Arthur v. Dunn , 197 L. Ed. 2d 225 ( 2017 )

Cite as: 580 U. S. ____ (2017) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
THOMAS D. ARTHUR v. JEFFERSON S. DUNN,
COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 16–602. Decided February 21, 2017
The motion of Certain Medical Professionals and Medi-
cal Ethicists for leave to file a brief as amici curiae is
granted. The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
dissenting from the denial of certiorari.
Nearly two years ago in Glossip v. Gross, 576 U. S. ___
(2015), the Court issued a macabre challenge. In order to
successfully attack a State’s method of execution as cruel
and unusual under the Eighth Amendment, a condemned
prisoner must not only prove that the State’s chosen
method risks severe pain, but must also propose a “known
and available” alternative method for his own execution.
Id., at ___, ___ (slip op., at 13, 15).
Petitioner Thomas Arthur, a prisoner on Alabama’s
death row, has met this challenge. He has amassed signif-
icant evidence that Alabama’s current lethal-injection
protocol will result in intolerable and needless agony, and
he has proposed an alternative—death by firing squad.
The Court of Appeals, without considering any of the
evidence regarding the risk posed by the current protocol,
denied Arthur’s claim because Alabama law does not
expressly permit execution by firing squad, and so it can-
not be a “known and available” alternative under Glossip.
Because this decision permits States to immunize their
methods of execution—no matter how cruel or how unu-
sual—from judicial review and thus permits state law to
subvert the Federal Constitution, I would grant certiorari
2 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
and reverse. I dissent from my colleagues’ decision not to
do so.
I
A
Execution by lethal injection is generally accomplished
through serial administration of three drugs. First, a fast-
acting sedative such as sodium thiopental induces “a deep,
comalike unconsciousness.” Baze v. Rees, 553 U.S. 35, 44
(2008) (plurality opinion). Second, a paralytic agent—
most often pancuronium bromide—“inhibits all muscular-
skeletal movements and, by paralyzing the diaphragm,
stops respiration.” Ibid. Third, potassium chloride in-
duces fatal cardiac arrest. Ibid.
The first drug is critical; without it, the prisoner faces
the unadulterated agony of the second and third drugs.
The second drug causes “an extremely painful sensation of
crushing and suffocation,” see Denno, When Legislatures
Delegate Death: The Troubling Paradox Behind State
Uses of Electrocution and Lethal Injection and What It
Says About Us, 63 Ohio St. L. J. 63, 109, n. 321 (2002); but
paralyzes the prisoner so as to “mas[k] any outward sign
of distress,” thus serving States’ interest “ ‘in preserving
the dignity of the procedure,’ ” Baze, 553 U.S., at 71, 73
(Stevens, J., concurring in judgment). And the third drug
causes an “excruciating burning sensation” that is
“equivalent to the sensation of a hot poker being inserted
into the arm” and traveling “with the chemical up the
prisoner’s arm and . . . across his chest until it reaches his
heart.” Denno, supra, at 109, n. 321.
Execution absent an adequate sedative thus produces a
nightmarish death: The condemned prisoner is conscious
but entirely paralyzed, unable to move or scream his
agony, as he suffers “what may well be the chemical
equivalent of being burned at the stake.” Glossip, 576
U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 2).
Cite as: 580 U. S. ____ (2017) 3
SOTOMAYOR, J., dissenting
B
For many years, the barbiturate sodium thiopental
seemed up to this task.1 In 2009, however, the sole Ameri-
can manufacturer of sodium thiopental suspended domes-
tic production and later left the market altogether. Id., at
___–___ (majority opinion) (slip op., at 4–5). States then
began to use another barbiturate, pentobarbital. Id., at
___ (slip op., at 5). But in 2013, it also became unavail-
able. Id., at ___–___ (slip op., at 5–6). Only then did States
turn to midazolam, the drug at the center of this case.
Midazolam, like Valium and Xanax, belongs to a class of
medicines known as benzodiazepines and has some anes-
thetic effect. Id., at ___ (SOTOMAYOR, J., dissenting) (slip
op., at 5). Generally, anesthetics can cause a level of
sedation and depression of electrical brain activity suffi-
cient to block all sensation, including pain. App. to Pet.
for Cert. 283a–290a. But it is not clear that midazolam
adequately serves this purpose. This is because midazo-
lam, unlike barbiturates such as pentobarbital, has no
analgesic—pain-relieving—effects. Id., at 307a; see also
Glossip, 576 U. S., at ___ (SOTOMAYOR, J., dissenting) (slip
op., at 5). Thus, “for midazolam to maintain unconscious-
ness through application of a particular stimulus, it would
need to depress electrical activity to a deeper level than
would be required of, for example, pentobarbital.” App. to
——————
1 We examined the constitutionality of lethal injection in Baze v. Rees,
553 U.S. 35 (2008). There, the parties did not dispute that “proper
administration of . . . sodium thiopental . . . eliminates any meaningful
risk that a prisoner would experience pain” and results in a humane
death. Id., at 49 (plurality opinion). The petitioners nonetheless
challenged Kentucky’s three-drug protocol on the ground that, if prison
executioners failed to follow the mandated procedures, an unconstitu-
tional risk of significant pain would result. Ibid. A plurality of the
Court concluded that “petitioners ha[d] not carried their burden of
showing that the risk of pain from maladministration of a concededly
humane lethal injection protocol” would violate the prohibition on cruel
and unusual punishments. Id., at 41.
4 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
Pet. for Cert. 307a.2 Although it can be used to render
individuals unconscious, midazolam is not used on its own
to maintain anesthesia—complete obliviousness to physi-
cal sensation—in surgical procedures, and indeed, the
Food and Drug Administration has not approved the drug
for this purpose. Glossip, 576 U. S., at ___ (SOTOMAYOR,
J., dissenting) (slip op., at 5).
Like the experts in Glossip, the experts in this case
agree that midazolam is subject to a ceiling effect, which
means that there is a point at which increasing the dose of
the drug does not result in any greater effect. Ibid. The
main dispute with respect to midazolam relates to how
this ceiling effect operates—if the ceiling on midazolam’s
sedative effect is reached before complete unconsciousness
can be achieved, it may be incapable of keeping individu-
als insensate to the extreme pain and discomfort associated
with administration of the second and third drugs in
lethal-injection protocols. Ibid.
After the horrific execution of Clayton Lockett, who,
notwithstanding administration of midazolam, awoke
during his execution and appeared to be in great pain, we
agreed to hear the case of death row inmates seeking to
avoid the same fate. In Glossip, these inmates alleged
that because midazolam is incapable of rendering prison-
ers unconscious and insensate to pain during lethal injec-
tion, Oklahoma’s intended use of the drug in their execu-
——————
2 Because “midazolam is not an analgesic drug, any painful stimulus
applied to an inmate will generate and transmit full intensity pain
signals to the brain without interference.” App. to Pet. for Cert. 309a.
Arthur’s expert witness provides “a rough analogy”:
“[ I ]f being sedated is like being asleep, analgesia is like wearing
earplugs. If two people are sleeping equally deeply, but only one is
wearing earplugs, it will be much easier to shout and wake the person
who is not wearing earplugs. If two people are sedated to equivalent
levels of electrical brain activity, but only one has analgesia, the person
sedated without analgesia will be much more easily aroused to con-
sciousness by the application of pain.” Ibid.
Cite as: 580 U. S. ____ (2017) 5
SOTOMAYOR, J., dissenting
tions would violate the Eighth Amendment. The Court
rejected this claim for two reasons.
First, the Court found that the District Court had not
clearly erred in determining that “midazolam is highly
likely to render a person unable to feel pain during an
execution.” Id., at ___ (slip op., at 16). Second, the Court
held that the petitioners had failed to satisfy the novel
requirement of pleading and proving a “known and avail-
able alternative” method of execution. Id., at ___ (slip op.,
at 15).
Post-Glossip, in order to prevail in an Eighth Amend-
ment challenge to a State’s method of execution, prisoners
first must prove the State’s current method “entails a
substantial risk of severe pain,” id., at ___ (slip op., at 2),
and second, must “identify a known and available alterna-
tive method of execution that entails a lesser risk of pain,”
id., at ___ (slip op., at 1).
II
This case centers on whether Thomas Arthur has met
these requirements with respect to Alabama’s lethal-
injection protocol.
A
Alabama adopted lethal injection as its default method
of execution in 2002. Ala. Code §15–18–82.1(a) (2011); see
also Ex parte Borden, 60 So. 3d 940, 941 (Ala. 2007). The
State’s capital punishment statute delegates the task of
prescribing the drugs necessary to compound a lethal
injection to the Department of Corrections. §15–18–
82.1(f ). Consistent with the practice in other States fol-
lowing the national shortage of sodium thiopental and
pentobarbital, the department has adopted a protocol
involving the same three drugs considered in Glossip. See
Brooks v. Warden, 810 F.3d 812, 823 (CA11 2016).
Perhaps anticipating constitutional challenges, Ala-
6 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
bama’s legislature enacted a contingency plan: The statute
provides that “[i]f electrocution or lethal injection is held
to be unconstitutional . . . all persons sentenced to death
for a capital crime shall be executed by any constitutional
method of execution.” §15–18–82.1(c).
B
Thomas Douglas Arthur killed his paramour’s husband
in 1982. 840 F.3d 1268, 1272–1273 (CA11 2016). Over
the next decade, two juries found Arthur guilty of murder,
and each time, Arthur’s conviction was overturned on
appeal. Ibid. After a third trial in 1992, Arthur was
convicted and sentenced to death. Ibid. Since then, Ar-
thur has been scheduled to die on six separate occasions,
and each time, his execution was stayed. Id., at 1275, n. 2.
After 34 years of legal challenges, Arthur has accepted
that he will die for his crimes. He now challenges only
how the State will be permitted to kill him.
Arthur asserted two distinct claims in the District
Court. First, Arthur asserted a facial challenge, arguing
that midazolam is generally incapable of performing as
intended during Alabama’s three-drug lethal-injection
procedure. Second, Arthur asserted an as-applied chal-
lenge, arguing that because of his individual health at-
tributes, midazolam creates a substantial risk of severe
pain for him during the procedure.
The District Court considered these two claims sepa-
rately. With respect to the facial challenge, the District
Court ordered bifurcated proceedings, with the first hear-
ing limited to the availability of a feasible alternative
method of execution. App. to Pet. for Cert. 189a, and n. 2.
Arthur’s initial complaint proposed a single dose either of
pentobarbital or sodium thiopental rather than a three-
drug protocol, but the District Court found that those
methods were unavailable given the elimination of both
drugs from the domestic market. Id., at 203a–205a.
 Cite as: 580 U. S. ____ (2017) 7
SOTOMAYOR, J., dissenting
Arthur then moved to amend his complaint to allege the
firing squad as an alternative method of execution. The
District Court denied the motion, holding that “execution
by firing squad is not permitted by statute and, therefore,
is not a method of execution that could be considered
either feasible or readily implemented by Alabama at this
time.” Id., at 241a. Because Arthur’s claim failed on this
ground, the court never considered Arthur’s evidence with
respect to midazolam, despite later observing that it was
“impressive.” Id., at 166a.
In a separate order, the District Court considered Ar-
thur’s as-applied challenge. Arthur alleged, based on the
expert opinion of Dr. Jack Strader, that “his cardiovascu-
lar issues, combined with his age and emotional makeup,
create a constitutionally unacceptable risk of pain that
will result in a violation of the Eighth Amendment if he is
executed under the [midazolam] protocol.” Id., at 151a.
Echoing its rationale with respect to Arthur’s facial chal-
lenge, the District Court found that Arthur failed to prove
the existence of a feasible, readily available alternative.
The court then turned to the question it had avoided in
the facial challenge: whether Alabama’s lethal-injection
protocol created a risk of serious illness or needless suffer-
ing. But because the District Court considered the ques-
tion as part of Arthur’s as-applied challenge, it focused on
the protocol as applied to Arthur’s personal physical condi-
tion. The court rejected Dr. Strader’s opinion that the
dose of midazolam required by Alabama’s protocol “will
likely induce a rapid and dangerous reduction in blood
pressure more quickly than it results in sedation,” and
that during this time gap, Arthur—whom he believed to
suffer from heart disease—would suffer a painful heart
attack. Id., at 169a. Because Dr. Strader’s experience was
limited to clinical doses of midazolam, which typically
range from 2 to 5 mg, the court concluded that he had no
basis to extrapolate his experience to non-clinical, lethal
8 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
doses, such as the 500-mg bolus required by Alabama’s
lethal-injection protocol. Id., at 177a.
The District Court expressly refused to consider the
expert opinions that Arthur proffered as part of his facial
challenge, noting that they “are untested in court, due to
Arthur’s inability to provide a[n alternative] remedy in his
facial, and now as-applied, challenges.” Id., at 167a, n. 16.
The District Court therefore concluded that Arthur
failed to meet the Glossip standard and entered judgment
in favor of the State. App. to Pet. for Cert. 238a.
C
The Eleventh Circuit affirmed. In a 111-page slip opin-
ion issued the day before Arthur’s scheduled execution,
the court first found that “Arthur never showed Alabama’s
current lethal injection protocol, per se or as applied to
him, violates the Constitution.” 840 F.3d, at 1315. The
court based this finding on Arthur’s failure to “satisfy the
first [Glossip] prong as to midazolam” as part of his as-
applied challenge, ibid., and the fact that this Court “up-
held the midazolam-based execution protocol” in Glossip,
840 F.3d, at 1315. Like the District Court, the Eleventh
Circuit never considered the evidence Arthur introduced in
support of his facial challenge to the protocol. Then, “[a]s
an alternative and independent ground,” ibid., the Court
of Appeals found that the firing squad is not an available
alternative because that method is “beyond [the Depart-
ment of Corrections’] statutory authority,” id., at 1320.
Finally, and as yet another independent ground for deny-
ing relief, the court held Arthur’s motion regarding the
firing squad barred by the doctrine of laches. Ibid., n. 35.
According to the Eleventh Circuit, the “known and avail-
able” alternative requirement was made clear in Baze—
not Glossip—and because Arthur failed to amend his
complaint in 2008 when Baze was decided, his claim was
barred by laches.
Cite as: 580 U. S. ____ (2017) 9
SOTOMAYOR, J., dissenting
On the day of his scheduled execution, Arthur filed a
petition for certiorari and an application to stay his execu-
tion. The Court granted the stay, 580 U. S. ___ (2016), but
now denies certiorari.
III
A
The decision below permits a State, by statute, to bar a
death-row inmate from vindicating a right guaranteed by
the Eighth Amendment. Under this view, even if a pris-
oner can prove that the State plans to kill him in an intol-
erably cruel manner, and even if he can prove that there is
a feasible alternative, all a State has to do to execute him
through an unconstitutional method is to pass a statute
declining to authorize any alternative method. This can-
not be right.
To begin with, it contradicts the very decisions it pur-
ports to follow—Baze and Glossip. Glossip based its
“known and available alternative” requirement on the
plurality opinion in Baze. Baze, in turn, states that “[t]o
qualify, the alternative procedure must be feasible, readily
implemented, and in fact significantly reduce a substan-
tial risk of severe pain.” 553 U.S., at 52 (plurality opin-
ion). The Court did not mention—or even imply—that a
State must authorize the alternative by statute. To the
contrary, Baze held that “[i]f a State refuses to adopt such
an alternative in the face of these documented ad-
vantages,” its “refusal to change its method can be viewed
as ‘cruel and unusual’ under the Eighth Amendment.”
Ibid. (emphasis added). The decision below turns this
language on its head, holding that if the State refuses to
adopt the alternative legislatively, the inquiry ends. That
is an alarming misreading of Baze.
Even more troubling, by conditioning federal constitu-
tional rights on the operation of state statutes, the deci-
sion below contravenes basic constitutional principles.
10 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
The Constitution is the “supreme law of the land”—
irrespective of contrary state laws. Art. VI, cl. 2. And for
more than two centuries it has been axiomatic that this
Court—not state courts or legislatures—is the final arbiter
of the Federal Constitution. See Marbury v. Madison, 1
Cranch 137, 177 (1803). Acting within our exclusive
“province and duty” to “say what the law is,” ibid., we
have interpreted the Eighth Amendment to entitle prison-
ers to relief when they succeed in proving that a State’s
chosen method of execution poses a substantial risk of
severe pain and that a constitutional alternative is
“known and available,” Glossip, 576 U. S., at ___–___ (slip
op., at 1–2). The States have no power to override this
constitutional guarantee. While States are free to define
and punish crimes, “state laws respecting crimes, punish-
ments, and criminal procedure are . . . subject to the over-
riding provisions of the United States Constitution.”
Payne v. Tennessee, 501 U.S. 808, 824 (1991).
Equally untenable are the differing interpretations of
the Eighth Amendment that would result from the Elev-
enth Circuit’s rule. Under the Eleventh Circuit’s view,
whether an inmate who will die in an intolerably cruel
manner can obtain relief under Glossip depends not on the
Constitution but on vagaries of state law. The outcome of
this case, for instance, would turn on whether Arthur had
been sentenced in Oklahoma, where state law expressly
permits the firing squad, see Okla. Stat., Tit. 22, §1014
(Supp. 2016), rather than in Alabama, which—according
to the Eleventh Circuit3—does not, see Ala. Code §15–18–
——————
3 I question the Eleventh Circuit’s conclusion that the statute does
not authorize the firing squad as an available means of execution. In
my view, the Alabama statute unambiguously reads as a codification of
Glossip. If either of the specified methods—lethal injection or electrocu-
tion—is declared unconstitutional, the statute authorizes the State to
execute prisoners by “any constitutional method of execution.” Ala.
Code §15–18–82.1(c) (2016) (emphasis added). The state statute
Cite as: 580 U. S. ____ (2017) 11
SOTOMAYOR, J., dissenting
82.1. But since the very beginning of our Nation, we have
emphasized the “necessity of uniformity” in constitutional
interpretation “throughout the whole United States, upon
all subjects within the purview of the constitution.” Mar-
tin v. Hunter’s Lessee, 1 Wheat 304, 347–348 (1816) (em-
phasis deleted). Nowhere is the need for uniformity more
pressing than the rules governing States’ imposition of
death.
B
The Eleventh Circuit’s alternative holdings are unavailing.
First, the court erroneously concluded that Arthur failed
to carry his burden on the first Glossip requirement—
proving that Alabama’s midazolam-centered protocol poses
a substantial risk of severe pain. The court used the
District Court’s finding that Arthur failed to meet this
prong with respect to his as-applied challenge to hold that
Arthur’s facial challenge likewise failed. But it is undis-
puted that Arthur put forth “impressive” evidence to
support his facial challenge that neither the District Court
nor the Court of Appeals considered. This evidence in-
cluded the expert testimony of Dr. Alan Kaye, chairman of
the Department of Anesthesiology at Louisiana State
University’s Health Sciences Center, who found the dose
of midazolam prescribed in Alabama’s protocol insufficient
to “cure . . . the fundamental unsuitability of midazolam as
the first drug in [Alabama’s lethal-injection] protocol.”
App. to Pet. for Cert. 302a (emphasis added). Dr. Kaye
——————
thus permits exactly what the Court required in Glossip—if a con-
demned prisoner can prove that the lethal-injection protocol presents
an unconstitutional risk of needless suffering, he may propose an
alternative, constitutional means of execution, which may include the
firing squad. Even assuming, however, that the Eleventh Circuit
properly interpreted Alabama’s statute, the question remains whether
States may legislatively determine what the Eighth Amendment
requires or prohibits. That question is worthy of our review.
12 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
concluded that “the chemical properties of midazolam
limit its ability to depress electrical activity in the brain.
The lack of another chemical property—analgesia—
renders midazolam incapable of maintaining even that
limited level of depressed electrical activity under the
undiminished pain of the second and third lethal injection
drugs.” Id., at 311a.
The court next read Glossip as categorically “uph[olding]
the midazolam-based execution protocol.” 840 F.3d, at
1315. Glossip did no such thing. The majority opinion in
Glossip concluded that, based on the facts presented in
that case, “[t]he District Court did not commit clear error
when it found that midazolam is highly likely to render a
person unable to feel pain during an execution.” 576 U. S.,
at ____ (slip op., at 16). The opinion made no determina-
tion whether midazolam-centered lethal injection repre-
sents a constitutional method of execution.
Finally, the court’s laches finding faults Arthur for
failing to act immediately after Baze, which, according to
the panel, “made clear in 2008 . . . that a petitioner-inmate
had the burden to show that a proffered alternative was
‘feasible, readily implemented, and in fact significantly
reduced a substantial risk of pain.’ ” 840 F.3d, at 1320,
n. 35 (quoting Baze, 553 U.S., at 41). But the District
Court in this case—not to mention at least four Justices of
this Court, see Glossip, 576 U. S., at ___–___ (SOTOMAYOR,
J., dissenting) (slip op., at 24–27)—did not read Baze as
requiring an alternative. See Record in Arthur v. Myers,
No. 2:11–cv–438 (MD Ala.), Doc. 195, p. 11 (“[T]he court
does not accept the State’s argument that [a known and
available alternative method of execution] is a specific
pleading requirement set forth by Baze that must be
properly alleged before a case can survive a motion to
dismiss”). Arthur filed a statement within 14 days of our
decision in Glossip informing the District Court of his
belief that our decision would impact his case, see id., Doc.
Cite as: 580 U. S. ____ (2017) 13
SOTOMAYOR, J., dissenting
245, and moved to amend his complaint a few weeks later,
see id., Doc. 256.
In sum, the Eleventh Circuit’s opinion rests on quick-
sand foundations and flouts the Constitution, as well as
the Court’s decisions in Baze and Glossip. These errors
alone counsel in favor of certiorari.
IV
The decision below is all the more troubling because it
would put an end to an ongoing national conversation—
between the legislatures and the courts—around the
methods of execution the Constitution tolerates. The
meaning of the Eighth Amendment’s prohibition on cruel
and unusual punishments “is determined not by the
standards that prevailed when the Eighth Amendment
was adopted in 1791” but instead derives from “ ‘the evolv-
ing standards of decency that mark the progress of a
maturing society.’ ” Kennedy v. Louisiana, 554 U.S. 407,
419 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 101
(1958) (plurality opinion)). Evolving standards have
yielded a familiar cycle: States develop a method of execu-
tion, which is generally accepted for a time. Science then
reveals that—unknown to the previous generation—the
States’ chosen method of execution causes unconstitutional
levels of suffering. A new method of execution is devised,
and the dialogue continues. The Eighth Amendment
requires this conversation. States should not be permitted
to silence it by statute.
A
From the time of the founding until the early 20th cen-
tury, hanging was the preferred practice. Gardner, Execu-
tions and Indignities—An Eighth Amendment Assessment
of Methods of Inflicting Capital Punishment, 39 Ohio St.
L. J. 96, 119 (1978). After several grotesque failures at
the gallows—including slow asphyxiation and violent
14 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
decapitation—revealed the “crude and imprecise” nature
of the practice, Campbell v. Wood, 511 U.S. 1119, 1122
(1994) (Blackmun, J., dissenting from denial of certiorari),
States sought to execute condemned prisoners “ ‘in a less
barbarous manner’ ” and settled on electrocution. See In
re Kemmler, 136 U.S. 436, 444 (1890).
New York carried out the world’s first electrocution in
ghastly fashion,4 leading the New York Times to declare it
“a disgrace to civilization.” See Far Worse Than Hanging,
N. Y. Times, Aug. 7, 1890, p. 1. Electrocution nonetheless
remained the dominant mode of execution for more than a
century, until the specter of charred and grossly disfigured
bodies proved too much for the public, and the courts, to
bear.5 See, e.g., Dawson v. State, 274 Ga. 327, 335, 554
——————
4 New York executed William Kemmler on August 6, 1890. According
to the New York Times, “[p]robably no convicted murderer of modern
times has been made to suffer as Kemmler suffered.” Far Worse Than
Hanging, N. Y. Times, Aug. 7, 1890, p. 1. Witnesses recounted the
execution:
“After the first convulsion there was not the slightest movement of
Kemmler’s body. . . . Then the eyes that had been momentarily turned
from Kemmler’s body returned to it and gazed with horror on what they
saw. The men rose from their chairs impulsively and groaned at the
agony they felt. ‘Great God! [H]e is alive!’ [S]omeone said[.] ‘Turn on
the current,’ said another . . . .
“Again came that click as before, and again the body of the uncon-
scious wretch in the chair became as rigid as one of bronze. It was
awful, and the witnesses were so horrified by the ghastly sight that
they could not take their eyes off it. The dynamo did not seem to run
smoothly. The current could be heard sharply snapping. Blood began
to appear on the face of the wretch in the chair. It stood on the face like
sweat. . . .
“An awful odor began to permeate the death chamber, and then, as
though to cap the climax of this fearful sight, it was seen that the hair
under and around the electrode on the head and the flesh under and
around the electrode at the base of the spine was singeing. The stench
was unbearable.” Ibid. (paragraph break omitted).
5 After a particularly gruesome electrocution in Florida, this Court
granted certiorari on the question whether electrocution creates a
Cite as: 580 U. S. ____ (2017) 15
SOTOMAYOR, J., dissenting
S. E. 2d 137, 144 (2001) (“[W]e hold that death by electro-
cution, with its specter of excruciating pain and its cer-
tainty of cooked brains and blistered bodies, violates the
prohibition against cruel and unusual punishment”).
The States then tried lethal gas. Although the gas
chamber was initially believed to produce relatively pain-
less death, it ultimately became clear that it exacted
“exquisitely painful” sensations of “anxiety, panic, [and]
terror,” leading courts to declare it unconstitutional. See,
e.g., Fierro v. Gomez, 77 F.3d 301, 308 (CA9 1996) (inter-
nal quotation marks omitted).6
Finally, States turned to a “more humane and palata-
ble” method of execution: lethal injection. Denno, 63 Ohio
St. L. J., at 92. Texas performed the first lethal injection
in 1982 and, impressed with the apparent ease of the
process, other States quickly followed suit. S. Banner, The
Death Penalty: An American History 297 (2002). One
prison chaplain marveled: “ ‘It’s extremely sanitary. . . .
The guy just goes to sleep. That’s all there is to it.’ ” Ibid.
What cruel irony that the method that appears most
humane may turn out to be our most cruel experiment yet.
B
Science and experience are now revealing that, at least
with respect to midazolam-centered protocols, prisoners
executed by lethal injection are suffering horrifying deaths
beneath a “medically sterile aura of peace.” Denno, supra,
——————
constitutionally unacceptable risk of physical suffering in violation of
the Eighth Amendment, see Bryan v. Moore, 528 U.S. 960 (1999), but
later dismissed the writ as improvidently granted in light of an
amendment to the State’s execution statute that permitted prisoners to
choose lethal injection rather than electrocution, see Bryan v. Moore,
528 U.S. 1133 (2000). See also Fla. Stat. Ann. §922.10 (West 2001).
6 This Court granted certiorari in Fierro, vacated the judgment, and
remanded for consideration in light of the California Legislature’s
adoption of lethal injection as the State’s primary method of execution.
See Gomez v. Fierro, 519 U.S. 918 (1996).
16 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
at 66. Even if we sweep aside the scientific evidence, we
should not blind ourselves to the mounting firsthand
evidence that midazolam is simply unable to render pris-
oners insensate to the pain of execution. The examples
abound.
After Ohio administered midazolam during the execu-
tion of Dennis McGuire in January 2014, he “strained
against the restraints around his body, and . . . repeatedly
gasped for air, making snorting and choking sounds for
about 10 minutes.” Johnson, Inmate’s Death Called ‘Hor-
rific’, Columbus Dispatch, Jan. 17, 2014, pp. A1, A10.
The scene was much the same during Oklahoma’s
execution of Clayton Lockett in April 2014. After execu-
tioners administered midazolam and declared him uncon-
scious, Lockett began to writhe against his restraints,
saying, “[t]his s*** is f***ing with my mind,” “something is
wrong,” and “[t]he drugs aren’t working.” Glossip, 576
U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 3).
When Arizona executed Joseph Rudolph Wood in July
2014 using a midazolam-based protocol, he “gulped like a
fish on land.” Kiefer, Botched Execution, Arizona Dis-
patch, July 24, 2014, pp. A1, A9. A witness reported more
than 640 gasps as Woods convulsed on the gurney for
more than an hour and a half before being declared dead.
Ibid.
Finally, and just over a month after this Court stayed
Thomas Arthur’s execution, Alabama executed Ronald
Bert Smith. Following the dose of midazolam, Smith
“clenched his fist” and was “apparently struggling for
breath as he heaved and coughed for about 13 minutes.”
Berman & Barnes, Alabama Inmate was Heaving, Cough-
ing During Lethal-Injection Execution, Washington Post,
Dec. 10, 2016, p. A3.
It may well be that as originally designed, lethal injec-
tion can be carried out in a humane fashion that comports
with the Eighth Amendment. But our lived experience
Cite as: 580 U. S. ____ (2017) 17
SOTOMAYOR, J., dissenting
belies any suggestion that midazolam reliably renders
prisoners entirely unconscious to the searing pain of the
latter two drugs. These accounts are especially terrifying
considering that each of these men received doses of pow-
erful paralytic agents, which likely masked the full extent
of their pain. Like a hangman’s poorly tied noose or a
malfunctioning electric chair, midazolam might render our
latest method of execution too much for our conscience—
and the Constitution—to bear.
C
As an alternative to death by midazolam, Thomas Ar-
thur has proposed death by firing squad. Some might find
this choice regressive, but the available evidence suggests
“that a competently performed shooting may cause nearly
instant death.” Denno, Is Electrocution An Unconstitu-
tional Method of Execution? The Engineering of Death
Over the Century, 35 Wm. & Mary L. Rev. 551, 688
(1994). In addition to being near instant, death by shoot-
ing may also be comparatively painless. See Banner,
supra, at 203. And historically, the firing squad has
yielded significantly fewer botched executions. See A.
Sarat, Gruesome Spectacles: Botched Executions and
America’s Death Penalty, App. A, p. 177 (2014) (calculat-
ing 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).
Chief Justice Warren famously wrote that “[t]he basic
concept underlying the Eighth Amendment is nothing less
than the dignity of man.” Trop, 356 U.S., at 100 (plural-
ity opinion). States have designed lethal-injection proto-
cols with a view toward protecting their own dignity, but
they should not be permitted to shield the true horror of
executions from official and public view. Condemned
prisoners, like Arthur, might find more dignity in an
instantaneous death rather than prolonged torture on a
18 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
medical gurney.
To be clear, this is not a matter of permitting inmates to
choose the manner of death that best suits their desires.
It is a matter of permitting a death row inmate to make
the showing Glossip requires in order to prove that the
Constitution demands something less cruel and less unu-
sual than what the State has offered. Having met the
challenge set forth in Glossip, Arthur deserves the oppor-
tunity to have his claim fairly reviewed in court. The
Eleventh Circuit denied him this opportunity, and in
doing so, thwarted the Court’s decision in Glossip, as well
as basic constitutional principles.
* * *
Twice in recent years, this Court has observed that it
“has never invalidated a State’s chosen procedure for
carrying out a sentence of death as the infliction of cruel
and unusual punishment.” Baze, 553 U.S., at 48 (plurality
opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same).
In Glossip, the majority opinion remarked that the Court
“did not retreat” from this nonintervention strategy even
after Louisiana strapped a 17-year-old boy to its electric
chair and, having failed to kill him the first time, argued
for a second try—which this Court permitted. Id., at ___–
___ (slip op., at 3–4). We should not be proud of this history.
Nor should we rely on it to excuse our current inaction.
I dissent.