Zagorski v. Haslam , 202 L. Ed. 2d 343 ( 2018 )

Cite as: 586 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
EDMUND ZAGORSKI v. BILL HASLAM, GOVERNOR
OF TENNESSEE, ET AL.
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
No. 18-6530 (18A470) Decided November 1, 2018
The application for stay of execution of sentence of death
presented to JUSTICE KAGAN and by her referred to the
Court is denied. The petition for a writ of certiorari is
denied.
JUSTICE SOTOMAYOR, dissenting from denial of applica-
tion for stay and denial of certiorari.
Three weeks ago, I expressed my concerns with the
Tennessee Supreme Court’s rejection of petitioner Ed-
mund Zagorski’s challenge to the lethal-injection protocol
that the State previously planned to use to execute him.
Zagorski v. Parker, 586 ante, p.___ (opinion dissenting
from denial of application for stay and denial of certiorari).
In the wake of that ruling, Zagorski sought instead to be
executed by the electric chair. He did so not because he
thought that it was a humane way to die, but because he
thought that the three-drug cocktail that Tennessee had
planned to use was even worse. Given what most people
think of the electric chair, it is hard to imagine a more
striking testament—from a person with more at stake—to
the legitimate fears raised by the lethal-injection drugs
that Tennessee uses. See id., at ___ (slip op., at 1) (noting
“mounting evidence that the sedative to be used, midazo-
lam, will not prevent the prisoner from feeling as if he is
‘drowning, suffocating, and being burned alive from the
inside out’ during a process that could last as long as 18
minutes”).
2 ZAGORSKI v. HASLAM
SOTOMAYOR, J., dissenting
The present challenge does not concern lethal injection.
That said, it might never have arisen if Zagorski had been
able to prevail simply by showing that Tennessee’s lethal-
injection protocol “creates a demonstrated risk of severe
pain.” Abdur’Rahman v. Parker, ___ S. W. 3d ___, 2018
WL 4858002, *13 (Tenn., Oct. 8, 2018). Instead, under
this Court’s decision in Glossip v. Gross, 576 U. S. ___
(2015), Zagorski’s prior challenge failed only because the
Tennessee Supreme Court ruled that he had not proved
the “availability of ” a safer lethal-injection drug (pento-
barbital) that was Zagorski’s “proposed alternative method
of execution.” Abdur’Rahman, 2018 WL 4858002, *13.
His eleventh-hour decision to accept the electric chair as a
marginally less excruciating alternative does not under-
mine, as a matter of logic, his contention that both Ten-
nessee’s lethal-injection protocol and the electric chair are
cruel and unusual in violation of the Eighth Amendment.
Given this petition’s unique posture, I note that this
Court’s denial of Zagorski’s challenge says nothing about
the constitutional tolerability of the electric chair, which
has raised concern in other forums. See, e.g., State v.
Mata, 275 Neb. 1, 67, 745 N.W.2d 229, 278 (2008) (“Elec-
trocution’s proven history of burning and charring bodies
is inconsistent with both the concepts of evolving stand-
ards of decency and the dignity of man”). It says a great
deal, however, about how this Court’s decision in Glossip
continues to “immunize . . . methods of execution—no mat-
ter how cruel or how unusual—from judicial review.” See
Arthur v. Dunn, 580 U. S. ___, ___ (2017) (SOTOMAYOR, J.,
dissenting from denial of certiorari) (slip op., at 1). Be-
cause I continue to believe that we should rethink this
troubling doctrinal shift and reaffirm that “[t]he Cruel and
Unusual Punishments Clause prohibits the imposition of
inherently barbaric punishments under all circumstanc-
es,” Graham v. Florida, 560 U.S. 48, 59 (2010), I dissent.