufficiently
unconscious to resist all noxious stimuli. Indeed, it was
midazolam’s possible inability to serve the latter function that
led Dr. Sasich to conclude that “it is not an appropriate drug to
use when administering a paralytic followed by potassium chloride.” Id., at 248. 5 The Court claims that the
District Court could have properly disregarded Dr. Lubarsky’s
testimony because he asserted that a protocol with sodium
thiopental would “ ‘produce egregious harm and
suffering.’ ” Ante , at 24, n. 6 (quoting App.
227). But Dr. Lubarsky did not testify that, like midazolam, sodium
thiopental would not render an inmate fully insensate even if
properly administered; rather, he simply observed that he had
previously contended that protocols using that drug were
ineffective. See App. 227. He was presumably referring to an
article he coauthored that found many condemned inmates were not
being successfully delivered the dose of sodium thiopental
necessary to fully anesthetize them. See Baze , 553
U. S., at 67 (Alito, J., concurring) (discussing this
study). 6 The Court asserts that
the State refuted these contentions, pointing to Dr. Evans’
testimony that 750 milligrams of the drug “might not have the
effect that was sought” if administered over an hour. Tr. 667; see ante, at 28, n. 6. But as has been the theme here, this
pronouncement was entirely unsupported, and appears to be
contradicted by the secondary sources cited by petitioners’
experts. 7 The fact that courts in
Florida have approved the use of midazolam in this fashion is
arguably slightly more relevant, though it is worth noting that the
majority of these decisions were handed down before the Lockett and
Wood executions, and that some relied, as here, on Dr. Evans’
testimony. See ante , at 17. 8 The Court protests that
its holding does not extend so far, deriding this description of
the logical implications of its legal rule as “simply not true” and
“outlandish rhetoric.” Ante , at 29. But presumably when the
Court imposes a “requirement o[n] all Eighth Amendment
method-of-execution claims,” that requirement in fact applies to
“ all ” methods of execution, without exception. Ante, at 1 (emphasis added).

Summary: The Supreme Court ruled that death row prisoners in Oklahoma failed to prove that the state's lethal injection protocol, which uses midazolam as the first drug, violates the Eighth Amendment by causing severe pain. The Court affirmed the lower courts' findings that the prisoners did not identify an available alternative method of execution with a lesser risk of pain and that midazolam does not pose a substantial risk of severe pain when used in high doses.