THOMAS D. ARTHUR
JEFFERSON S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, ET AL.
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT No. 16-602.
motion of Certain Medical Professionals and Medical Ethicists
for leave to file a brief as amici curiae is granted. The
petition for a writ of certiorari is denied.
Justice Sotomayor, with whom Justice Breyer joins, dissenting
from the denial of certiorari.
two years ago in Glossip v. Gross, 576 U.S.___
(2015), the Court issued a macabre challenge. In order to
successfully attack a State's method of execution as
cruel and unusual under the Eighth Amendment, a condemned
prisoner must not only prove that the State's chosen
method risks severe pain, but must also propose a "known
and available" alternative method for his own execution.
Id., at___, ___(slip op., at 13, 15).
Thomas Arthur, a prisoner on Alabama's death row, has met
this challenge. He has amassed significant evidence that
Alabama's current lethal-injection protocol will result
in intolerable and needless agony, and he has proposed an
alternative-death by firing squad. The Court of Appeals,
without considering any of the evidence regarding the risk
posed by the current protocol, denied Arthur's claim
because Alabama law does not expressly permit execution by
firing squad, and so it cannot be a "known and
available" alternative under Glossip. Because
this decision permits States to immunize their methods of
execution-no matter how cruel or how unusual-from judicial
review and thus permits state law to subvert the Federal
Constitution, I would grant certiorari and reverse. I dissent
from my colleagues' decision not to do so.
by lethal injection is generally accomplished through serial
administration of three drugs. First, a fast-acting sedative
such as sodium thiopental induces "a deep, comalike
unconsciousness." Baze v. Rees, 553 U.S. 35, 44
(2008) (plurality opinion). Second, a paralytic agent- most
often pancuronium bromide-"inhibits all
muscular-skeletal movements and, by paralyzing the diaphragm,
stops respiration." Ibid. Third, potassium
chloride induces fatal cardiac arrest. Ibid.
first drug is critical; without it, the prisoner faces the
unadulterated agony of the second and third drugs. The second
drug causes "an extremely painful sensation of crushing
and suffocation, " see Denno, When Legislatures Delegate
Death: The Troubling Paradox Behind State Uses of
Electrocution and Lethal Injection and What It Says About Us,
63 Ohio St. L. J. 63, 109, n. 321 (2002); but paralyzes the
prisoner so as to "mas[k] any outward sign of distress,
" thus serving States' interest "'in
preserving the dignity of the procedure, '"
Baze, 553 U.S., at 71, 73 (Stevens, J., concurring
in judgment). And the third drug causes an "excruciating
burning sensation" that is "equivalent to the
sensation of a hot poker being inserted into the arm"
and traveling "with the chemical up the prisoner's
arm and . . . across his chest until it reaches his
heart." Denno, supra, at 109, n. 321.
absent an adequate sedative thus produces a nightmarish
death: The condemned prisoner is conscious but entirely
paralyzed, unable to move or scream his agony, as he suffers
"what may well be the chemical equivalent of being
burned at the stake." Glossip, 576 U.S.,
at___(SOTOMAYOR, J., dissenting) (slip op., at 2).
many years, the barbiturate sodium thiopental seemed up to
this task. In 2009, however, the sole American
manufacturer of sodium thiopental suspended domestic
production and later left the market altogether.
Id., at___ -___ (majority opinion) (slip
op., at 4-5). States then began to use another barbiturate,
pentobarbital. Id., at___ (slip op., at 5). But in
2013, it also became unavailable. Id., at___
-___ (slip op., at 5-6). Only then did States turn
to midazolam, the drug at the center of this case.
like Valium and Xanax, belongs to a class of medicines known
as benzodiazepines and has some anesthetic effect.
Id., at___(SOTOMAYOR, J., dissenting) (slip op., at
5). Generally, anesthetics can cause a level of sedation and
depression of electrical brain activity sufficient to block
all sensation, including pain. App. to Pet. for
Cert. 283a-290a. But it is not clear that midazolam
adequately serves this purpose. This is because midazolam,
unlike barbiturates such as pentobarbital, has no
analgesic-pain-relieving-effects. Id., at 307a; see
also Glossip, 576 U.S., at___(SOTOMAYOR, J.,
dissenting) (slip op., at 5). Thus, "for midazolam to
maintain unconsciousness through application of a particular
stimulus, it would need to depress electrical activity to
a deeper level than would be required of, for example,
pentobarbital." App. to Pet. for Cert.
307a. Although it can be used to render
individuals unconscious, midazolam is not used on its own to
maintain anesthesia-complete obliviousness to
physical sensation-in surgical procedures, and indeed, the
Food and Drug Administration has not approved the drug for
this purpose. Glossip, 576 U.S., at___(SOTOMAYOR,
J., dissenting) (slip op., at 5).
the experts in Glossip, the experts in this case
agree that midazolam is subject to a ceiling effect, which
means that there is a point at which increasing the dose of
the drug does not result in any greater effect.
Ibid. The main dispute with respect to midazolam
relates to how this ceiling effect operates-if the ceiling on
midazolam's sedative effect is reached before complete
unconsciousness can be achieved, it may be incapable of
keeping individuals insensate to the extreme pain and
discomfort associated with administration of the second and
third drugs in lethal-injection protocols. Ibid.
the horrific execution of Clayton Lockett, who,
notwithstanding administration of midazolam, awoke during his
execution and appeared to be in great pain, we agreed to hear
the case of death row inmates seeking to avoid the same fate.
In Glossip, these inmates alleged that because
midazolam is incapable of rendering prisoners unconscious and
insensate to pain during lethal injection, Oklahoma's
intended use of the drug in their execu- tions would violate
the Eighth Amendment. The Court rejected this claim for two
the Court found that the District Court had not clearly erred
in determining that "midazolam is highly likely to
render a person unable to feel pain during an
execution." Id., at___(slip op., at 16).
Second, the Court held that the petitioners had failed to
satisfy the novel requirement of pleading and proving a
"known and available alternative" method of
execution. Id., at(slip op., at 15).
in order to prevail in an Eighth Amendment challenge to a
State's method of execution, prisoners first must prove
the State's current method "entails a substantial
risk of severe pain, " id., at___(slip op., at
2), and second, must "identify a known and available
alternative method of execution that entails a lesser risk of
pain, " id., at___(slip op., at 1).
case centers on whether Thomas Arthur has met these
requirements with respect to Alabama's lethal-injection
adopted lethal injection as its default method of execution
in 2002. Ala. Code §15-18-82.1(a) (2011); see also
Ex parte Borden, 60 So.3d 940, 941 (Ala. 2007). The
State's capital punishment statute delegates the task of
prescribing the drugs necessary to compound a lethal
injection to the Department of Corrections. §15-18-
82.1(f). Consistent with the practice in other States
following the national shortage of sodium thiopental and
pentobarbital, the department has adopted a protocol
involving the same three drugs considered in
Glossip. See Brooks v. Warden, 810 F.3d
812, 823 (CA11 2016).
anticipating constitutional challenges, Ala- bama's
legislature enacted a contingency plan: The statute provides
that "[i]f electrocution or lethal injection is held to
be unconstitutional ... all persons sentenced to death for a
capital crime shall be ...