glossip et al gross et argued april decided june capital punishment constitutional must constitutional means carrying oklahoma adopted lethal injection method execution settled protocol sodium thiopental barbiturate induce state unconsciousness paralytic agent inhibit movements potassium chloride induce cardiac arrest baze rees held protocol violate eighth amendment prohibition cruel unusual punishments advocates pressured pharmaceutical companies prevent sodium thiopental later another barbiturate called pentobarbital used executions unable obtain either sodium thiopental pentobarbital oklahoma decided use dose midazolam sedative first drug protocol oklahoma inmates filed action claiming use midazolam violates eighth amendment four inmates filed motion preliminary injunction argued dose midazolam render unable feel pain associated administration second third drugs evidentiary hearing district denied motion held prisoners failed identify known available alternative method execution presented substantially less severe risk pain also held prisoners failed establish likelihood showing use midazolam created demonstrated risk severe pain tenth circuit affirmed held petitioners failed establish likelihood success merits claim use midazolam violates eighth amendment pp obtain preliminary injunction petitioners must establish among things likelihood success merits claim see winter natural resources defense council succeed eighth amendment claim prisoner must establish method creates demonstrated risk severe pain risk substantial compared known available alternatives baze supra plurality opinion pp petitioners failed establish risk harm substantial compared known available alternative method execution petitioners suggested oklahoma execute using sodium thiopental pentobarbital district commit clear error found drugs unavailable state petitioners argue eighth amendment require identify alternative argument inconsistent controlling opinion baze imposed requirement follows petitioners also argue requirement identify alternative inconsistent decision hill mcdonough misread decision hill concerned question civil procedure substantive eighth amendment question case held alone require inmate asserting claim plead acceptable alternative baze hand made clear eighth amendment requires prisoner plead prove known available alternative pp district commit clear error found midazolam likely render person unable feel pain associated administration paralytic agent potassium chloride pp several initial considerations bear emphasis first district factual findings reviewed deferential clear error standard second petitioners burden persuasion question whether midazolam effective third fact numerous courts concluded midazolam likely render inmate insensate pain execution heightens deference owed district findings finally challenges lethal injection protocols test boundaries authority competency federal courts embroil ongoing scientific controversies beyond expertise baze supra pp state expert presented persuasive testimony dose midazolam make virtual certainty inmate feel pain associated second third drugs petitioners experts acknowledged contrary scientific proof expert testimony presented sides lends support district conclusion evidence suggested dose midazolam induce coma even one petitioners experts agreed dose midazolam increases expected produce lack response pain dispositive midazolam recommended approved use sole anesthetic painful surgery first dose issue many times higher normal therapeutic dose second fact low dose midazolam best drug maintaining unconsciousness says little whether dose constitutionally adequate conduct execution finally district err concluding safeguards adopted oklahoma ensure proper administration midazolam serve minimize risk drug operate intended pp petitioners speculative evidence regarding midazolam ceiling effect establish district findings clearly erroneous mere fact midazolam ceiling increase dosage produces effect dispositive petitioners provided little probative evidence relevant question whether midazolam ceiling effect occurs level dose point drug effect rendering person insensate pain caused second third drugs petitioners attempt deflect attention failure proof point criticizing testimony state expert emphasize apparent conflict state expert expert regarding biological process produces midazolam ceiling effect even petitioners expert correct regarding biological process largely beside point matters present purposes dosage ceiling effect kicks biological process produces effect pp petitioners remaining arguments expert report presented district rejected referenced unreliable sources contained alleged mathematical error four used midazolam execution difficulties two recent executions suggest midazolam ineffective lack merit pp affirmed alito delivered opinion roberts scalia kennedy thomas joined scalia filed concurring opinion thomas joined thomas filed concurring opinion scalia joined breyer filed dissenting opinion ginsburg joined sotomayor filed dissenting opinion ginsburg breyer kagan joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press richard glossip et petitioners kevin gross et al writ certiorari appeals tenth circuit june justice alito delivered opinion prisoners sentenced death state oklahoma filed action federal rev stat contending method execution used state violates eighth amendment creates unacceptable risk severe pain argue midazolam first drug employed state current protocol fails render person insensate pain holding evidentiary hearing district denied four prisoners application preliminary injunction finding failed prove midazolam ineffective appeals tenth circuit affirmed accepted district finding fact regarding midazolam efficacy two independent reasons also affirm first prisoners failed identify known available alternative method execution entails lesser risk pain requirement eighth amendment claims see baze rees plurality opinion second district commit clear error found prisoners failed establish oklahoma use massive dose midazolam execution protocol entails substantial risk severe pain death penalty accepted punishment time adoption constitution bill rights era death sentences usually carried hanging death penalty america current controversies bedau ed hanging remained standard method execution much century began change century later years see baze supra legislature state new york appointed commission find humane practical method known modern science carrying effect sentence death capital cases kemmler commission recommended electrocution legislature enacted law providing method execution subsequent years followed new york lead electrocution less painful humane hanging baze quoting malloy south carolina nevada legislature adopted another new method execution lethal gas concluding humane manner known modern science state jon nevada rejected argument use lethal gas unconstitutional followed nevada lead see ariz art xxii cal stats ch sess laws ch md laws ch mo laws nevertheless hanging firing squad retained see del laws ch hanging sess laws ch hanging utah code crim proc hanging firing squad electrocution remained predominant method execution hiatus executions ended judgment gregg georgia see baze supra gregg reaffirmed death penalty violate constitution sought humane way carry death sentences eventually adopted lethal injection today far prevalent method execution baze supra oklahoma adopted lethal injection see sess laws eventually settled protocol called use three drugs sodium thiopental barbiturate sedative induces deep comalike unconsciousness given amounts used lethal injection paralytic agent inhibits movements paralyzing diaphragm stops respiration potassium chloride interferes electrical signals stimulate contractions heart inducing cardiac arrest baze supra see also brief respondents least used lethal injection employed particular protocol methods execution changed years never invalidated state chosen procedure carrying sentence death infliction cruel unusual punishment wilkerson utah upheld sentence death firing squad kemmler supra rejected challenge use electric chair retreat holding even presented case state initial attempt execute prisoner electrocution unsuccessful louisiana ex rel francis resweber plurality opinion recently baze supra seven justices agreed protocol discussed violate eighth amendment decisions area animated part recognition settled capital punishment constitutional necessarily follows must constitutional means carrying risk pain inherent method execution held constitution require avoidance risk pain ibid humans wish die painless death many good fortune holding eighth amendment demands elimination essentially risk pain effectively outlaw death penalty altogether baze cleared legal obstacle use common protocol enabled carry death penalty quick painless fashion practical obstacle soon emerged advocates pressured pharmaceutical companies refuse supply drugs used carry death sentences sole american manufacturer sodium thiopental first drug used standard protocol persuaded cease production drug suspending domestic production company planned resume production italy koppel execution drug halt raises ire doctors wall street journal activists pressured company italian government stop sale sodium thiopental use lethal injections country bonner letter europe drug company cross hairs death penalty opponents times mar koppel drug halt hinders executions wall street journal effort proved successful january company announced exit sodium thiopental market entirely see hospira press release hospira statement regarding pentothaltm sodium thiopental market exit efforts procure sodium thiopental proved unsuccessful sought alternative eventually replaced sodium thiopental pentobarbital another barbiturate december oklahoma became first state execute inmate using pentobarbital see reuters chicago tribune new drug mix used oklahoma execution execution occurred without incident gradually shifted pentobarbital supplies sodium thiopental ran reported pentobarbital used executions carried death penalty institute execution list online www internet materials visited june available clerk case file petitioners concede pentobarbital like sodium thiopental reliably induce maintain comalike state renders person insensate pain caused administration second third drugs protocol brief petitioners courts across country held use pentobarbital executions violate eighth amendment see jackson danberg beaty brewer deyoung owens pavatt jones long however pentobarbital also became unavailable advocates lobbied danish manufacturer drug stop selling use executions see bonner supra manufacturer opposed death penalty took steps block shipment pentobarbital use executions stein new obstacle death penalty washington post july oklahoma eventually became unable acquire drug means district found sodium thiopental pentobarbital unavailable oklahoma app unable acquire either sodium thiopental pentobarbital turned midazolam sedative benzodiazepine family drugs october florida became first state substitute midazolam pentobarbital part lethal injection protocol fernandez executions stall seek different drugs times date florida conducted executions using protocol calls midazolam followed paralytic agent potassium chloride see brief state florida amicus curiae chavez florida sp warden oklahoma also substituted midazolam pentobarbital part protocol oklahoma already used protocol twice execute clayton lockett april charles warner january warner one four inmates moved preliminary injunction case lockett execution caused oklahoma implement new safety precautions part lethal injection protocol oklahoma executed lockett protocol called administration milligrams midazolam compared milligrams currently required morning execution lockett cut twice bend elbow app evening execution team spent nearly hour making least one dozen attempts establish intravenous iv access lockett cardiovascular system including arms elsewhere body team eventually believed established intravenous access lockett right femoral vein covered injection access point sheet part preserve lockett dignity execution team administered midazolam physician determined lockett unconscious team next administered paralytic agent vecuronium bromide potassium chloride lockett began move speak point physician lifted sheet determined iv infiltrated means iv fluid rather entering lockett blood stream leaked tissue surrounding iv access point warner gross case execution team stopped administering remaining potassium chloride terminated execution minutes midazolam first injected minutes later lockett pronounced dead investigation lockett execution concluded viability iv access point single greatest factor contributed difficulty administering execution drugs app investigation took five months complete recommended several changes oklahoma execution protocol oklahoma adopted new protocol effective date september protocol allows oklahoma department corrections choose among four different drug combinations option oklahoma plans use execute petitioners calls administration milligrams midazolam followed paralytic agent potassium paralytic agent may pancuronium bromide vecuronium bromide rocuronium bromide three drugs agree functionally equivalent purposes case protocol also includes procedural safeguards help ensure inmate remains insensate pain caused administration paralytic agent potassium chloride safeguards include insertion primary backup iv catheter procedures confirm viability iv site option postpone execution viable iv sites established within hour mandatory pause administration first second drugs numerous procedures monitoring offender consciousness including use electrocardiograph direct observation detailed provisions respect training preparation execution team january year oklahoma executed warner using revised procedures combination midazolam paralytic agent potassium chloride ii june oklahoma switched pentobarbital midazolam executed lockett oklahoma death row inmates filed action challenging state new lethal injection protocol complaint alleged oklahoma use midazolam violates eighth amendment prohibition cruel unusual punishment november four plaintiffs richard glossip benjamin cole john grant warner filed motion preliminary injunction four men convicted murder sentenced death oklahoma juries glossip hired justin sneed kill employer barry van treese sneed entered room van treese sleeping beat death baseball bat see glossip state ok cr cole murdered daughter stop crying cole bent body backwards snapped spine half child died cole played video games see cole state ok cr grant serving terms imprisonment totaling years killed gay carter prison food service supervisor pulling mop closet stabbing numerous times shank see grant state ok cr warner anally raped murdered girl child injuries included two skull fractures internal brain injuries two fractures jaw lacerated liver bruised spleen lungs see warner state ok cr oklahoma criminal appeals affirmed murder conviction death sentence offender men unsuccessfully sought state postconviction federal habeas corpus relief exhausted avenues challenging convictions sentences moved preliminary injunction oklahoma lethal injection protocol december discovery district held evidentiary hearing preliminary injunction motion district heard testimony witnesses reviewed numerous exhibits david lubarsky anesthesiologist larry sasich doctor pharmacy provided expert testimony midazolam petitioners roswell evans doctor pharmacy provided expert testimony respondents reviewing evidence district issued oral ruling denying motion preliminary injunction district first rejected petitioners challenge daubert merrell dow pharmaceuticals testimony evans concluded evans dean auburn university school pharmacy well qualified testify midazolam properties offered reliable testimony district held petitioners failed establish likelihood success merits claim use midazolam violates eighth amendment provided two independent reasons conclusion first held petitioners failed identify known available method execution presented substantially less severe risk pain method state proposed use second found petitioners failed prove oklahoma protocol presents risk likely cause serious illness needless suffering amounting objectively intolerable risk harm app quoting baze emphasized oklahoma protocol featured numerous safeguards including establishment two iv access sites confirmation viability sites monitoring offender level consciousness throughout procedure district supported decision findings fact midazolam found dose midazolam make virtual certainty individual sufficient level unconsciousness resist noxious stimuli occur application second third drugs app indeed found dose alone likely cause death respiratory arrest within minutes hour appeals tenth circuit affirmed appeals explained decision baze requires plaintiff challenging lethal injection protocol demonstrate risk severe pain presented execution protocol substantial compared known available alternatives quoting baze supra agreed district petitioners identified alternative appeals added however holding case petitioners additionally failed establish use midazolam creates demonstrated risk severe pain appeals found district abuse discretion relying evans testimony concluded district factual findings midazolam clearly erroneous also held alleged errors evans testimony render testimony unreliable district findings clearly erroneous oklahoma executed warner january subsequently voted grant review stayed executions glossip cole grant pending resolution case iii plaintiff seeking preliminary injunction must establish likely succeed merits likely suffer irreparable harm absence preliminary relief balance equities tips favor injunction public interest winter natural resources defense council parties agree case turns whether petitioners able establish likelihood success merits eighth amendment made applicable fourteenth amendment prohibits infliction cruel unusual punishments controlling opinion baze outlined prisoner must establish succeed eighth amendment claim baze involved challenge kentucky death row inmates state lethal injection protocol sodium thiopental pancuronium bromide potassium chloride inmates conceded protocol properly administered result humane constitutional execution sodium thiopental render inmate oblivious pain caused second third drugs argued unacceptable risk sodium thiopental properly administered ibid inmates also maintained significant risk harm eliminated kentucky adopted protocol additional monitoring trained personnel controlling opinion baze first concluded prisoners successfully challenge method execution unless establish method presents risk likely cause serious illness needless suffering give rise imminent dangers quoting helling mckinney prevail claim must risk serious harm intolerable risk harm prevents prison officials pleading blameless purposes eighth amendment quoting farmer brennan controlling opinion also stated prisoners successfully challenge state method execution merely showing slightly marginally safer alternative instead prisoners must identify alternative feasible readily implemented fact significantly reduce substantial risk severe pain controlling opinion summarized requirements eighth amendment claim follows stay execution may granted grounds asserted unless condemned prisoner establishes state lethal injection protocol creates demonstrated risk severe pain must show risk substantial compared known available alternatives preliminary injunction posture present case thus requires petitioners establish likelihood establish oklahoma lethal injection protocol creates demonstrated risk severe pain risk substantial compared known available alternatives challenge baze failed kentucky inmates show risks identified substantial imminent establish existence known available alternative method execution entail significantly less severe risk petitioners arguments fail similar reasons first petitioners proved risk posed midazolam substantial compared known available alternative methods execution second failed establish district committed clear error found use midazolam result severe pain suffering address reason turn iv first ground affirmance based petitioners failure satisfy burden establishing risk harm substantial compared known available alternative method execution amended complaint petitioners proffered state use sodium thiopental part protocol since suggested might also constitutional oklahoma use pentobarbital district found sodium thiopental pentobarbital unavailable oklahoma department corrections appeals affirmed finding clearly erroneous contrary record shows oklahoma unable procure drugs despite effort petitioners seriously contest factual finding identified available drug drugs used place oklahoma unable obtain shown risk pain great acceptable available methods must used instead argue need identify known available method execution presents less risk argument inconsistent controlling opinion baze imposed requirement petitioners contend requirement identify alternative method execution contravenes decision hill mcdonough misread decision portion opinion hill rely concerned question civil procedure substantive eighth amendment question hill issue whether challenge method execution must brought means application writ habeas corpus civil action held claim must brought claim attack validity prisoner conviction death sentence amicus curiae argued adopt special pleading requirement stop inmates using actions attack particular means execution death penalty achieve end proposed inmate asserting claim required plead acceptable alternative method execution rejected argument pecific pleading requirements mandated federal rules civil procedure general rule determinations federal courts ibid hill thus held alone impose heightened pleading requirement baze hand addressed substantive elements eighth amendment claim made clear eighth amendment requires prisoner plead prove known available alternative petitioners failed district properly held establish likelihood success eighth amendment claim readers judge much distance principal dissent argument requiring prisoners identify alternative view announced justices breyer ginsburg death penalty categorically unconstitutional post breyer dissenting principal dissent goes way suggest state violate eighth amendment used one methods execution employed advent lethal injection post principal dissent makes suggestion even though held wilkerson method firing squad constitutional even though words principal dissent reason think relatively quick painless post tellingly silent methods execution commonly used switched lethal injection electric chair gas chamber principal dissent implies unconstitutional use method seen devolution primitive era ibid return primitive methods used past drug meets principal dissent approval available use carrying death sentence logical conclusion clear time reaffirmed capital punishment per se unconstitutional see baze scalia concurring judgment gregg joint opinion stewart powell stevens jj white concurring judgment resweber kemmler wilkerson decline effectively overrule decisions also affirm second reason district commit clear error found midazolam highly likely render person unable feel pain execution emphasize four points outset analysis first review district factual findings deferential clear error standard standard entitle us overturn finding simply convinced decided case differently anderson bessemer city second petitioners bear burden persuasion issue baze supra although petitioners expend great effort attacking peripheral aspects evans testimony make little attempt prove critical evidence presented district establishes use midazolam sure likely result needless suffering third numerous courts concluded use midazolam first drug protocol likely render inmate insensate pain might result administration paralytic agent potassium chloride see case affirming district chavez florida sp warden affirming district banks state affirming lower howell state muhammad state noteworthy one two key witnesses case lubarsky petitioners evans respondents witnesses chavez howell muhammad cases intermediate reviews affirms trial factual findings overturn concurrent findings two lower courts easley cromartie review even deferential multiple trial courts reached finding multiple appellate courts affirmed findings cf exxon sofec explaining undertake review concurrent findings fact two courts absence obvious exceptional showing quoting graver tank mfg linde air products fourth challenges lethal injection protocols test boundaries authority competency federal courts although must invalidate lethal injection protocol violates eighth amendment federal courts embroil ongoing scientific controversies beyond expertise baze supra accordingly inmate challenging protocol bears burden show based evidence presented substantial risk severe pain petitioners attack district findings fact two main first argue even midazolam powerful enough induce unconsciousness weak maintain unconsciousness insensitivity pain second third drugs administered second conceding dose midazolam much higher normal therapeutic dose contend fact irrelevant midazolam ceiling effect certain point increase dose administered greater effect inmate neither argument succeeds district found midazolam capable placing person sufficient level unconsciousness resist noxious stimuli occur application second third drugs app conclusion clearly erroneous respondents expert evans testified proper administration dose midazolam make virtual certainty individual sufficient level unconsciousness resist noxious stimuli occur application drugs used oklahoma protocol see also petitioners experts acknowledged contrary scientific proof see sasich stating ability midazolam render person insensate second third drugs subjected scientific testing lubarksy stating scientific literature addressing use midazolam manner administer lethal injections humans effort explain dearth evidence sasich testified responsibility food drug administration responsibility prove drug work safe tr preliminary injunction hearing instead stated responsibility proponent show drug safe effective ibid sasich confused standard imposed drug manufacturer seeking approval therapeutic drug standard must borne party challenging state lethal injection protocol method execution authorized state law party contending method violates eighth amendment bears burden showing method creates unacceptable risk pain petitioners experts effectively conceded lacked evidence prove case beyond dispute petitioners attempt avoid deficiency criticizing respondents expert argue district credited evans testimony admitted findings based ions studies done much lower therapeutic doses midazolam see brief petitioners citing tr emphasis deleted dose never administered therapeutic purpose extrapolation reasonable conclusions petitioners experts also based extrapolations assumptions example lubarsky relied extrapolation ceiling effect data app based evidence parties presented district must affirm testimony sides supports district conclusion midazolam render person insensate pain evans testified although midazolam analgesic nonetheless render person unconscious remainder procedure discussion ceiling effect sasich agreed dose midazolam increases expected produce sedation amnesia finally lack response stimuli pain unconsciousness petitioners argue midazolam powerful enough keep person insensate pain administration second third drugs evans presented creditable testimony contrary see tr testifying dose midazolam induce coma indeed low doses midazolam sufficient induce unconsciousness even times used sole relevant drug certain medical procedures sasich conceded example midazolam might used medical procedures like colonoscopies gastroscopies app see also brief respondents petitioners emphasize midazolam recommended approved use sole anesthetic painful surgery two reasons dispositive first district found dose issue many times higher normal therapeutic dose midazolam app effect small dose midazolam minimal probative value effect dose second fact low dose midazolam best drug maintaining unconsciousness surgery says little whether dose midazolam constitutionally adequate purposes conducting execution recognized point baze concluded although medical standard care might require use blood pressure cuff electrocardiogram surgeries mean procedures required execution pass eighth amendment scrutiny oklahoma also adopted important safeguards ensure midazolam properly administered district emphasized three requirements particular execution team must secure primary backup iv access site must confirm viability iv sites must continuously monitor offender level consciousness district commit clear error concluding safeguards help minimize risk might occur event midazolam operate intended indeed concluded baze many safeguards oklahoma employs including establishment primary backup iv presence personnel monitor inmate help significantly reducing risk execution protocol violate eighth amendment many safeguards oklahoma adopted mirror dissent baze complained absent kentucky protocol case example dissent argued consciousness check injection second drug reduce risk dreadful pain kentucky failure include step procedure unconstitutional opinion ginsburg dissent also complained kentucky monitor effectiveness first drug pause injection first second drugs oklahoma accommodated concerns petitioners assert midazolam ceiling effect undermines district finding effectiveness huge dose administered oklahoma protocol petitioners argue midazolam ceiling increase dosage produces effect result maintain wrong assume dose much greater effect therapeutic dose milligrams mere fact midazolam ceiling dispositive sasich testified drugs essentially ceiling effect tr relevant question whether midazolam ceiling effect occurs level dose point drug effect rendering person insensate pain caused second third drugs petitioners provided little probative evidence point speculative evidence present district come close establishing factual findings clearly erroneous sasich stated expert report literature indicates midazolam ceiling effect conceded unable determine midazolam dose ceiling effect unconsciousness literature testing done app lubarsky report similar testimony petitioners experts hearing compelling sasich frankly admitted search try determine dose midazolam get ceiling effect concluded find one tr closest petitioners came lubarsky suggestion ceiling effect occurs robably milligrams added actually done relevant calculations admitted ca tell right dose ceiling effect occurs app conclude district committed clear error declining find based speculative evidence ceiling effect negates midazolam ability render inmate insensate pain caused second third drugs protocol principal dissent discusses ceiling effect length studiously avoids suggesting petitioners presented probative evidence dose ceiling effect occurs whether effect occurs person becomes insensate pain principal dissent avoids critical issues suggesting evidence irrelevant dose drug render person pain post district heard evidence drug render person insensate pain evans sasich one petitioners experts testified higher doses midazolam expected produce lack response stimuli pain app brief petitioners attempt deflect attention failure proof regarding midazolam ceiling effect criticizing evans testimony petitioners burden establish midazolam ceiling occurred dosage massive dose employed oklahoma protocol point drug failed render recipient insensate pain meet burden criticisms undermine evans central point district credited properly administered dose midazolam render recipient unable feel pain one petitioners criticisms evans testimony little quibble wording chosen evans one point oral testimony petitioners expert lubarsky stated report midazolam increases effective binding acid gaba receptor induce unconsciousness app evans report provided similar explanation way midazolam works see lubarsky dispute accuracy explanation testified hearing petitioners contend however evans erred said hearing idazolam attaches gaba receptors inhibiting gaba emphasis added petitioners contend statement incorrect far inhibiting gaba midazolam facilitates binding gaba receptors brief petitioners making argument petitioners simply quarrelling words evans used oral testimony effort explain midazolam works terms understandable layman petitioners suggest discussion midazolam evans expert report inaccurate evans passing use term inhibiting lubarksy expert report gaba inhibition brain activity accentuated midazolam app emphasis added evans oral use word inhibiting particularly light written testimony invalidate district decision rely testimony petitioners also point apparent conflict evans testimony declaration lubarsky submitted district ruled regarding biological process produces midazolam ceiling effect even lubarsky declaration correct largely beside point matters present purposes dosage ceiling effect kicks biological process produces effect lubarsky declaration render district findings clearly erroneous respect critical issue petitioners remaining arguments midazolam lack merit first persuaded petitioners argument evans testimony rejected sources listed report petitioners criticize two selected references evans cited expert report web site material safety data sheet msds midazolam petitioners argument daubert challenge evans testimony argument district findings clearly erroneous district concluded evans give expert testimony gave testimony product reliable principles methods reliably applied facts case app extent reliability evans testimony even us district conclusion testimony based reliable sources reviewed deferential standard general elec joiner evans relied multiple sources expertise testimony may disqualified simply one source warns intended medical another msds information provided warranty express implied regarding correctness brief petitioners medical journals parties rely upon typically contain similar disclaimers see anesthesiology terms conditions use online http none information site shall used diagnose treat health problem disease lubarsky petitioners expert relied msds argue midazolam ceiling effect petitioners identify incorrect statements evans relied fact although sasich submitted declaration appeals criticizing evans reference declaration identify single fact site discussion midazolam materially inaccurate second petitioners argue evans expert report contained mathematical error find argument insignificant evans stated expert report lowest dose midazolam resulting human deaths according msds delivered intravenously app lubarsky agreed statement specifically testified fatalities occurred doses ranging stated evans testimony effect true statement though added fatalities occurred among elderly understand petitioners dispute testimony evans expert potentially fatal dose midazolam instead make much fact msds attached evans report apparently contained typographical error reported lowest toxic dose evans repeat incorrect figure instead reported correct dose supports rather undermines testimony event alleged error msds irrelevant district expressly stated rely figure msds see third petitioners argue consensus among regarding midazolam efficacy four oklahoma arizona florida ohio used midazolam part execution petitioners rely plurality statement baze difficult regard practice intolerable fact widely tolerated plurality emphasis fact adopted lethal injection used particular protocol issue case use particular protocol issue baze supported conclusion protocol violate eighth amendment say converse true protocols methods execution doubtful constitutionality argument accepted hamper adoption new potentially humane methods execution prevent adapting changes availability suitable drugs fourth petitioners argue difficulties oklahoma execution lockett arizona july execution joseph wood establish midazolam sure likely cause serious pain persuaded aside lockett execution executions conducted using protocol issue appear conducted without significant problems see brief respondents brief state florida amicus curiae moreover lockett administered milligrams midazolam oklahoma investigation execution concluded difficulties due primarily execution team inability obtain iv access site wood execution involve protocol issue wood receive single dose milligrams midazolam instead received fifteen doses span two brief respondents arizona used different protocol paired midazolam hydromorphone drug issue case ibid circumstances considered lockett wood executions little probative value present purposes finally find appropriate respond principal dissent groundless suggestion decision tantamount allowing prisoners drawn quartered slowly tortured death actually burned stake post simply true principal dissent resort outlandish rhetoric reveals weakness legal arguments vi reasons judgment appeals tenth circuit affirmed ordered scalia concurring richard glossip et petitioners kevin gross et al writ certiorari appeals tenth circuit june justice scalia justice thomas joins concurring join opinion write respond justice breyer plea judicial abolition death penalty welcome groundhog day scene familiar petitioners sentenced die crimes committed including case one petitioner since put death raping murdering baby come asking us nullify sentences cruel unusual eighth amendment rely provision provision rely charged sovereign state murder afforded counsel tried jury peers tried twice determine whether guilty determine whether death appropriate sentence duly convicted sentenced granted right appeal seek postconviction relief first state federal acknowledging convictions unassailable ask us clemency though clemency give response also familiar vocal minority waving heads ream recent abolitionist studies superabundant genre though discovered lost folios shakespeare insist long last death penalty must abolished good mind history american republic ever suggested death penalty categorically impermissible reason obvious impossible hold unconstitutional constitution explicitly contemplates fifth amendment provides person shall held answer capital crime unless presentment indictment grand jury person shall deprived life without due process law nevertheless today justice breyer takes role abolitionists drama arguing text constitution two centuries history must yield years experience inviting full briefing continued permissibility capital punishment post dissenting opinion historically eighth amendment understood bar punishments added pain otherwise permissible capital sentence baze rees thomas concurring judgment rather bother troubling detail justice breyer elects contort constitutional text redefining cruel mean unreliable arbitrary causing excessive delays unusual include decline use proceeds offer white paper devoid meaningful legal argument even accepting justice breyer rewriting eighth amendment argument full internal contradictions must said says death penalty cruel unreliable convictions punishments unreliable moreover pressure police prosecutors jurors secure conviction claims increases risk wrongful convictions capital cases flows nature crime punishment follows commission post justice breyer acknowledges much crimes issue capital cases typically horrendous murders thus accompanied intense community pressure ibid pressure exist risk wrongful convictions horrendous cases converted equally horrendous cases reality innocent defendant infinitely better appealing death sentence sentence life imprisonment justice breyer acknowledges ourts state governors times likely exonerate defendant death sentence issue post capital convict obtain endless legal assistance abolition lobby legal favoritism abolitionist judges lifer languishes unnoticed behind bars justice breyer next says death penalty cruel arbitrary prove point points study cases measured murderer conduct system metrics compared egregiousness conduct defendants sentenced death egregiousness conduct defendants remaining cases sentenced death post aristotle aquinas hume knew moral philosophy neatly distilled vade mecum system metrics course egregiousness moral judgment susceptible rules importantly egregiousness crime one several factors render punishment condign culpability rehabilitative potential need deterrence also relevant required individualized consideration mitigating circumstances rather formulaic application egregiousness test questions contextual admit easy answers rely juries make judgments people crimes fact judgments may vary across cases inevitable consequence jury trial cornerstone judicial procedure punishment authorized law kill subject death fact defendants receive mercy jury renders underlying punishment cruel fact guilty individuals never apprehended never tried acquitted pardoned justice breyer third reason death penalty cruel entails delay thereby subjecting inmates long periods death row undermining penological justifications death penalty first point nonsense life without parole even lengthier period wait death row objection death row confining environment solution modifying environment rather abolishing death penalty argument delay undermines penological rationales death penalty insisting major alternative capital punishment namely life prison without possibility parole also incapacitates post justice breyer apparently forgets one plaintiffs case already prison committed murder landed death row justice breyer asserts whatever interest retribution might served death penalty currently administered interest served almost well sentence life prison without parole post goodness thinks death penalty much harsh hence much retributive keen get rid due respect whether death penalty life imprisonment constitute equivalent retribution question far judiciary pay grade perhaps justice breyer forgiving enlightened like kant believe death punishment taking life presume tell parents whose life forever altered brutal murder child life imprisonment punishment enough finally justice breyer speculates seem likely death penalty significant deterrent effect post seems likely statistical studies say see zimmerman state executions deterrence incidence murder applied econ estimated state execution deters approximately fourteen murders per year average dezhbakhsh rubin shepherd capital punishment deterrent effect new evidence postmoratorium panel data econ rev ach execution results average eighteen fewer murders per year sunstein vermeule capital punishment morally required acts omissions tradeoffs stan rev recent evidence deterrent effect capital punishment seems impressive especially light power federal judges live world apart vast majority americans work retire homes placid suburbia guards door confronted threat violence ever present many americans everyday lives suggestion incremental deterrent effect capital punishment seem significant reflects seems obliviousness needs others let people decide much incremental deterrence appropriate course delay problem making justice breyer concedes years capital sentences carried average two years less post tells us took average years carry death sentence happened intervening years nothing proliferation labyrinthine restrictions capital punishment promulgated interpretation eighth amendment empowered divine evolving standards decency mark progress maturing society trop dulles plurality opinion task eminently ill suited indeed past two decades justice breyer drum major parade invocation resultant delay grounds abolishing death penalty calls mind man sentenced death killing parents pleads mercy ground orphan amplifying surrealism argument justice breyer uses fact many abandoned capital punishment abandoned precisely costs suspect decisions imposed conclude unusual post caution reader use creative arithmetic justice breyer employs counting number use death penalty prepare next tax return outside world eighth amendment jurisprudence regarded misrepresentation math travel path justice breyer sets us consider constitutionality death penalty ask counsel also brief whether cases abandoned historical understanding eighth amendment beginning trop overruled case caused mischief jurisprudence federal system society comes mind justice breyer dissent living refutation trop assumption capacity recognize evolving standards decency time people voted exact death penalty punishment serious crimes time upheld decision time vocal minority insisted things changed radically post sought replace judgments people standards decency capital punishment presents moral questions philosophers theologians statesmen grappled millennia framers constitution disagreed bitterly matter reason handled way handled many controversial issues left people decide arrogating power overturn decision justice breyer reject death penalty rejects enlightenment thomas concurring richard glossip et petitioners kevin gross et al writ certiorari appeals tenth circuit june justice thomas justice scalia joins concurring agree petitioners eighth amendment claim fails claim foundation eighth amendment prohibits method execution deliberately designed inflict pain baze rees thomas concurring judgment petitioners make allegation oklahoma adopted lethal injection protocol add elements terror pain disgrace death penalty valid claim end case precedents predictably transformed federal courts boards inquiry charged determining practices executions internal quotation marks omitted necessitating painstaking factual inquiry undertakes today although continue believe broader interpretation eighth amendment advanced plurality opinion baze erroneous join opinion full correctly explains petitioners claim fails even controlling opinion write separately respond justice breyer dissent questioning constitutionality death penalty generally need said constitutional arguments justice breyer relies colleagues elsewhere refuted justice breyer assertion post death penalty country fallen short aspiration capital punishment reserved worst worst notion based implicit proportionality principle long discredited see harmelin michigan opinion scalia merits comment conclusion based analysis provides powerful case enforcing imaginary constitutional rule arbitrariness thrust justice breyer argument empirical studies performed death penalty abolitionists reveal assignment death sentences necessarily correspond egregiousness crimes instead appears correlated arbitrary factors locality crime committed relying studies determine constitutionality death penalty fails respect values implicit constitution allocation decisionmaking context donohue study justice breyer relies heavily measured egregiousness deathworthiness murders asking lawyers identify legal grounds aggravation case asking law students evaluate written summaries murders assign egregiousness scores based rubric designed capture standardize moral judgments donohue empirical evaluation connecticut death penalty system since unlawful racial gender geographic disparities empirical legal studies exercise ways approximates function performed jurors least one critical difference law students make moral judgments based written summaries sit hours days weeks evidence detailing crime opportunity assess credibility witnesses see remorse defendant feel impact crime victim family bear burden deciding fate another human drawn community whose sense security justice may torn asunder act callous disregard human life like appellate judges justices reviewing paper record side case life death reason choice life death within legal limits left jurors judges sit trial legal elites law students reason memorialized twice constitution article iii guarantees trial crimes except cases impeachment shall jury trial shall held state said crimes shall committed art iii cl sixth amendment promises criminal prosecutions accused shall enjoy right trial impartial jury state district wherein crime shall committed provisions ensure capital defendants given option sentenced jury peers collectively better situated make moral judgment life death products contemporary american law schools come surprise primary explanation regression analysis revealed gap egregiousness scores actual sentences race sex offender victim locality crime committed donohue supra see also post breyer dissenting surprising justice breyer considers factor evidence arbitrariness see ibid constitutional provisions quoted place decisions hands jurors trial courts located crime shall committed seem deliberately designed introduce factor event results studies inherently unreliable purport control egregiousness quantifying moral depravity process arbitrary mention dehumanizing one study explanation author assigned depravity points identify worst worst murderers proves point well mccord lightning still strikes brooklyn rev aggravating factor received point value based blameworth iness action associated killing prison guard instance earned defendant three depravity points improved case complete incapacitation killing police officer merited two considered dispassionately acts seem sine qua non worst criminals worry author reassures us many killers police officers accrue depravity points ways clearly put among worst criminals killing child age worth two depravity points act seems particularly heartless killing someone age earned murderer one although elderly victims tug hearts less children promise long life less killing make political statement worth three depravity points killing racial hatred two goes small sample moral judgments study rested shows unsuitable evidence serve basis judicial decision declaring unconstitutional punishment duly enacted federal government owe victims sort pseudoscientific assessment lives bad enough tell mother child murder worthy society ultimate expression moral condemnation based cardboard stereotypes cold mathematical calculations beyond comprehension decades seen capital crime considered sufficiently blameworthy merit death sentence even genuine constitutional errors justified vacatur sentence small sample applications stay execution come term alone proves point mark christeson due executed october role murder susan brouk young children adrian kyle raping brouk gunpoint accomplice drove family remote pond christeson cut brouk throat bone knife state christeson mo although bleeding profusely stayed alive long enough tell children loved watch christeson murdered son cutting throat twice drowning daughter pressing throat suffocated ibid christeson accomplice threw brouk alive barely breathing pond drown top dead children ibid granted stay execution christeson roper lisa ann coleman lucky executed september murdering girlfriend son davontae williams slowly starving death coleman state wl tex crim died davontae distinct injuries including cigarette burns ligature marks frame infections untreated wounds contributed cause death pneumonia johnny shane kormondy met end january two accomplices invaded home married couple took turns raping wife forcing perform oral sex gunpoint one point simultaneously put bullet husband head final rape kormondy secretary dept corrections egregious cases granted relief based unfounded eighth amendment claim example granted relief number egregious cases based decision atkins virginia exempting certain mentally retarded offenders death penalty last term granted relief man kidnaped beat raped murdered pregnant newlywed karol hurst also murdering unborn child day murdered sheriff deputy acting line duty hall florida slip atkins granted relief man carjacked eric michael nesbitt forced withdraw money bank drove secluded area shot multiple times leaving bleed death atkins commonwealth also misinterpreted eighth amendment grant relief egregious cases involving rape kennedy louisiana granted relief man sentenced death raping stepdaughter rape violent separated cervix back vagina causing rectum protrude vaginal structure tore entire perineum posterior fourchette anus evidence indicated petitioner spent least hour half attempting destroy evidence crime seeking emergency assistance even stepdaughter bled profusely injuries coker georgia plurality opinion granted relief petitioner escaped prison broken home young married couple newborn forced wife bind husband gagged husband underwear raped even told recovering recent childbirth kidnaped threatening husband coker state case crafted eighth amendment right free execution crime rape whether adult coker child kennedy supra recent decision finding eighth amendment prohibits execution committed crimes juveniles different see roper simmons although rejected claim less two decades earlier stanford kentucky decided revisit issue petitioner slain victim wanted murder someone believed get away months shy birthday randomly chosen victim shirley crook friends kidnaped middle night bound duct tape electrical wire threw bridge drown river state alabama brief case warned decision free death row number killers sentenced crimes committed juveniles brief state alabama et al amici curiae roper simmons mark duke example murdered father refusing loan truck father girlfriend two young daughters wanted witnesses crime shot father father girlfriend pointblank face pleaded lives tracked girls hiding places slit throats leaving alive several minutes drowned blood whatever one views permissibility wisdom death penalty doubt anyone disagree crimes egregious enough merit severest condemnation society offer constitutional problem fact criminals spared condemnation others amnesty came form unfounded claims arbitrariness nothing extent ill ease disparate outcomes seems best solution stop making eighth amendment claims ceaseless quest end death penalty undemocratic means breyer dissenting richard glossip et petitioners kevin gross et al writ certiorari appeals tenth circuit june justice breyer justice ginsburg joins dissenting reasons stated justice sotomayor opinion dissent holding rather try patch death penalty legal wounds one time ask full briefing basic question whether death penalty violates constitution relevant legal standard standard set forth eighth amendment constitution forbids inflict ion cruel unusual punishments amdt recognized claim punishment excessive judged standards prevailed lord jeffreys presided assizes bill rights adopted rather currently prevail atkins virginia indeed constitution prohibits various gruesome punishments common blackstone day see blackstone commentaries laws england listing mutilation dismembering among punishments nearly years ago upheld death penalty statutes view contained safeguards sufficient ensure penalty applied reliably arbitrarily see gregg georgia joint opinion stewart powell stevens jj proffitt florida joint opinion stewart powell stevens jj jurek texas joint opinion stewart powell stevens jj cf woodson north carolina plurality opinion striking mandatory death penalty roberts louisiana plurality opinion similar circumstances evidence death penalty application changed radically since given changes believe time reopen question thought constitutional infirmities death penalty healed effect delegated significant responsibility develop procedures protect constitutional problems almost years studies surveys experience strongly indicate however effort failed today administration death penalty involves three fundamental constitutional defects serious unreliability arbitrariness application unconscionably long delays undermine death penalty penological purpose perhaps result places within abandoned use shall describe considerations emphasizing changes occurred past four decades changes taken together years experience lead believe death penalty likely constitutes legally prohibited cruel unusual punishmen amdt cruel lack reliability specified finality death creates qualitative difference death penalty punishments including life prison woodson plurality opinion qualitative difference creates corresponding difference need reliability determination death appropriate punishment specific case ibid increasing evidence however death penalty applied lacks requisite reliability cf kansas marsh souter dissenting dna exonerations constitute new body fact considering constitutionality capital punishment one thing despite difficulty investigating circumstances surrounding execution crime took place long ago researchers found convincing evidence past three decades innocent people executed see liebman fatal injustice carlos deluna execution shows faster cheaper death penalty dangerous idea times june describing results investigation later published wrong carlos anatomy wrongful execution led authors conclude carlos deluna sentenced death executed six years arrest texas stabbing single mother death convenience store innocent grann trial fire texas execute innocent man new yorker describing evidence cameron todd willingham convicted ultimately executed apparently motiveless murder three children result invalid scientific analysis scene house fire killed children see also press release gov ritter grants posthumous pardon case dating back colorado governor granted full unconditional posthumous pardon joe arridy man iq executed according governor overwhelming body evidence indicates arridy innocent including false coerced confessions likelihood arridy pueblo time killing admission guilt someone else warden wilkie collins dead alive novel case wrongful convictions nebraska governor bob kerrey pardoned william jackson marion executed century earlier murder john cameron man later turned alive alleged victim cameron gone mexico avoid shotgun wedding another evidence death penalty wrongly imposed whether carried striking used word disturbing describe number instances individuals sentenced death later exonerated time evidence approximately exonerations capital cases atkins national registry exonerations online http aspx internet materials visited june available clerk case file use exoneration refer relief legal consequences capital conviction decision prosecutor governor new evidence defendant innocence discovered since number exonerations capital cases risen ibid national registry exonerations exonerations pp exonerations report defining exoneration accord death penalty information center dpic innocence list freed death row online http dpic innocence list calculating slightly different definition exoneration number exonerations since last year six death row inmates exonerated based actual innocence imprisoned years one almost years time exonerations national registry exonerations exonerations stories three men exonerated within last year illustrative dna evidence showed henry lee mccollum commit rape murder sentenced death katz eckholm dna evidence clears two men murder times last term ordered anthony ray hinton convicted murder receive hearings state exonerated earlier year forensic evidence used flawed hinton alabama per curiam blinder alabama man death row three decades freed state case erodes times apr glenn ford also convicted murder exonerated prosecutor admitted even time case tried evidence cleared glenn ford stroud lead prosecutor apologizes role sending man death row shreveport times mar three men spent years death row exonerated return examples infra furthermore exonerations occur far frequently capital convictions rather ordinary criminal convictions issue researchers calculated courts state governors times likely exonerate defendant death sentence issue nine times likely exonerate capital murder rather noncapital murder issue exonerations report nn degree must law governs capital cases complex degree must reflect fact courts scrutinize capital cases closely degree likely also reflects greater likelihood initial wrongful conviction view researchers conducted studies crimes issue capital cases typically horrendous murders thus accompanied intense community pressure police prosecutors jurors secure conviction pressure creates greater likelihood convicting wrong person see gross jacoby matheson montgomery patil exonerations crim gross frequency predictors false conviction know little new data capital cases empirical studies noting comparing exonerated death row capital defendants exonerated initial police investigations tended shorter exonerated see also garrett convicting innocent criminal prosecutions go wrong discussing common causes wrongful convictions generally including false confessions mistaken eyewitness testimony untruthful jailhouse informants ineffective defense counsel case cameron todd willingham example noted earlier executed despite likely innocence state bar texas recently filed formal misconduct charges lead prosecutor actions actions may contributed willingham conviction possley prosecutor accused misconduct death penalty case washington post mar glenn ford case prosecutor admitted partly responsible ford wrongful conviction issuing public apology ford explaining time ford conviction interested justice winning stroud supra factors may also play role one practice one serve capital jury willing impose death penalty see rozelle principled executioner capital juries bias benefits true bifurcation summarizing research concluding fifty years empirical investigation demonstrated death qualification skews juries toward guilt death note mandatory voir dire questions capital cases potential solution biases death qualification roger williams univ rev similar another general problem flawed forensic testimony see garrett supra federal bureau investigation fbi example recently found flawed microscopic hair analysis used capital cases review already executed fbi national press releases fbi testimony microscopic hair analysis contained errors least percent cases ongoing review apr see also hsu fbi admits errors trials false matches hair washington post apr district columbia death penalty five seven defendants cases flawed hair analysis testimony eventually exonerated light factors researchers estimate sentenced death actually innocent see gross hu kennedy rate false conviction criminal defendants sentenced death proceeding national academy sciences study death sentences estimating sentenced death actually innocent risinger innocents convicted empirically justified factual wrongful conviction rate crim examination dna exonerations death penalty cases suggesting analogous rate finally expand definition exoneration limited errors suggesting defendant actually innocent thereby also categorize erroneous instances courts failed follow legally required procedures numbers soar courts identified prejudicial errors capital cases gelman liebman west kiss broken system persistent patterns reversals death sentences empirical studies state courts direct postconviction review overturned sentences reviewed federal courts reviewing capital cases habeas corpus proceedings found error cases ibid research figures likely controversial full briefing allow us scrutinize care minimum suggest serious problem reliability suggest many instances courts sentence defendants death without complying necessary procedures suggest significant number cases death sentence imposed person commit crime see earley pink cadillac iq south carolina longer support death penalty rich rev come conclusion death penalty based false utopian premise false premise accuracy death penalty convictions executions earley oversaw executions even death penalty supporters push change guardian may earley presided executions virginia attorney general see ante scalia concurring apparently finding special constitutional problem arising fact execution innocent person irreversible unlike years ago plausible evidence unreliability perhaps due dna evidence stronger evidence sum significantly evidence today indicating courts sentence death individuals may well actually innocent whose convictions law view warrant death penalty application ii cruel arbitrariness arbitrary imposition punishment antithesis rule law reason justice potter stewart supplied critical votes holdings furman georgia per curiam gregg found death penalty unconstitutional administered death sentences cruel unusual way struck lightning cruel unusual people convicted crimes many reprehensible se petitioners among capriciously selected random handful upon sentence death fact imposed furman concurring opinion see also eighth fourteenth amendments tolerate infliction sentence death legal systems permit unique penalty wantonly freakishly imposed white concurring death penalty exacted great infrequency even atrocious crimes meaningful basis distinguishing cases imposed many cases death penalty reinstated acknowledged death penalty unconstitutional inflicted arbitrary capricious manner gregg joint opinion stewart powell stevens jj see also discretion afforded sentencing body matter grave determination whether human life taken spared discretion must suitably directed limited minimize risk wholly arbitrary capricious action godfrey georgia plurality opinion similar consequently sought make application death penalty less arbitrary restricting use justice souter called worst worst kansas marsh dissenting opinion see also roper simmons capital punishment must limited offenders commit narrow category serious crimes whose extreme culpability makes deserving execution internal quotation marks omitted kennedy louisiana citing roper supra despite gregg hope fair administration death penalty years experience make increasingly clear death penalty imposed arbitrarily without reasonable consistency legally necessary reconcile use constitution commands eddings oklahoma thorough studies death penalty sentences support conclusion recent study example examined death penalty sentences imposed connecticut state abolished death penalty donohue empirical evaluation connecticut death penalty system since unlawful racial gender geographic disparities empirical legal studies study reviewed treatment homicide defendants found instances connecticut law made defendant eligible death sentence courts imposed death sentence cases sustained appeal study measured egregiousness murderer conduct cases developing system metrics designed compared egregiousness conduct defendants sentenced death egregiousness conduct defendants remaining cases defendant though found guilty offense ultimately sentenced death application studies metrics made clear defendants indeed worst worst least within considered egregious remaining eight behavior worse behavior least many defendants total pool sentenced death studies indicate factors clearly affect application death penalty namely comparative egregiousness crime often studies show circumstances affect application death penalty race gender geography often numerous studies example concluded individuals accused murdering white victims opposed black minority victims likely receive death penalty see gao report senate house committees judiciary death penalty sentencing studies conducted found race victim influences capital murder charge death sentence finding remarkably consistent across data sets data collection methods analytic techniques shatz dalton challenging death penalty statistics furman mccleskey single county case study cardozo rev conclusion drawn plus studies conducted fewer still many studies found gender defendant gender victim makes difference citing many studies geography also plays important role determining sentenced death see simply permit death penalty others rather within death penalty state imposition death penalty heavily depends county defendant tried smith geography death penalty ramifications rev hereinafter smith see also donohue supra single important influence explaining whether defendant connecticut sentenced death whether crime occurred waterbury county example counties fewer counties country accounted approximately half death sentences imposed nationwide smith counties fewer counties country accounted death sentences imposed nationwide dpic death penalty minority counties produce death cases enormous costs accounts disparity studies indicate disparity reflects decisionmaking authority legal discretion ultimately power local prosecutor see goelzhauser prosecutorial discretion resource constraints budget allocations local decisions judicature barnes sloss thaman place matters empirical study prosecutorial cases rev analyzing missouri donohue empirical evaluation connecticut death penalty system connecticut marceau kamin foglia death eligibility colorado many called chosen rev colorado shatz dalton supra alameda county others suggest availability resources defense counsel lack thereof helps explain geographical differences see smith counties higher rates tend weaker public defense programs liebman clarke minority practice majority burden death penalty today ohio crim hereinafter liebman clarke similar see generally bright counsel poor death sentence worst crime worst lawyer yale still others indicate racial composition distribution within county plays important role see levinson smith young devaluing death empirical study implicit racial bias citizens six death penalty rev summarizing research point see also shatz dalton supra describing research finding rates lowest counties highest nonwhite population cf cohen smith racial geography federal death penalty rev arguing federal death penalty sought disproportionately federal district jury drawn dramatic racial difference county federal crime occurred finally studies suggest political pressures including pressures judges must stand election make difference see woodward alabama sotomayor dissenting denial certiorari slip noting empirical evidence suggests alabama judges reverse jury recommendations judges elected partisan proceedings appear succumbed electoral pressures harris alabama stevens dissenting similar gelman empirical studies elected state judges less likely reverse flawed verdicts capital cases small towns larger communities thus whether one looks research indicating irrelevant improper factors race gender local geography resources significantly determine receives death penalty whether one looks research indicating proper factors egregiousness determine receives death penalty legal conclusion must research strongly suggests death penalty imposed arbitrarily justice thomas catalogues tragic details various capital cases ante concurring opinion misses point every murder tragic unless return mandatory death penalty struck woodson constitutionality capital punishment rests limited application worst worst supra extensive body evidence suggests limited four decades ago believed possible interpret eighth amendment ways significantly limit arbitrary application death sentence see gregg joint opinion stewart powell stevens jj concerns expressed furman penalty death imposed arbitrary capricious manner met longer seems likely constitution prohibit use prosecutorial discretion joint opinion stewart powell stevens jj mccleskey kemp proved possible increase capital defense funding significantly smith politics death rev capital defenders notoriously underfunded particularly lead nation executions american bar assn aba guidelines appointment performance defense counsel death penalty cases guideline commentary rev ed hofstra rev ompensation attorneys death penalty representation remains notoriously inadequate courts easily inquire judicial motivation see harris supra moreover racial gender biases may unfortunately reflect deeply rooted community biases conscious unconscious despite legal irrelevance may affect jury evaluation mitigating evidence see callins collins blackmun dissenting denial certiorari perhaps surprising biases prejudices infect society generally influence determination sentenced death nevertheless remains jury task make individualized assessment whether defendant mitigation evidence entitles mercy see penry lynaugh lockett ohio opinion burger woodson plurality opinion finally since held comparative proportionality review constitutionally required pulley harris seems unlikely appeals prevent arbitrariness described see capital punishment proportionality review claims fairness lessons washington state rev pulley many repealed statutes requiring comparative proportionality review state high courts reduced proportionality review perfunctory exercise internal quotation marks omitted studies bear view reached considering thousands death penalty cases petitions course years see discrepancies find rational explanations cf godfrey plurality opinion principled way distinguish case death penalty imposed many cases one defendant committed murder receive death penalty due aggravators prior felony conviction robbery another defendant despite kidnapped raped murdered young mother leaving infant baby die scene crime compare state badgett pet cert badgett north carolina charbonneau andre edwards sentenced life prison murder wral mar online http one defendant committed murder receive death penalty due aggravators prior felony conviction acting recklessly gun another defendant despite committed triple murder killing young man pregnant wife compare commonwealth boxley pet shea judge gives consecutive life sentences triple murder philadelphia inquirer june matter one defendant participated scheme plus robbery receive death penalty another defendant despite stabbed wife times killed daughter son slept see donohue capital punishment connecticut comprehensive evaluation murders one execution pp online http instance sentences compared imposed state time question raised examples many give well research referred question justice stewart justice powell others raised course several decades imposition implementation death penalty seems capricious random indeed arbitrary defendant perspective receive sentence certainly find implemented equivalent struck lightning reconcile death penalty demands constitution first foremost insists upon rule law iii cruel excessive delays problems reliability unfairness almost inevitably lead third independent constitutional problem excessively long periods time individuals typically spend death row alive sentence death say delay part problem constitution demands create given special need reliability fairness death penalty cases eighth amendment must apply death penalty special force roper face severe sanction must fair opportunity show constitution prohibits execution hall florida slip time constitution insists every safeguard observed defendant life stake gregg joint opinion stewart powell stevens jj furman stewart concurring death differs forms criminal punishment degree kind woodson supra plurality opinion death finality differs life imprisonment prison term differs one year two procedural necessities take time implement unless abandon procedural requirements assure fairness reliability forced confront problem increasingly lengthy delays capital cases ultimately though legal causes may help explain mitigate harms caused delay consider first statistics individuals executed executions occurred average nearly years initially pronounced sentence death dpic execution list online http execution showing average delay years months death penalty average delay longer oral argument last year example state admitted last prisoners executed florida spent average nearly years death row execution tr oral arg hall florida length average delay increased dramatically years average delay sentencing execution two years see aarons inordinate delay death sentence execution constitute cruel unusual punishment seton hall rev ten years ago average delay years see dept justice bureau justice statistics bjs snell capital punishment statistical tables table rev hereinafter bjs stats last year average risen years dpic execution list supra nearly half inmates death row years present execution rates take years carry death sentences thus average person death row spend additional years executed bjs stats tables find reasons believe trend soon reversed lengthy delays create two special constitutional difficulties see johnson bredesen stevens statement respecting denial certiorari first lengthy delay especially cruel subjects death row inmates decades especially severe dehumanizing conditions confinement ibid gomez fierro stevens dissenting excessive delays sentencing execution constitute cruel unusual punishment prohibited eighth amendment see also lackey texas memorandum stevens respecting denial certiorari knight florida breyer dissenting denial certiorari second lengthy delay undermines death penalty penological rationale johnson supra thompson mcneil statement stevens respecting denial certiorari turning first constitutional difficulty nearly death penalty keep death row inmates isolation hours per day american civil liberties union aclu death dying solitary confinement death row july aclu report occurs even though aba suggested death row inmates housed conditions similar general population nations special rapporteur torture called global ban solitary confinement longer days see aba standards criminal justice treatment prisoners ed well documented prolonged solitary confinement produces numerous deleterious harms see haney mental health issues solitary supermax confinement crime delinquency cataloguing studies finding solitary confinement cause prisoners experience anxiety panic rage loss control paranoia hallucinations among many symptoms grassian psychiatric effects solitary confinement wash policy ven days solitary confinement predictably shift brain electroencephalogram eeg pattern toward abnormal pattern characteristic stupor delirium accord medley see also davis ayala ante kennedy concurring dehumanizing effect solitary confinement aggravated uncertainty whether death sentence fact carried recognized prisoner sentenced death confined penitentiary awaiting execution sentence one horrible feelings subjected time uncertainty whole medley supra describing delay mere four weeks past century quarter little changed respect except duration today must describe delays measured weeks decades supra moreover must consider death warrants issued revoked repeatedly see pet cert suárez medina texas pp filed fourteen separate occasions since suárez medina death sentence imposed informed time date manner death least eleven times asked describe disposal bodily remains lithwick cruel unusual slate apr online http john thompson seven death warrants signed exonerated see also news michael john parrish execution warrant signed governor corbett online http local former pennsylvania governor signed death warrants first years office even though pennsylvania carried execution since several inmates come within hours days execution later exonerated willie manning four hours scheduled execution mississippi stayed execution see robertson hours go execution postponed times apr two years later manning exonerated evidence including flawed testimony fbi hair examiner severely undermined nave state still want kill willie jerome manning jackson free press apr manning outlier case see martin randall adams dies freed help film times june randall adams stayed three days execution later exonerated davies white lies clarence lee brandley execution stayed twice days days later exonerated edds expendable man earl washington stayed days execution later exonerated furthermore given negative effects confinement uncertainty surprising many inmates volunteer executed abandoning appeals see aclu report rountree volunteers execution directions research grief culpability legal structures umkc rev executed dropped appeals volunteered aclu report account dropped appeals intolerable indeed one death row inmate later exonerated still said preferred die rather spend years death row pursuing exoneration strafer volunteering execution competency voluntariness propriety third party intervention crim surprising many inmates consider commit suicide confined death row florida attempted suicide others written great length constitutional problems delays create rather repeat facts arguments conclusions simply refer writings see johnson statement stevens delay subjects death row inmates decades especially severe dehumanizing conditions confinement furman brennan concurring long wait imposition sentence actual infliction death inevitable often exacts frightful toll solesbee balkcom frankfurter dissenting history murder onset insanity awaiting execution death sentence rare phenomenon people anderson cal collecting sources ruelty capital punishment lies execution pain incident thereto also dehumanizing effects lengthy imprisonment prior execution judicial administrative procedures essential due process law carried omitted district attorney suffolk dist watson mass braucher concurring death penalty unconstitutional state constitution part carried agonizing months years uncertainty see also riley attorney general jamaica lord scarman joined lord brightman dissenting execution inordinate delay infringe prohibition cruel unusual punishments bill rights precursor eighth amendment pratt attorney jamaica collecting cases finding inordinate delays unconstitutional equivalent state makwanyane cc afr catholic commission justice peace zimbabwe zim inordinate delays unconstitutional ing kingdom eur ser extradition murder suspect violate european convention human rights light risk delay execution burns similar second constitutional difficulty resulting lengthy delays delays undermine death penalty penological rationale perhaps irreparably rationale capital punishment punishment classically rests upon society need secure deterrence incapacitation retribution rehabilitation capital punishment definition rehabilitate course incapacitate offender major alternative capital punishment namely life prison without possibility parole also incapacitates see ring arizona breyer concurring judgment thus recognized death penalty penological rationale fact rests almost exclusively upon belief tendency deter upon ability satisfy community interest retribution see gregg joint opinion stewart powell stevens many studies examined death penalty deterrent effect found effect whereas others found lack evidence deters crime compare ante scalia concurring collecting studies finding deterrent effect sorensen wrinkle brewer marquart capital punishment deterrence examining effect executions murder texas crime delinquency evidence deterrent effect bonner fessenden absence executions special report death penalty share lower homicide rates times homicide rate higher radelet akers deterrence death penalty views experts crim criminologists believe existing research fails support deterrence justification donohue wolfers uses abuses empirical evidence death penalty debate stan rev evaluating existing statistical evidence concluding profound uncertainty existence deterrent effect recently national research council whose members drawn councils national academy sciences national academy engineering institute medicine reviewed years empirical evidence concluded insufficient establish deterrent effect thus used inform discussion deterrent value death penalty national research council deterrence death penalty nagin pepper eds accord baze rees stevens concurring judgment despite years empirical research area remains reliable statistical evidence capital punishment fact deters potential offenders recognize lack evidence proposition prove contrary see ring supra one might believe studies inconclusive suppose add studies fact today sentenced death actually executed even executions occur average nearly two decades death row dpic execution list supra still seem likely death penalty significant deterrent effect consider example actually happened inmates sentenced death years later executed convictions sentences overturned commuted died likely natural causes six remained death row bjs stats table example illustrates general trend inmates death sentence point executed convictions sentences overturned commuted died causes remainder still death row table see also baumgartner dietrich death penalty sentences overturned matters washington post blog monkey cage mar similar thus offender sentenced death two three times likely find sentence overturned commuted executed good chance dying natural causes execution exoneration take place word executions rare individual contemplating crime evaluating potential punishment know event faces potential sentence life without parole facts recurring must offsetting effect potential perpetrator fear death penalty even effect slight makes difficult believe given studies deterrence cited earlier rare event significantly deters horrendous crimes see furman white concurring said confidence society need specific deterrence justifies death many like circumstances life imprisonment shorter prison terms judged sufficient retribution retribution valid penological goal recognize surviving relatives victims horrendous crime perhaps community may find vindication execution community favors death penalty understandable interest representing voices see sarat mercy trial means stop execution illinois governor george ryan explained decision commute death sentences ground cruel unusual family members go legal limbo years relevant question however whether community sense retribution often find vindication death comes several decades crime committed valle florida breyer dissenting denial stay slip community different group people offenders victims families grown far older feelings outrage may subsided offender may found changed human sometimes repentance even forgiveness restore meaning lives ruined time community victims families know even without death offender serve decades prison sentence life without parole recognize course may always case sometimes community believes execution provide closure nevertheless delays low probability execution must play role calculation leads community insist death retribution already suggested may well attenuate community interest retribution point amount significant justification death penalty slip event believe whatever interest retribution might served death penalty currently administered interest served almost well sentence life prison without parole sentence every state permits see aclu living death life without parole nonviolent offenses finally fact lengthy delays undermines effort justify death penalty terms prevalence founders wrote eighth amendment founders wrote constitution delays execution took place soon sentencing see mackey hanging balance punishment movement new york state jefferson bill proportioning crimes punishments reprinted complete jefferson padover ed papers john marshall cullen johnson eds describing petition commutation based part delay pratt attorney jamaica kingdom collecting cases reasons shall describe infra return quick executions founding era upshot lengthy delays aggravate cruelty death penalty undermine jurisprudential rationale said death penalty fulfill goals deterrence retribution nothing purposeless needless imposition pain suffering hence unconstitutional punishment atkins quoting enmund florida internal quotation marks omitted see also gregg joint opinion stewart powell stevens jj sanction imposed totally without penological justification results gratuitous infliction suffering furman supra white concurring penalty negligible returns state patently excessive cruel unusual punishment violative eighth amendment thompson statement stevens respecting denial certiorari similar indeed justice lewis powell provided crucial vote gregg came much conclusion albeit retirement justice powell come convinced federal constitution outlaw death penalty rather left matter individual determine furman supra powell dissenting see also jeffries justice lewis powell describing powell time fervent partisan constitutionality capital punishment soon justice powell retirement chief justice rehnquist appointed chair committee addressing concerns delays capital cases ad hoc committee federal habeas corpus capital cases committee committee presented report congress justice powell testified elay robs penalty much deterrent value habeas corpus reform hearings senate committee judiciary justice powell according official biographer ultimately concluded capital punishment useful purpose among industrialized nations west maintaining death penalty enforced rarely deter important haggling delay seemingly endless litigation every capital case brought law disrepute jeffries supra short problem excessive delays led justice powell least part conclude death penalty unconstitutional said today delays much worse chief justice rehnquist appointed justice powell committee average delay sentencing execution years months compared years months today compare bjs greenfeld capital punishment table supra one might ask congress deal directly delay problem take steps shorten time sentence execution thereby mitigate problems raised answer shortening delay much difficult one might think part efforts risk causing procedural harms also undermine death penalty constitutionality one thing delays helped make application death penalty reliable recall case henry lee mccollum dna evidence exonerated years conviction katz eckholm times mccollum executed earlier lived see day dna evidence exonerated implicated another man man already serving life sentence rape murder committed weeks murder mccollum convicted ibid fact earlier denied review mccollum claim public dissent one justice mccollum north carolina yet full years denied review mccollum exonerated dna evidence significant number similar cases discussed earlier see also dpic innocence list supra nathson fields years paul house years nicholas yarris years anthony graves years damon thibodeaux years ricky jackson wiley bridgeman kwame ajamu exonerated crime years convictions addition exonerated ground innocent individuals whose sentences convictions overturned reasons discussed state federal courts found error capital cases reviewed see part supra many cases found individual merit death penalty special sense namely failed receive procedural protections law requires death penalty application eliminating protections one likely reduce delay protections eliminate eliminate protections established capital defendants able present sentencing judge jury mitigating circumstances lockett ohio state provide guidance adequate reserve application death penalty particularly serious murders gregg state provide adequate counsel warranted adequate expert assistance powell alabama wiggins smith ake oklahoma jury must find aggravating factors necessary impose death penalty ring see also breyer concurring judgment longer ensure state execute seriously intellectually disabled atkins eliminate requirement manner execution constitutional baze requirement inmate mentally competent time execution ford wainwright get rid criminal protections criminal defendants receive instance defendants claiming violation constitutional guarantees say due process law may seek writ habeas corpus federal courts see mcaninch answer questions surely see ante scalia concurring one might course argue courts particularly federal courts providing additional layers review apply requirements strictly causes delay difficult judges difficult anyone apply legal requirements punctiliously consequence failing may well death particularly death innocent person see zant stephens lthough every imperfection deliberative process sufficient even capital case set aside judgment severity sentence mandates careful scrutiny review colorable claim error kyles whitley ur duty search constitutional error painstaking care never exacting capital case internal quotation marks omitted thompson statement stevens judicial process takes time error rate capital cases illustrates necessity moreover review courts every level helps ensure reliability ordered anthony ray hinton receive hearings state see hinton alabama may well executed rather exonerated view legal system complexity federal system separate state federal courts constitutional guarantees commitment fair procedure special need reliability fairness capital cases combine make significant procedural reform unlikely practice reduce delays acceptable level fact creates dilemma death penalty system seeks procedural fairness reliability brings delays severely aggravate cruelty capital punishment significantly undermine rationale imposing sentence death first place see knight breyer dissenting denial certiorari one primary causes delay failure apply constitutionally sufficient procedures time initial conviction sentencing death penalty system minimizes delays undermine legal system efforts secure reliability procedural fairness world least nation death penalty least arguably serves legitimate penological purposes procedural system least arguably seeks reliability fairness death penalty application simple fact demonstrated convincingly past years strongly supports claim death penalty violates eighth amendment death penalty system unreliable procedurally unfair violate eighth amendment woodson plurality opinion hall slip roper system reliable fair application death penalty serve legitimate penological purpose furman white concurring gregg supra joint opinion stewart powell stevens jj atkins supra iv unusual decline use death penalty eighth amendment forbids punishments cruel unusual last year seven carried execution perhaps importantly last two decades imposition implementation death penalty increasingly become unusual illustrate significant decline use death penalty several ways appropriate starting point concerns trajectory number annual death sentences nationwide present day made clear modifying legislation reinstate death penalty people sentenced death bjs stats table many revised death penalty laws meet furman requirements number death sentences increased persons average sentenced death year bjs stats tables approximately years ago numbers began decline declined rapidly ever since see appendix infra showing sentences persons sentenced death bjs stats table last year persons sentenced death dpic death penalty year end report trend significant decline last years also holds true respect number annual executions see appendix infra showing executions people executed bjs data collection national prisoner statistics program bjs prisoner statistics available clerk case file last year number dpic death penalty supra next one consider data often deciding whether punishment practice constitutionally speaking unusual looked number engaging practice atkins roper supra respect number active death penalty fallen dramatically decided furman death penalty lawful nine abolished mandery wild justice death resurrection capital punishment america today abolished death penalty along district columbia although prospectively see dpic without death penalty online http maintain death penalty books execution taken place eight years arkansas last execution california colorado kansas executions since death penalty reinstated montana nevada new hampshire executions since death penalty reinstated north carolina oregon pennsylvania wyoming dpic executions state year online http accordingly either formally abolished death penalty conducted execution eight years conducted least one execution past eight years conducted fewer five time making execution fairly rare event bjs prisoner statistics delaware idaho indiana kentucky louisiana south dakota tennessee utah washington leaves fair say capital punishment unusual three texas missouri florida accounted executions nationwide see dpic number executions state region since online http indeed last year seven conducted execution dpic executions state year supra dpic death sentences state year online http www deathpenaltyinfo death sentences words one executed terms population ask many americans live state least occasionally carries execution least one within prior three years answer two decades ago today number see appendix infra time use death penalty become increasingly concentrated geographically figures relevant decisions impose death penalty typically take place county level see supra sentencing figures show america counties accounted approximately death sentences imposed liebman clarke cf counties nation population imposed death sentences early death penalty actively practiced small number counties counties imposed death sentences approximately one per year see appendix infra counties colored red citing ford death penalty last stand atlantic apr recent data show practice diminished yet june counties imposed five death sentences see appendix infra short number active death penalty counties small getting smaller overall statistics executions bear executions america counties liebman clarke cf ibid counties less nation population carried half executions sum look effectively death penalty additional execution rare unusual three account executions look population nation lives state carried execution last three years look counties effectively death penalty seems fair say unusual find capital punishment least consider nation whole see furman white concurring executions infrequently carried cease credible deterrent measurably contribute end punishment criminal justice system imposition penalty reaches certain degree infrequency doubtful existing general need retribution measurably satisfied moreover said much number significant consistency direction change roper quoting atkins supra finding significant five abandoned death penalty juveniles four legislatively one judicially since decision stanford kentucky judged way capital punishment indeed become unusual seven abolished death penalty last decade including quite recently nebraska dpic without death penalty supra several come within single vote eliminating death penalty seelye measure repeal death penalty fails single vote new hampshire senate times apr dennison house deadlocks bill abolish death penalty montana billings gazette see also offredo delaware senate passes death penalty repeal bill delaware news journal apr eleven noted earlier executed anyone eight years supra several formally stopped executing inmates see yardley oregon governor says allow executions times oregon governor colorado exec order may colorado lovett executions suspended governor washington times washington begley pennsylvania stops using death penalty time pennsylvania see also associated press ohio executions rescheduled ohio moreover direction change consistent past two decades state without death penalty passed legislation reinstate penalty see atkins supra dpic without death penalty supra indeed even many associated death penalty remarkable shifts occurred texas state carries executions number executions fell number death sentences fell thus far dpic executions state year supra bjs snell capital punishment table hereinafter bjs stats bjs stats table von drehle bungled executions backlogged courts three reasons modern death penalty failed experiment time june similarly dramatic declines present virginia oklahoma missouri north carolina bjs stats table bjs stats table circumstances perhaps reflect fact majority americans asked choose death penalty life prison without parole choose latter wilson support death penalty still high washington post govbeat june online www washingtonpost com blogs govbeat wp support death see also ali report council membership matter death penalty apr withdrawing model penal code section capital punishment section code part doubts american law institute recommend procedures address concerns administration death penalty cf gregg joint opinion stewart powell stevens jj relying part model penal code conclude carefully drafted statute satisfy arbitrariness concerns expressed furman rely primarily upon domestic foreign events pointing changes circumstances tend justify claim death penalty constitutionally speaking unusual circumstances sufficient warrant reconsideration death penalty constitutionality note however many nations indeed members nations formally abolished death penalty additional abolished practice oakford un vote death penalty highlights global abolitionist leaves us stranded vice news online https news vice com article un vote death penalty highlights countries world carried execution international commission death penalty review pp executions carried europe central asia country americas execute inmate eight countries executed individuals china iran iraq saudi arabia somalia sudan yemen almost known executions took place three countries iran iraq saudi arabia amnesty international death sentences executions figure include china large population precise data obtained recognize strong counterargument favors constitutionality leave matter people acting democratically legislatures constitution foresees country make important decisions democratically nations abandoned death penalty done legislation judicial decision legislators unlike judges free take account matters monetary costs claim relevant see berman nebraska lawmakers abolish death penalty narrowly overriding governor veto washington post blog post nation may listing cost one reasons nebraska legislators recently repealed death penalty state cf california commission fair administration justice report recommendations administration death penalty california june death penalty costs california million per year comparable system life imprisonment without parole cost million per year online http dáte high price killing killers palm beach post cost execution million cost life imprisonment without parole florida answer matters discussed lack reliability arbitrary application serious irreversible punishment individual suffering caused long delays lack penological purpose quintessentially judicial matters concern infliction indeed unfair cruel unusual infliction serious punishment upon individual recognize sense turned congress state legislatures search standards increase fairness reliability imposing death penalty legislatures responded last four decades considerable evidence accumulated responses worked thus left judicial responsibility eighth amendment sets forth relevant law must interpret law see marbury madison cranch hall slip exercise independent judgment judicial duty made clear constitution contemplates end judgment brought bear question acceptability death penalty eighth amendment slip quoting coker georgia plurality opinion see also thompson oklahoma plurality opinion reasons set forth opinion believe highly likely death penalty violates eighth amendment least call full briefing basic question respect dissent appendices death sentences imposed executions percentage population conducted execution within prior years year percentage sotomayor dissenting richard glossip et petitioners kevin gross et al writ certiorari appeals tenth circuit june justice sotomayor justice ginsburg justice breyer justice kagan join dissenting petitioners three inmates oklahoma death row challenge constitutionality state lethal injection protocol state plans execute petitioners using three drugs midazolam rocuronium bromide potassium chloride latter two drugs intended paralyze inmate stop heart torturous manner causing burning searing pain thus critical first drug midazolam supposed render keep inmate unconscious petitioners claim midazolam expected perform function presented ample evidence showing state planned use drug poses substantial constitutionally intolerable risks nevertheless today turns aside petitioners plea least allowed stay execution seek prove midazolam inadequacy achieves result two ways first deferring district decision credit scientifically unsupported implausible testimony single expert witness second faulting petitioners failing satisfy wholly novel requirement proving availability alternative means executions counts errs result leaves petitioners exposed may well chemical equivalent burned stake eighth amendment succinctly prohibits infliction cruel unusual punishments seven years ago baze rees addressed application mandate kentucky lethal injection protocol time kentucky like least death penalty utilized series three drugs perform executions sodium thiopental barbiturate sedative induces deep comalike unconsciousness given amounts used lethal injection pancuronium bromide paralytic agent inhibits movements stops respiration potassium chloride interferes electrical signals stimulate contractions heart inducing cardiac arrest plurality opinion roberts baze undisputed absent proper dose sodium thiopental substantial constitutionally unacceptable risk suffocation administration pancuronium bromide pain injection potassium chloride given conscious inmate pancuronium bromide leave asphyxiated unable demonstrate outward sign distress potassium chloride cause excruciating pain stevens concurring judgment baze petitioners conceded administered intended kentucky method execution nevertheless result humane death plurality opinion proper administration sodium thiopental eliminates meaningful risk prisoner experience pain subsequent injections pancuronium potassium chloride based premise ultimately rejected challenge kentucky protocol plurality opinion concluding state procedures administering three drugs ensured objectively intolerable risk severe pain internal quotation marks omitted many years oklahoma performed executions using three drugs issue baze baze decided however primary producer sodium thiopental refused continue permitting drug used executions ante like number oklahoma opted substitute pentobarbital another barbiturate place march shortly two scheduled executions oklahoma found unable secure drug app state rescheduled executions following month give time locate alternative anesthetic less week group officials oklahoma department corrections attorney general office selected midazolam serve replacement pentobarbital soon thereafter oklahoma used midazolam first time execution clayton lockett execution go smoothly ten minutes intravenous iv line set lockett groin area milligrams midazolam administered attending physician declared lockett unconscious paralytic potassium chloride administered however lockett awoke ibid various witnesses reported lockett began writhe restraints saying mind something wrong drugs working internal quotation marks omitted state officials ordered blinds lowered halted execution minutes later approximately minutes execution began lockett pronounced dead state stayed future executions sought determine gone wrong lockett five months later state released investigative report identifying flaw iv line principal difficulty iv failed fully deliver lethal drugs lockett veins autopsy determined however concentration midazolam lockett blood sufficient render average person unconscious response report state modified lethal injection protocol new protocol contains number procedures designed guarantee members execution team able insert iv properly charges ensuring inmate unconscious protocol continues authorize use formula used kill lockett though increase intended dose midazolam milligrams milligrams state indicated plans use drug combination upcoming executions subject immaterial substitution paralytic agents ante june inmates oklahoma death row filed suit respondent prison officials challenging constitutionality oklahoma method execution state released revised execution protocol four inmates whose executions imminent charles warner along petitioners richard glossip john grant benjamin cole moved preliminary injunction contended among things state intended use midazolam violate eighth amendment unlike sodium thiopental pentobarbital drug incapable producing state unawareness reliably maintained either two drugs injected amended complaint district held evidentiary hearing petitioners relied principally testimony two experts david lubarsky anesthesiologist larry sasich doctor pharmacy state turn based case testimony roswell evans also doctor pharmacy great extent experts testimony overlapped three experts agreed midazolam class sedative drugs known benzodiazepines class includes valium xanax analgesic effects app lubarsky sasich evans agreed midazolam used render someone unconscious approved federal drug administration fda use fact used sole drug produce maintain anesthesia surgical proceedings evans see lubarsky sasich finally three experts recognized midazolam subject ceiling effect means point increasing dose drug result greater effect lubarsky sasich evans experts opinions diverged however crucial questions ceiling effect operates whether prevent midazolam keeping condemned inmate unconscious second third lethal injection drugs administered lubarsky testified benzodiazepines midazolam may like barbiturate drugs sodium thiopental pentobarbital induce unconsciousness inhibiting neuron function materially different way specifically lubarsky explained barbiturates benzodiazepines initially cause sedation facilitating binding naturally occurring chemical called acid gaba gaba receptors impedes flow electrical impulses neurons central nervous system higher doses barbiturates also act gaba substitute mimic effects ibid contrast benzodiazepines lack mimicking function means effect capped lower level sedation ibid critically according lubarsky ceiling midazolam sedative effect reached full anesthesia achieved ibid thus view midazolam unconsciousness sufficient minor procedure tr preliminary injunction hearing tr incapable keeping someone insensate immobile face noxious stimuli including extreme pain discomfort associated administration second third drugs oklahoma lethal injection protocol app sasich endorsed lubarsky description ceiling effect offered similar reasons reaching conclusion see support assertions experts cited variety evidence lubarsky emphasized particular arizona execution joseph wood conducted using midazolam drug hydromorphone rather cocktail oklahoma intends despite administered milligrams midazolam wood continued breathing moving nearly two hours according lubarsky occurred extremely deep levels anesthesia experts also cited various scientific articles textbooks support conclusions instance lubarsky relied study measuring brain activity rats administered midazolam showed drug impact significantly tailed higher doses see hovinga et effect relationship midazolam aging rats british pharmacology fig also pointed pharmacology textbook confirmed description benzodiazepines barbiturates produce effects see stoelting hillier survey article concluding idazolam used alone maintain adequate anesthesia reves fragen vinik greenblatt midazolam pharmacology uses anesthesiology reves part sasich referred separate survey article similarly recognized described ceiling effect benzodiazepines subject see saari oukari ahonen olkkola enhancement gabaergic activity neuropharmacological effects benzodiazepines therapeutic use anesthesiology pharamacological rev saari contrast evans state expert asserted dose midazolam render person unconscious remainder execution procedure app rested conclusion two interrelated propositions first observing therapeutic dose midazolam treat anxiety less milligrams adult evans emphasized oklahoma planned administration milligrams drug least times normal therapeutic dose ibid acknowledged studies done administering much midazolam anybody noted deaths occurred doses low milligrams per kilogram milligrams adult contended dose cause death within less hour conclusion characterized essentially extrapolation toxic effect see second explaining reconciled opinion evidence midazolam ceiling effect evans testified gaba receptors found across entire body midazolam ceiling effect limited spinal cord ceiling effect higher level brain consequently view increase dose midazolam linear effect going continue get impact higher doses drug eventually paralyzing brain evans also understood chemical source midazolam ceiling effect somewhat differently petitioners experts although agreed midazolam produces effect binding gaba receptors appeared believe midazolam produced sedation inhibiting gaba attaching gaba receptors promoting gaba sedative effects thus asked lubarsky description ceiling effect evans characterized phenomenon stemming competitive nature substances trying attach gaba receptors evans cited scholarly research support opinions instead appeared rely primarily two sources web site material safety data sheet produced midazolam manufacturer see simply contained general information covered experts areas agreement district denied petitioners motion preliminary injunction began making series factual findings regarding characteristics midazolam use oklahoma execution protocol relevant district found proper administration milligrams midazolam make virtual certainty individual sufficient level unconsciousness resist noxious stimuli occur application second third drugs respecting petitioners contention ceiling effect prevents increase dosage corresponding incremental effect anesthetic depth district concluded evans testified persuasively whatever ceiling effect midazolam may respect anesthesia takes effect spinal cord level ceiling effect respect ability milligram dose midazolam effectively paralyze brain phenomenon anesthesia effect shutting respiration eliminating individual awareness pain made findings district held petitioners shown likelihood success merits eighth amendment claim two independent reasons first determined petitioners failed establish proceeding execution basis revised protocol presents objectively intolerable risk harm second district held petitioners unlikely prevail identified available means executed requirement understood baze impose district concluded state ha affirmatively shown sodium thiopental pentobarbital alternatives petitioners even alluded available state appeals tenth circuit affirmed warner gross like district held petitioners unlikely prevail merits failed prove existence available alternatives event continued unable conclude district factual findings clearly erroneous thus petitioners also failed establish use midazolam executions creates demonstrated risk severe pain ibid petitioners charles warner filed petition certiorari application stay executions denied stay application charles warner executed january see warner gross sotomayor dissenting denial certiorari subsequently granted certiorari request state stayed petitioners pending executions ii begin second two holdings district properly found petitioners demonstrate likelihood showing oklahoma execution protocol poses unconstitutional risk pain reaching conclusion sweeps aside substantial evidence showing midazolam may able induce unconsciousness utilized maintain unconsciousness face agonizing stimuli instead like district finds comfort evans wholly unsupported claims milligrams midazolam paralyz brain holding disregards objectively intolerable risk severe pain like review clear error district finding milligrams midazolam render someone sufficiently unconscious resist noxious stimuli occur application second third drugs ante quoting app unlike however without abdicating duty examine critically factual predicates district finding namely evans testimony midazolam ceiling effect spinal cord level milligram dose midazolam therefore effectively paralyze brain sure observes scientific testimony may times lie boundaries federal courts expertise see ante purported expert says something make especially important constitutional rights stake federal district courts must carefully evaluate premises evidence scientific conclusions based appellate courts must ensure courts fact carefully considered evidence presented clear error exists although evidence support finding reviewing entire evidence left definite firm conviction mistake committed gypsum given numerous flaws evans testimony little doubt district clearly erred relying begin evans identified scientific literature support opinion regarding midazolam properties doses apart material safety data sheet relevant insofar suggests low dose midazolam may occasionally toxic see ante issue discuss evans testimony seems based web site may right petitioners identify incorrect statements evans relied ante statements supported critically disputed aspects evans opinion anything web site supported petitioners contentions expressly cautioned midazolam hould used alone maintenance anesthesia app pet cert contained warning excessive dose midazolam paralyze brain see importantly nothing matter source record corroborated evans key testimony midazolam ceiling effect limited spinal cord pertain brain indeed state appears disavowed evans theory refraining even mentioning brief despite fact district expressly relied testimony basis finding larger doses midazolam greater anesthetic effects app likewise assiduously avoids defending theory likely aspect evans testimony unsupported directly refuted studies articles cited drs lubarsky sasich experts relied academic texts describing benzodiazepines ceiling effect explaining prevents drugs rendering person completely insensate see stoelting hillier describing midazolam ceiling effect contrasting drug barbiturates saari observing abolishment perception environmental stimuli usually generated one study made clear ceiling effect apparent brain see scientific sources also appear demonstrate evans theory midazolam ceiling effect limited spinal cord premised basic misunderstanding midazolam mechanism action say appear sources unclear midazolam operates plainly state midazolam functions promoting gaba inhibitory effects central nervous system see stoelting hillier instead use appear discerning rationale underlying evans testimony difficult theory might however explained least part apparent belief rather promoting gaba inhibitory effects midazolam produces sedation compet ing gaba thus inhibit ing gaba effect app regardless need delve deeply evans alternative scientific reality suffices say extent evans testimony based understanding source midazolam pharmacological properties understanding wrong inconsistencies inaccuracies go heart evans expert opinion key components professed belief one extrapolate known midazolam effect low doses conclude drug paralyz brain oklahoma planned dose three experts recognized scientific testing use amount midazolam conjunction particular lethal injection drugs see ante app lubarsky sasich evans reason correctly observes extrapolation reasonable ante simply extrapolation may reasonable even required mean every conceivable method extrapolation credited estimates stemming purported extrapolation worthy belief evans view milligrams midazolam used induce unconsciousness app drug generally produce effect significantly larger dose milligrams induce unconsciousness allow maintenance face extremely painful stimuli ultimately even cause death words increase dose midazolam linear effect going continue get impact higher doses drug however ceiling respect midazolam effect brain petitioners experts established simplistic logic viable context necessarily better evans plainly wrong presume evans basis extrapolation led conclude milligrams midazolam paralyz brain even divorced scientific evidence logic emphasized midazolam known cause approximately deaths evans asserted opinion regarding efficacy oklahoma planned use drug represented essentially extrapolation toxic effect emphasis added see thus evans appeared believe say appeared rationale clear midazolam caused deaths necessarily cause complete unconsciousness death especially high doses evans also thought lubarsky confirmed midazolam fatalities occurred low doses well expert said produce unconsciousness see deaths thus seem represent rare unfortunate side effects one expect see drug normal therapeutic doses provide indication effect one expect midazolam brain substantially higher doses deaths occur almost product one might well say people occasionally die eating one peanut one hundred peanuts necessarily induce coma death sum evans conclusions entirely unsupported study source contradicted extrinsic evidence proffered petitioners inconsistent scientific understanding midazolam properties apparently premised basic logical errors given glaring flaws district acceptance evans claim milligrams midazolam paralyz brain credited case two permissible views evidence district chose one rather one trial judge credited one two witnesses even though witness failed tell coherent facially plausible story contradicted extrinsic evidence anderson bessemer city words case district clearly erred see ibid setting aside district erroneous factual finding milligrams midazolam necessarily paralyze brain question whether nevertheless correct hold petitioners failed demonstrate use midazolam poses objectively intolerable risk severe pain see baze plurality opinion internal quotation marks omitted hold made showing stark contrast evans petitioners experts able point objective evidence indicating midazolam serve effective anesthetic render person insensate pain caused second third lethal injection drugs ante observed experts cited multiple sources supporting existence midazolam ceiling effect evidence alone provides ample reason doubt midazolam efficacy prevail claim petitioners need establish intolerable risk pain certainty see baze state attempting use midazolam produce effect drug never previously demonstrated produce despite studies indicating point increasing dose actually increase drug effect state thus proceeding face real risk drug work manner claims moreover perhaps importantly record provides good reason think risk substantial insists petitioners failed provide probative evidence whether midazolam ceiling effect occurs level dose point drug effect rendering person insensate pain ante emphasizes lubarsky unable say dose ceiling effect occurs estimate robably milligrams ante quoting app precise dose midazolam reaches ceiling effect irrelevant dose drug words render person insensate pain ante critical point lubarsky quite explained drug work produce lack consciousness noxious stimuli applied sufficient produce surgical plane anesthesia human beings app also noted drug never used never used sole anesthetic give anesthesia surgery asserted drug approved fda sole anesthetic use fairly large doses sufficient reach ceiling effect produce induction unconsciousness patients responded surgery thus lubarsky may able identify whether effect reached milligrams higher threshold specify level midazolam reliably keep inmate unconscious second third drugs assertions amply supported evidence manner midazolam used three experts agreed midazolam utilized sole sedative minor procedures evans example acknowledged midazolam may used sole drug procedures terribly invasive even generally see used combination narcotic though observes sasich believed midazolam used medical procedures like colonoscopies gastroscopies ante insisted procedures necessarily painful big jump conclude midazolam effective maintain unconsciousness throughout execution tr indeed record provides reason think procedures cause excruciating pain remotely comparable produced second third lethal injection drugs oklahoma intends use painful procedures consensus also clear midazolam used sole drug maintain unconsciousness see app lubarsky sasich evans one might infer fact midazolam used sole anesthetic serious procedures used drawing inference unnecessary petitioners experts invoked sources expressly stating much particular lubarsky pointed survey article cited four separate authorities declared idazolam used alone maintain adequate anesthesia reves see also stoelting hillier explaining midzolam used induction anesthesia combination drugs may used maintenance anesthesia emphasis added evidence alone sufficient one wanted support conclusions provided lockett wood executions procedural flaws marred lockett execution created conditions unintended grotesque experiment midazolam efficacy due problems iv line lockett fully paralyzed second third drugs administered however administered enough midazolam render average person unconscious district found app lockett awoke began writhe speak demonstrated critical difference midazolam ability render inmate unconscious ability maintain inmate state insists lockett execution involved milligrams midazolam ante explained previously necessarily better given midazolam ceiling effect wood execution perhaps even probative despite given milligrams midazolam wood gasped snorted nearly two hours reactions according lubarsky inconsistent wood fully anesthetized app belie claim lesser dose milligrams somehow suffice attempts distinguish wood execution ground timing arizona administration midazolam different ante lubarsky testified matter whether wood execution midazolam introduced multiple doses drug sufficient half life effect cumulative app see also saari midazolam elimination ranges fact wood dose midazolam paired hydromorphone rather paralytic potassium chromide see ante appear relevance use analgesic drug may meant wood experience degree searing pain inmate executed oklahoma protocol may face contrast florida use protocol executions see ante citing brief state florida amicus curiae tells us virtually nothing although executions featured obvious mishaps key word obvious protocol involves administration powerful paralytic drs sasich lubarsky explained impossible tell whether condemned inmate fact remained unconscious app see also baze stevens concurring judgment even executions moreover indications inmates possible awareness see brief state alabama et al amici curiae describing florida executions noting allegedly involved blinking movement administration three drugs finally none state safeguards administering drugs seem mitigate substantial risk midazolam work contends see ante protections ensuring officials properly secured viable iv site enable midazolam effect chemically incapable indication state monitoring inmate consciousness able anticipate whether inmate remain unconscious second third drugs administered one questions whether midazolam induce unconsciousness problem lockett execution vividly illustrates unconscious inmate may awakened pain respiratory distress caused administration second third drugs point even possible determine whether inmate conscious dubious given use paralytic already late presumably reasons tenth circuit characterized district reliance procedural mechanisms relevant rejection petitioners claims regarding inherent characteristics midazolam warner disregards record evidence midazolam inadequacy also fails fully appreciate procedural posture case arises petitioners accorded full hearing merits claim granted abbreviated evidentiary proceeding began less three months state issued amended execution protocol even opportunity present rebuttal evidence evans testified sought preliminary injunction thus required prove claim show likely succeed merits see winter natural resources defense council hill mcdonough perhaps state prevail full hearing though require evans unsupported testimony preliminary injunction stage however petitioners presented compelling evidence suggesting midazolam work state intends state contrast offered absolutely contrary evidence worth crediting petitioners thus least likely prove due midazolam inherent deficiencies constitutionally intolerable risk awake yet unable move chemicals known cause excruciating pain course veins baze stevens concurring judgment iii determination use midazolam poses objectively intolerable risk severe pain factually wrong conclusion petitioners challenge also fails identified available alternative means state may kill legally indefensible long recognized certain methods execution categorically first confronted eighth amendment challenge method execution wilkerson utah although wilkerson approved particular method issue firing squad made clear public dissection burning alive punishments torture line unnecessary cruelty forbidden eighth mendment constitution eleven years later rejecting challenge first proposed use electric chair reiterated punishment prescribed offense laws state manifestly cruel unusual burning stake crucifixion breaking wheel like duty courts adjudge penalties within constitutional prohibition kemmler century since members often cause debate full scope eighth amendment prohibition cruel unusual punishment see furman georgia little dispute least precludes imposition barbarous physical punishments rhodes chapman see solem helm burger dissenting baze thomas concurring judgment harmelin michigan opinion scalia question amendment prohibits inherently barbaric punishments circumstances graham florida emphasis added simply stated eighth amendment categorically prohibits infliction cruel unusual punishments penry lynaugh emphasis added today however convert categorical prohibition conditional one method execution intolerably painful even point chemical equivalent burning alive holds unconstitutional known available alternative method execution ante deems baze foreclose argument contrary ante baze held thing first place cites plurality opinion baze support requirement see ibid even assuming baze plurality set forth requirement none members whose concurrences necessary sustain baze judgment articulated similar view see stevens concurring judgment thomas concurring judgment breyer concurring judgment general holding may viewed position taken members concurred judgments narrowest grounds marks internal quotation marks omitted observes ante opinion justice thomas joined justice scalia took broadest position respect degree intent state officials must order violated eighth amendment concluding method execution deliberately designed inflict pain one simply designed deliberate indifference risk severe pain unconstitutional thomas concurring judgment understanding eighth amendment intent requirement unrelated thus broader narrower requirement divines baze position plaintiff challenging method execution eighth amendment must prove availability alternative means execution represent views majority holding baze cts dynamics america event even baze plurality opinion provides support proposition sure opinion contains following sentence condemned must show risk substantial compared known available alternatives meaning key sentence limits requirement imposed made clear sentence directly preceding stay execution may granted grounds asserted unless condemned prisoner establishes state lethal injection protocol creates demonstrated risk severe pain ibid emphasis added baze premise petitioners eighth amendment claim identified significant risk harm kentucky protocol eliminated adopting alternative procedures basic theory even risk pain say risk objectively intolerable obvious alternative reduce risk see brief petitioners baze rees view severity pain risked ease avoided petitioners required show high likelihood suffer pain thus grounds asserted relief baze state protocol intolerably risky given alternative procedures state employed addressing claim baze plurality clarified condemned prisoner successfully challenge state method execution merely showing slightly marginally safer alternative instead succeed challenge type comparative risk must substantial nowhere plurality suggest challenges state method execution require sort analysis recognizing relevance available alternatives concluding absence precludes claimant showing chosen method carries objectively intolerable risks example prison officials chose method execution chance causing lingering excruciating pain certainly risk objectively intolerable whether officials ignored methods making choice irrespective existence alternatives risks grave violates contemporary standards decency expose anyone unwillingly helling mckinney emphasis original baze plurality statement regarding condemned inmate ability point available alternative means execution pertained challenges premised existence alternatives evidenced opinion failure distinguish even mention unanimous decision hill mcdonough hill held plaintiff challenging state method execution need identif alternative authorized method execution true notes ante hill context addressing pleading standard rejecting proposed requirement saw basis mposition heightened pleading requirements confirms hill view availability alternative means execution element eighth amendment claim requiring plaintiff plead element meant imposing heightened standard rather entirely consistent traditional pleading requirements ibid see ashcroft iqbal baze plurality opinion understood carelessly tossed aside hill underlying premise less two years later reengineering baze support newfound rule appears rely flawed syllogism death penalty constitutional reasons must means accomplishing thus available method execution must constitutional see ante even accepting death penalty abstract consistent evolving standards decency see ante breyer dissenting conclusion follow constitutionality death penalty may inform conception degree pain render particular method imposing unconstitutional see baze plurality opinion ome risk pain inherent method execution clear constitution demand avoidance risk pain method execution barbarous rhodes involve torture lingering death kemmler become less method currently available state available means conducting execution constitute cruel unusual punishment conducting execution constitute cruel usual punishment nothing compels state perform execution get constitutional free pass simply desires deliver ultimate penalty ends justify means state wishes carry execution must subject constraints constitution imposes including obligation ensure chosen method cruel unusual certainly condemned duty devise pick constitutional instrument death reasons requirement leads patently absurd consequences petitioners contend oklahoma current protocol barbarous method punishment chemical equivalent burned alive new rule matter whether state intended use midazolam instead petitioners drawn quartered slowly tortured death actually burned stake petitioners failed prove availability sodium thiopental pentobarbital state execute using whatever means designated see baze thomas concurring judgment strains credulity suggest defining characteristic burning stake disemboweling drawing quartering beheading like involved risks pain eliminated using alternative methods execution eighth amendment possibly countenance result concocting additional requirement motivated desire preserve ability conduct executions face changing circumstances see ante true details faced practical obstacle obtaining lethal injection drugs since baze decided ante one study concluded recent years seen change protocols frequency unprecedented among execution methods country history denno lethal injection chaos geo developments compel imposition burdens facing execution mystery petitioners part creating shortage execution drugs odd punish actions pharmaceutical companies others seek disassociate death penalty actions course wholly lawful certainly rapidly changing circumstances give us greater confidence execution methods ultimately selected sufficiently humane satisfy eighth amendment quite contrary execution protocols hurriedly devise scramble locate new untested drugs see supra likely cruel unusual presumably drugs first choice fact effective see denno lethal injection quandry medicine dismantled death penalty ford rev describing hurried unreasoned process first adopted original protocol courts review execution methods less searching engaged effect human experimentation also worth noting condemned inmates may read surreal requirement identify means death invitation propose methods executions less consistent modern sensibilities petitioners failed meet new test assumption alternative drugs pointed pentobarbital sodium thiopental available state see ante perhaps reasonable assumption especially given neighboring texas missouri still day continue use pentobarbital executions see death penalty institute execution list online visited june available clerk case file future however condemned inmates might well decline accept current reliance lethal injection particular inmates may suggest firing squad alternative since utah utilized method execution see banner death penalty johnson double murderer executed firing squad utah times june evidence suggest firing squad significantly reliable methods including lethal injection using various combinations drugs thus far developed see sarat gruesome spectacles botched executions america death penalty app calculating executions lethal injection botched none executions firing squad important reason think relatively quick painless see banner supra certainly use firing squad seen devolution primitive era see wood ryan kozinski dissenting denial rehearing en banc say course therefore unconstitutional lethal injection represents latest iteration search neat homicidal methods brandon electric chair unnatural american history quoting editorial new york herald see generally banner supra return firing squad blood physical violence comes step opposite direction might argue visible brutality death conceivably give rise eighth amendment concerns see campbell wood blackmun dissenting denial stay execution certiorari glass louisiana brennan dissenting denial certiorari least condemned inmate perspective however visible yet relatively painless violence may vastly preferable excruciatingly painful death hidden behind veneer medication may well reluctant pull back curtain fear rest us might react see deserve know price collective comfort blindly allow state make condemned inmates pay names protecting even convicted heinous crimes eighth amendment reaffirms duty government respect dignity persons roper simmons today however absolves state oklahoma duty misconstruing ignoring record evidence regarding constitutional insufficiency midazolam sedative lethal injection cocktail imposing wholly unprecedented obligation condemned inmate identify available means execution contortions necessary save particular lethal injection protocol worth price dissent footnotes three drug combinations oklahoma may administer single dose pentobarbital single dose sodium thiopental dose midazolam followed dose hydromorphone justice sotomayor dissent hereinafter principal dissent post inexplicably refuses recognize chief justice opinion baze sets holding case baze opinion chief justice joined two justices justices scalia thomas took broader position method execution consistent eighth amendment unless deliberately designed inflict pain thomas concurring judgment thus explained marks chief justice opinion sets holding case reason petitioners base argument rule set opinion see brief petitioners drs lubarsky sasich petitioners key witnesses testified midazolam inappropriate third reason namely creates risk paradoxical reactions agitation hyperactivity combativeness app expert report lubarsky expert report sasich district found however frequency paradoxical reaction occurs speculative risk occurs highest frequency low therapeutic doses indeed sasich conceded incidence risk paradoxical reactions midazolam unknown reports estimate risk vary moreover mere fact method execution might result unintended side effects amount eighth amendment violation constitution demand avoidance risk pain baze plurality opinion principal dissent misunderstands record bizarrely suggests midazolam dangerous peanut post evans lubarsky agreed midazolam caused fatalities doses low milligrams per kilogram app even death low doses rare unfortunate side effec post district found massive dose many times higher lowest dose reported produced death likely cause death hour app petitioners experts also declined testify dose midazolam always insufficient place person coma render insensate pain lubarsky argued dose reliably produce coma sasich asked whether say reasonable degree certainty dose midazolam render someone unconscious replied product label midazolam sasich attached expert report also acknowledged overdose midazolam cause coma see expert report larry sasich principal dissent emphasizes lubarsky supposedly contrary testimony district entitled credit evans sasich instead lubarsky point district strong reasons credit lubarsky even argued protocol includes sodium thiopental constructed produce egregious harm suffering app gaba amino acid functions inhibitory neurotransmitter brain spinal cord mosby medical dictionary ed principal dissent emphasizes lubarsky testimony irrelevant wood administered drug period post evans disagreed testified dose spread long period time one hour half time issue wood execution drug might effective administered tr principal dissent pronouncement entirely unsupported post supported evans expertise decades experience unusual expert testifying stand punctuate sentence citation medical journal wood execution arizona commissioned independent assessment execution protocol wood execution according report iv team leader medical examiner independent physician agreed dosage midazolam result heavy sedation dept corrections assessment review dept corrections execution protocols online https far blaming midazolam wood execution report recommended arizona replace protocol oklahoma protocol includes dose midazolam first drug footnotes generally baze rees thomas concurring judgment explaining cruel unusual punishments clause prohibit death penalty torturous punishments graham collins thomas concurring gardner florida rehnquist dissenting prohibition eighth amendment relates character punishment process imposed reliability kansas marsh noting death penalty remains constitutional despite imperfections criminal justice system mcgautha california federal constitution marks limits authority cases guarantee trial procedures best worlds accord enlightened ideas students infant science criminology even measure individual predilections members arbitrariness ring arizona scalia concurring explaining compelled specify designed limit death penalty worst worst baseless jurisprudence concerning juror discretion mccleskey kemp noting various procedures including right jury trial constitute defendant protection arbitrariness application death penalty excessive delays knight florida thomas concurring denial certiorari unaware support american constitutional tradition precedent proposition defendant avail panoply appellate collateral procedures complain execution delayed see also johnson bredesen thomas concurring denial certiorari decline use death penalty atkins virginia scalia dissenting woodson north carolina rehnquist dissenting faith jury seems correlated institution likelihood preventing imposition death penalty see ring arizona breyer concurring judgment arguing eighth amendment requires jury judge make decision sentence defendant death wainwright witt brennan dissenting however heinous witt crime majority vivid portrait gruesome details bearing issue us decide whether witt deserves die decision must first made jury peers part justice breyer explains experience shown discrepancies find rational explanations post asks one man receive death murder another received life murdering young mother nearly killing infant ibid outcomes two cases may morally compelled certainly rational explanation first man previously confessed another murder killed disabled man offered place stay night state badgett killer stabbed victim throat prevented seeking medical attention bled death ibid second man expressed remorse crimes claimed suffer mental disorders see charbonneau andre edwards sentenced life prison murder wral mar online http news local story internet materials visited june available clerk case file charbonneau jury finds andre edwards guilty murder wral mar online http news local story discrepancies similarly rational explanations even reasonable juries reached different results justice breyer appears acknowledge decision holding mandatory death penalty schemes unconstitutional woodson north carolina plurality opinion may introduced problem arbitrary application post agree woodson eliminated one reliable legislative response concerns arbitrariness graham collins thomas concurring decision also questionable constitutional grounds willing revisit future case footnotes hydromorphone powerful analgesic similar morphine heroin see stoelting hillier pharmacology physiology anesthetic practice ed stoelting hillier disputes characterization evans testimony insisting evans accurately described midazolam properties written report submitted prior hearing suggesting petitioners experts dispute accuracy explanation fact wrong ante evans written report simply said midazolam produces different levels central nervous system cns depression binding gaba receptors app much true drs sasich lubarsky testified evans claim midazolam produced cns depression binding gaba receptors thereby preventing gaba binding receptors went wrong observation lubarsky also used variant word inhibiting testimony saying gaba brain activity accentuated midazolam ante quoting app completely nonresponsive inhibiting perfectly good word problem manner evans used sentence reasons discussed part infra contrary claim see ante good reasons doubt milligrams midazolam light ceiling effect inevitably kill someone closest record comes providing support contention fleeting mention product label one possible consequences midazolam overdosage coma see ante moreover even amount drug kill people hour ante necessarily mean condemned insensate approximately minutes takes paralytic potassium chloride work sasich emphasizes perhaps hesitant reach definitive conclusions see ante statements highlighted largely reflect truthful observations testing done doses milligrams inability pinpoint precise dose midazolam ceiling effect might reached sasich suggests claim midazolam ceiling effect reached person became fully insensate pain ante sasich actually said dose increases benzodiazepines expected produce sedation amnesia finally lack response stimuli pain unconsciousness app context clear sasich simply explaining drug like midazolam used induce unconsciousness issue remains undisputed render inmate sufficiently unconscious resist noxious stimuli indeed midazolam possible inability serve latter function led sasich conclude appropriate drug use administering paralytic followed potassium chloride claims district properly disregarded lubarsky testimony asserted protocol sodium thiopental egregious harm suffering ante quoting app lubarsky testify like midazolam sodium thiopental render inmate fully insensate even properly administered rather simply observed previously contended protocols using drug ineffective see app presumably referring article coauthored found many condemned inmates successfully delivered dose sodium thiopental necessary fully anesthetize see baze alito concurring discussing study asserts state refuted contentions pointing evans testimony milligrams drug might effect sought administered hour tr see ante theme pronouncement entirely unsupported appears contradicted secondary sources cited petitioners experts fact courts florida approved use midazolam fashion arguably slightly relevant though worth noting majority decisions handed lockett wood executions relied evans testimony see ante protests holding extend far deriding description logical implications legal rule simply true outlandish rhetoric ante presumably imposes requirement eighth amendment claims requirement fact applies methods execution without exception ante emphasis added