BAZE v. REES


Syllabus

BAZE v. REES (No. 07-5439)
217 S.W. 3d 207, affirmed.

BAZE etal. v. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS, etal.

certiorari to the supreme court of kentucky


No. 075439.Argued January 7, 2008Decided April 16, 2008

Lethal injection is used for capital punishment by the Federal Government and 36 States, at least 30 of which (including Kentucky) use the same combination of three drugs:The first, sodium thiopental, induces unconsciousness when given in the specified amounts and thereby ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs, pancuronium bromide and potassium chloride. Among other things, Kentuckys lethal injection protocol reserves to qualified personnel having at least one years professional experience the responsibility for inserting the intravenous (IV) catheters into the prisoner, leaving it to others to mix the drugs and load them into syringes; specifies that the warden and deputy warden will remain in the execution chamber to observe the prisoner and watch for any IV problems while the execution team administers the drugs from another room; and mandates that if, as determined by the warden and deputy, the prisoner is not unconscious within 60 seconds after the sodium thiopentals delivery, a new dose will be given at a secondary injection site before the second and third drugs are administered.

Petitioners, convicted murderers sentenced to death in Kentucky state court, filed suit asserting that the Commonwealths lethal injection protocol violates the Eighth Amendments ban on cruel and unusual punishments. The state trial court held extensive hearings and entered detailed factfindings and conclusions of law, ruling that there was minimal risk of various of petitioners claims of improper administration of the protocol, and upholding it as constitutional. The Kentucky Supreme Court affirmed, holding that the protocol does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.

Held:The judgment is affirmed.

217 S.W. 3d 207, affirmed.

Chief Justice Roberts, joined by Justice Kennedy and Justice Alito, concluded that Kentuckys lethal injection protocol satisfies the Eighth Amendment. Pp.824.

1.To constitute cruel and unusual punishment, an execution method must present a substantial or objectively intolerable risk of serious harm. A States refusal to adopt proffered alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain. Pp.814.

(a) This Court has upheld capital punishment as constitutional. See Gregg v. Georgia, 428 U.S. 153. Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain. Petitioners contend that the Eighth Amendment prohibits procedures that create an unnecessary risk of pain, while Kentucky urges the Court to approve the substantial risk test used below. Pp.89.

(b)This Court has held that the Eighth Amendment forbids punishments of torture, and all others in the same line of unnecessary cruelty, Wilkerson v. Utah, 99 U.S. 130, such as disemboweling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain, id., at 135. Observing also that [p]unishments are cruel when they involve torture or a lingering death[,] something inhuman and barbarous [and] more than the mere extinguishment of life, the Court has emphasized that an electrocution statute it was upholding was passed in the effort to devise a more humane method of reaching the result. In re Kemmler, 136 U.S. 436. Pp.910.

(c)Although conceding that an execution under Kentuckys procedures would be humane and constitutional if performed properly, petitioners claim that there is a significant risk that the procedures will not be properly followedparticularly, that the sodium thiopental will not be properly administered to achieve its intended effectresulting in severe pain when the other chemicals are administered. Subjecting individuals to a substantial risk of future harm can be cruel and unusual punishment if the conditions presenting the risk are sure or very likely to cause serious illness and needless suffering and give rise to sufficiently imminent dangers. Helling v. McKinney, 509 U.S. 25. To prevail, such a claim must present a substantial risk of serious harm, an objectively intolerable risk of harm. Farmer v. Brennan, 511 U.S. 825, and n.9. For example, the Court has held that an isolated mishap alone does not violate the Eighth Amendment, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, because such an event, while regrettable, does not suggest cruelty or a substantial risk of serious harm. Pp.1012.

(d)Petitioners primary contention is that the risks they have identified can be eliminated by adopting certain alternative procedures. Because allowing a condemned prisoner to challenge a States execution method merely by showing a slightly or marginally safer alternative finds no support in this Courts cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing execution procedures, petitioners proposed unnecessary risk standard is rejected in favor of Farmers substantial risk of serious harm test. To effectively address such a substantial risk, a proffered alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. A States refusal to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for its current execution method, can be viewed as cruel and unusual. Pp.1214.

2.Petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. Pp.1423.

(a)It is uncontested that failing a proper dose of sodium thiopental to render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride. It is, however, difficult to regard a practice as objectively intolerable when it is in fact widely tolerated. Probative but not conclusive in this regard is the consensus among the Federal Government and the States that have adopted lethal injection and the specific three-drug combination Kentucky uses. Pp.1415.

(b)In light of the safeguards Kentuckys protocol puts in place, the risks of administering an inadequate sodium thiopental dose identified by petitioners are not so substantial or imminent as to amount to an Eighth Amendment violation. The charge that Kentucky employs untrained personnel unqualified to calculate and mix an adequate dose was answered by the state trial courts finding, substantiated by expert testimony, that there would be minimal risk of improper mixing if the manufacturers thiopental package insert instructions were followed. Likewise, the IV line problems alleged by petitioners do not establish a sufficiently substantial risk because IV team members must have at least one year of relevant professional experience, and the presence of the warden and deputy warden in the execution chamber allows them to watch for IV problems. If an insufficient dose is initially administered through the primary IV site, an additional dose can be given through the secondary site before the last two drugs are injected. Pp.1517.

(c)Nor does Kentuckys failure to adopt petitioners proposed alternatives demonstrate that the state execution procedure is cruel and unusual. Kentuckys continued use of the three-drug protocol cannot be viewed as posing an objectively intolerable risk when no other State has adopted the one-drug method and petitioners have proffered no study showing that it is an equally effective manner of imposing a death sentence. Petitioners contend that Kentucky should omit pancuronium bromide because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of sodium thiopental. The state trial court specifically found that thiopental serves two purposes:(1) preventing involuntary convulsions or seizures during unconsciousness, thereby preserving the procedures dignity, and (2) hastening death. Petitioners assert that their barbiturate-only protocol is used routinely by veterinarians for putting animals to sleep and that 23 States bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide. These arguments overlook the States legitimate interest in providing for a quick, certain death, and in any event, veterinary practice for animals is not an appropriate guide for humane practices for humans. Petitioners charge that Kentuckys protocol lacks a systematic mechanism, such as a Bispectral Index monitor, blood pressure cuff, or electrocardiogram, for monitoring the prisoners anesthetic depth. But expert testimony shows both that a proper thiopental does obviates the concern that a prisoner will not be sufficiently sedated, and that each of the proposed alternatives presents its own concerns. Pp.1723.

Justice Stevens concluded that instead of ending the controversy, this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of pancuronium bromide, but also about the justification for the death penalty itself. States wishing to decrease the risk that future litigation will delay executions or invalidate their protocol would do well to reconsider their continued use of pancuronium bromide. Moreover, although experience demonstrates that imposing that penalty constitutes the pointless and needless extinction of life with only negligible social or public returns, this conclusion does not justify a refusal to respect this Courts precedents upholding the death penalty and establishing a framework for evaluating the constitutionality of particular execution methods, under which petitioners evidence fails to prove that Kentuckys protocol violates the Eighth Amendment. Pp.118.

Justice Thomas, joined by Justice Scalia, concluded that the pluralitys formulation of the governing standard finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in this Courts previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. The historical practices leading to the Clauses inclusion in the Bill of Rights, the views of early commentators on the Constitution, and this Courts cases, see, e.g., Wilkerson v. Utah, 99 U.S. 130, all demonstrate that an execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain. Judged under that standard, this is an easy case: Because it is undisputed that Kentucky adopted its lethal injection protocol in an effort to make capital punishment more humane, not to add elements of terror, pain, or disgrace to the death penalty, petitioners challenge must fail. Pp.115.

Justice Breyer concluded that there cannot be found, either in the record or in the readily available literature, sufficient grounds to believe that Kentuckys lethal injection method creates a significant risk of unnecessary suffering. Although the death penalty has serious riskse.g., that the wrong person may be executed, that unwarranted animus about the victims race, for example, may play a role, and that those convicted will find themselves on death row for many yearsthe penaltys lawfulness is not before the Court. And petitioners proof and evidence, while giving rise to legitimate concern, do not show that Kentuckys execution method amounts to cruel and unusual punishmen[t]. Pp.17.

Roberts, C.J., announced the judgment of the Court and delivered an opinion, in which Kennedy and Alito, JJ., joined. Alito, J.,filed a concurring opinion. Stevens, J., filed an opinion concurring in the judgment. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Breyer, J., filed an opinion concurring in the judgment. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.


TOP

Opinion

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Chief Justice Roberts announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Alito join.

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this caseeach convicted of double homicideacknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendments ban on cruel and unusual punishments, because of the risk that the protocols terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.

The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that [t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds, but concluded that Kentuckys procedure complies with the constitutional requirements against cruel and unusual punishment. App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

I

A

By the middle of the 19th century, hanging was the nearly universal form of execution in the United States. Campbell v. Wood, 511 U.S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash. 2d 469, 492, 627 P.2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? 82 Iowa L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find the most humane and practical method known to modern science of carrying into effect the sentence of death, New York became the first State to authorize electrocution as a form of capital punishment. Glass v. Louisiana, 471 U.S. 1080, and n. 4 (1985) (Brennan, J., dissenting from denial of certiorari); Denno, supra, at 373. By 1915, 11 other States had followed suit, motivated by the well-grounded belief that electrocution is less painful and more humane than hanging. Malloy v. South Carolina, 237 U.S. 180, 185 (1915) .

Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law etal. as Amici Curiae 59 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in Gregg v. Georgia, 428 U.S. 153 (1976) , however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. See S. Banner, The Death Penalty: An American History 192193, 296297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the States method of execution. See Brief for Petitioners 4; Fordham Brief 2122. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. 1 It is also the method used by the Federal Government. See 18 U.S.C. 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762763, 631632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493494, 541, 558559.

B

Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death. Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default ifas is the case with petitionersthe prisoner refuses to make a choice at least 20 days before the scheduled execution. 431.220(1)(b). If a court invalidates Kentuckys lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. 431.223.

Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of 431.220(1)(a). Kentuckys protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762763, 768. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. Id., at 761, 763764. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Id., at 984. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. Id., at 761762. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Id., at 975976. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Id., at 761.

Kentuckys execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. Id., at 203. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. Id., at 286. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. Id., at 978979. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing.

A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. Id., at 764. By statute, however, the physician is prohibited from participating in the conduct of an execution, except to certify the cause of death. Ky. Rev. Stat. Ann. 431.220(3). An electrocardiogram (EKG) verifies the death of the prisoner. App. 764. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harpers execution.

C

Petitioners Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death. The Kentucky Supreme Court upheld their convictions and sentences on direct appeal. See Baze v. Commonwealth, 965 S.W. 2d 817, 819820, 826 (1997), cert. denied, 523 U.S. 1083 (1998) ; Bowling v. Commonwealth, 873 S.W. 2d 175, 176177, 182 (1993), cert. denied, 513 U.S. 862 (1994) .

After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court for the Commonwealth of Kentucky, seeking to have Kentuckys lethal injection protocol declared unconstitutional. After a 7-day bench trial during which the trial court received the testimony of approximately 20 witnesses, including numerous experts, the court upheld the protocol, finding there to be minimal risk of various claims of improper administration of the protocol. App. 765769. On appeal, the Kentucky Supreme Court stated that a method of execution violates the Eighth Amendment when it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209 (2006). Applying that standard, the court affirmed. Id., at 212.

We granted certiorari to determine whether Kentuckys lethal injection protocol satisfies the Eighth Amendment. 551 U.S. ___ (2007). We hold that it does.

II

The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 666 (1962) , provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. We begin with the principle, settled by Gregg, that capital punishment is constitutional. See 428 U.S., at 177 (joint opinion of Stewart, Powell, and Stevens, JJ.). It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of executionno matter how humaneif only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.

Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an unnecessary risk of pain. Brief for Petitioners 38. Specifically, they argue that courts must evaluate (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures. Ibid. Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, Reply Brief for Petitioners 2324, n.9, but that the risk must be significant to trigger Eighth Amendment scrutiny, see Brief for Petitioners 3940; Reply Brief for Petitioners 2526.

Kentucky responds that this unnecessary risk standard is tantamount to a requirement that States adopt the least risk alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Brief for Respondents 29, 35. Instead, Kentucky urges the Court to approve the substantial risk test used by the courts below. Id., at 3435.

A

This Court has never invalidated a States chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U.S. 130 (1879) , we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. Id., at 134135. We noted there the difficulty of defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. Rather than undertake such an effort, the Wilkerson Court simply noted that it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden by the Eighth Amendment. Id., at 136. By way of example, the Court cited cases from England in which terror, pain, or disgrace were sometimes superadded to the sentence, such as where the condemned was embowelled alive, beheaded, and quartered, or instances of public dissection in murder, and burning alive. Id., at 135. In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. Id., at 137. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of painsuperadd[ing] pain to the death sentence through torture and the like.

We carried these principles further in In re Kemmler, 136 U.S. 436 (1890) . There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. Id., at 449. In passing over that question, however, we observed that [p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. Id., at 447. We noted that the New York statute adopting electrocution as a method of execution was passed in the effort to devise a more humane method of reaching the result. Ibid.

B

Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that if performed properly, an execution carried out under Kentuckys procedures would be humane and constitutional. Brief for Petitioners 31. That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. See Tr. of Oral Arg. 5; App. 493494 (testimony of petitioners expert that, if sodium thiopental is properly administered under the protocol, [i]n virtually every case, then that would be a humane death).

Instead, petitioners claim that there is a significant risk that the procedures will not be properly followedin particular, that the sodium thiopental will not be properly administered to achieve its intended effectresulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harmnot simply actually inflicting paincan qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. Helling v. McKinney, 509 U.S. 25, 33, 3435 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, and n.9 (1994).

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that [a]ccidents happen for which no man is to blame, id., at 462, and concluded that such an accident, with no suggestion of malevolence, id., at 463, did not give rise to an Eighth Amendment violation, id., at 463464.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, a hypothetical situation involving a series of abortive attempts at electrocution would present a different case. Id., at 471 (concurring opinion). In terms of our present Eighth Amendment analysis, such a situationunlike an innocent misadventure, id., at 470would demonstrate an objectively intolerable risk of harm that officials may not ignore. See Farmer, 511 U.S., at 846, and n. 9. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm. Id., at 842.

C

Much of petitioners case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a States method of execution merely by showing a slightly or marginally safer alternative.

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining best practices for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution proceduresa role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. See Bell v. Wolfish, 441 U.S. 520, 562 (1979) (The wide range of judgment calls that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government). Accordingly, we reject petitioners proposed unnecessary risk standard, as well as the dissents untoward risk variation. See post, at 2, 11 (opinion of Ginsburg,J.). 2

Instead, the proffered alternatives must effectively address a substantial risk of serious harm. Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a States refusal to change its method can be viewed as cruel and unusual under the Eighth Amendment. 3

III

In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as objectively intolerable when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. See supra, at 34, and n. 1. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. See supra, at 4. No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners.

In order to meet their heavy burden of showing that Kentuckys procedure is cruelly inhumane, Gregg, 428 U.S., at 175 (joint opinion of Stewart, Powell, and Stevens, JJ.), petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. See Tr. of Oral Arg. 27. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified.

A

Petitioners contend that there is a risk of improper administration of thiopental because the doses are difficult to mix into solution form and load into syringes; because the protocol fails to establish a rate of injection, which could lead to a failure of the IV; because it is possible that the IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered to the vein; because of inadequate facilities and training; and because Kentucky has no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopental has been administered. Brief for Petitioners 1220.

As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol. Id., at 4546. The state trial court, however, specifically found that [i]f the manufacturers instructions for reconstitution of Sodium Thiopental are followed, . . . there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task. App. 761. We cannot say that this finding is clearly erroneous, see Hernandez v. New York, 500 U.S. 352, 366 (1991) (plurality opinion), particularly when that finding is substantiated by expert testimony describing the task of reconstituting powder sodium thiopental into solution form as [n]ot difficult at all. You take a liquid, you inject it into a vial with the powder, then you shake it up until the powder dissolves and, youre done. The instructions are on the package insert. 5 Tr. 695 (Apr. 19, 2005).

Likewise, the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment. Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner. The most significant of these is the written protocols requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. App. 984. Kentucky currently uses a phlebotomist and an EMT, personnel who have daily experience establishing IV catheters for inmates in Kentuckys prison population. Id., at 273274; Tr. of Oral Arg. 2728. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. App. 984. These sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers. Ibid. In addition, the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences. Id., at 975. These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected. Id., at 279280, 337338, 978979.

The IV team has one hour to establish both the primary and backup IVs, a length of time the trial court found to be not excessive but rather necessary, id., at 762, contrary to petitioners claim that using an IV inserted after any more than ten or fifteen minutes of unsuccessful attempts is dangerous because the IV is almost certain to be unreliable, Brief for Petitioners 47. And, in any event, merely because the protocol gives the IV team one hour to establish intravenous access does not mean that team members are required to spend the entire hour in a futile attempt to do so. The qualifications of the IV team also substantially reduce the risk of IV infiltration.

In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration. Three of the Commonwealths medical experts testified that identifying signs of infiltration would be very obvious, even to the average person, because of the swelling that would result. App. 385386. See id., at 353, 600601. Kentuckys protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds. Id., at 978979. In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation.

B

Nor does Kentuckys failure to adopt petitioners proposed alternatives demonstrate that the Commonwealths execution procedure is cruel and unusual.

First, petitioners contend that Kentucky could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate. Brief for Petitioners 5157. That alternative was not proposed to the state courts below. 4 As a result, we are left without any findings on the effectiveness of petitioners barbiturate-only protocol, despite scattered references in the trial testimony to the sole use of sodium thiopental or pentobarbital as a preferred method of execution. See Reply Brief for Petitioners 18, n.6.

In any event, the Commonwealths continued use of the three-drug protocol cannot be viewed as posing an objectively intolerable risk when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. See App. 760761, n. 8 (Plaintiffs have not presented any scientific study indicating a better method of execution by lethal injection). Indeed, the State of Tennessee, after reviewing its execution procedures, rejected a proposal to adopt a one-drug protocol using sodium thiopental. The State concluded that the one-drug alternative would take longer than the three-drug method and that the required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death . . . . Workman, 486 F.3d, at 919 (Appendix A). We need not endorse the accuracy of those conclusions to note simply that the comparative efficacy of a one-drug method of execution is not so well established that Kentuckys failure to adopt it constitutes a violation of the Eighth Amendment.

Petitioners also contend that Kentucky should omit the second drug, pancuronium bromide, because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of the first drug. The state trial court, however, specifically found that pancuronium serves two purposes. First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. App. 763. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death. Ibid. Kentuckys decision to include the drug does not offend the Eighth Amendment. 5

Petitioners barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. See Brief for Dr. Kevin Concannon etal. as Amici Curiae 18, n.5. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, see Workman, supra, at 909 (describing the comparison to animal euthanasia as more of a debaters point), it overlooks the States legitimate interest in providing for a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopental in order to prevent a prolonged, undignified death. See Kimsma, Euthanasia and Euthanizing Drugs in The Netherlands, reprinted in Drug Use in Assisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A. Lipman eds. 1996). That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarianssuch as stunning the animal or severing its spinal cord, see 6 Tr. 758759 (Apr. 20, 2005)make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans.

Petitioners also fault the Kentucky protocol for lacking a systematic mechanism for monitoring the anesthetic depth of the prisoner. Under petitioners scheme, qualified personnel would employ monitoring equipment, such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify that a prisoner has achieved sufficient unconsciousness before injecting the final two drugs. The visual inspection performed by the warden and deputy warden, they maintain, is an inadequate substitute for the more sophisticated procedures they envision. Brief for Petitioners 19, 58.

At the outset, it is important to reemphasize that a proper dose of thiopental obviates the concern that a prisoner will not be sufficiently sedated. All the experts who testified at trial agreed on this point. The risks of failing to adopt additional monitoring procedures are thus even more remote and attenuated than the risks posed by the alleged inadequacies of Kentuckys procedures designed to ensure the delivery of thiopental. See Hamilton v. Jones, 472 F.3d 814, 817 (CA10 2007) (per curiam); Taylor v. Crawford, 487 F.3d 1072, 1084 (CA8 2007).

But more than this, Kentuckys expert testified that a blood pressure cuff would have no utility in assessing the level of the prisoners unconsciousness following the introduction of sodium thiopental, which depresses circulation. App. 578. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 (Apr. 2006); see Brown v. Beck, 445 F.3d 752, 754755 (CA4 2006) (Michael, J., dissenting). The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law, see Ky. Rev. Stat. Ann. 431.220(3), and the American Society of Anesthesiologists own ethical guidelines, see Brief for American Society of Anesthesiologists as Amicus Curiae 23, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is the standard of care in surgery requiring anesthesia, as the dissent points out. Post, at 6. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering.

The dissent believes that rough-and-ready tests for checking consciousnesscalling the inmates name, brushing his eyelashes, or presenting him with strong, noxious odorscould materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. See ibid. Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentuckys procedure, but not sufficient to prevent pain. See post, at 910. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmates bloodstream, see post, at 6, the record confirms that the visual inspection of the IV site under Kentuckys procedure achieves that objective. See supra, at 17. 6

The dissent would continue the stay of these executions (and presumably the many others held in abeyance pending decision in this case) and send the case back to the lower courts to determine whether such added measures redress an untoward risk of pain. Post, at 11. But an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the States legitimate interest in carrying out a sentence of death in a timely manner. See Baze v. Parker, 371 F.3d 310, 317 (CA6 2004) (petitioner Baze sentenced to death in 1994); Bowling v. Parker, 138 F.Supp. 2d 821, 840 (ED Ky. 2001) (petitioner Bowling sentenced to death in 1991).

Justice Stevens suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the States lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

***

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, [o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. 329 U.S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. [T]he power of a State to pass laws means little if the State cannot enforce them. McCleskey v. Zant, 499 U.S. 467, 491 (1991) . State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to objectively intolerable risk, Farmer, 511 U.S., at 846, and n.9, not simply the possibility of pain.

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggestedsuch as improper mixing of chemicals and improper setting of IVs by trained and experienced personnelcannot remotely be characterized as objectively intolerable. Kentuckys decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in todays consensus on lethal injection. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 657 (1992) (Stevens, J., dissenting); App. 755. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that todays decision will be any different. 7

The judgment below concluding that Kentuckys procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

It is so ordered.


Notes

1Twenty-seven of the 36 States that currently provide for capital punishment require execution by lethal injection as the sole method. See Ariz. Rev. Stat. Ann. 13704 (West 2001); Ark. Code Ann. 54617 (2006); Colo. Rev. Stat. Ann. 181.31202 (2007); Conn. Gen. Stat. 54100 (2007); Del. Code Ann., Tit. 11, 4209 (2006 Supp.); Ga. Code Ann. 171038 (2004); Ill. Comp. Stat., ch. 725, 5/1195 (West 2006); Ind. Code 353861 (West 2004); Kan. Stat. Ann. 224001 (2006 Cum. Supp.); Ky. Rev. Stat. Ann. 431.220 (West 2006); La. Stat. Ann. 15:569 (West 2005); Md. Crim. Law Code Ann. 2303 (Lexis Supp. 2007); Miss. Code Ann. 991951 (2007); Mont. Code Ann. 4619103 (2007); Nev. Rev. Stat. 176.355 (2007); N.J. Stat. Ann. 2C:492 (West 2007) (repealed Dec. 17, 2007); N.M. Stat. Ann. 311411 (2000); N.C. Gen. Stat. Ann. 15187 (Lexis 2007); N.Y. Correc. Law Ann. 658 (West 2003) (held unconstitutional in People v. LaValle, 3 N.Y. 3d 88, 130131, 817 N.E. 2d 341, 367 (2004)); Ohio Rev. Code Ann. 2949.22 (Lexis 2006); Okla. Stat., Tit. 22, 1014 (West 2001); Ore. Rev. Stat. 137.473 (2003); Pa. Stat. Ann., Tit. 61, 3004 (Purdon 1999); S.D. Codified Laws 23A27A32 (Supp. 2007); Tenn. Code Ann. 4023114 (2006); Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. 77185.5 (Lexis Supp. 2007); Wyo. Stat. Ann. 713904 (2007). Nine States allow for lethal injection in addition to an alternative method, such as electrocution, see Ala. Code 151882 to 82.1 (Supp. 2007); Fla. Stat. 922.105 (2006); S.C. Code Ann. 243530 (2007); Va. Code Ann. 53.1234 (Lexis Supp. 2007), hanging, see N.H. Rev. Stat. Ann. 630:5 (2007); Wash. Rev. Code 10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. 3604 (West 2000); Mo. Rev. Stat. 546.720 (2007 Cum. Supp.), or firing squad, see Idaho Code 192716 (Lexis 2004). Nebraska is the only State whose statutes specify electrocution as the sole method of execution, see Neb. Rev. Stat. 292532 (1995), but the Nebraska Supreme Court recently struck down that method under the Nebraska Constitution, see State v. Mata, No. S051268, 2008 WL 351695, *40 (2008). Although it is undisputed that the States using lethal injection adopted the protocol first developed by Oklahoma without significant independent review of the procedure, it is equally undisputed that, in moving to lethal injection, the States were motivated by a desire to find a more humane alternative to then-existing methods. See Fordham Brief 23. In this regard, Kentucky was no different. See id., at 2930 (quoting statement by the State Representative who sponsored the bill to replace electrocution with lethal injection in Kentucky: if we are going to do capital punishment, it needs to be done in the most humane manner (internal quotation marks omitted)).

2The difficulties inherent in such approaches are exemplified by the controversy surrounding the study of lethal injection published in the April 2005 edition of the British medical journal the Lancet. After examining thiopental concentrations in toxicology reports based on blood samples drawn from 49 executed inmates, the study concluded that most of the executed inmates had concentrations that would not be expected to produce a surgical plane of anaesthesia, and 21 (43%) had concentrations consistent with consciousness. Koniaris, Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 14121413. The study was widely cited around the country in motions to stay executions and briefs on the merits. See, e.g., Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study). But shortly after the Lancet study appeared, peer responses by seven medical researchers criticized the methodology supporting the original conclusions. See Groner, Inadequate Anaesthesia in Lethal Injection for Execution, 366 Lancet 10731074 (Sept. 2005). These researchers noted that because the blood samples were taken several hours to days after the inmates deaths, the postmortem concentrations of thiopentala fat-soluble compound that passively diffuses from blood into tissuecould not be relied on as accurate indicators for concentrations during life. Id., at 1073. The authors of the original study responded to defend their methodology. Id., at 10741076. See also post, at 24 (Breyer, J., concurring in judgment). We do not purport to take sides in this dispute. We cite it only to confirm that a best practices approach, calling for the weighing of relative risks without some measure of deference to a States choice of execution procedures, would involve the courts in debatable matters far exceeding their expertise.

3Justice Thomas agrees that courts have neither the authority nor the expertise to function as boards of inquiry determining best practices for executions, see post, at 9 (opinion concurring in judgment) (quoting this opinion); post, at 13, but contends that the standard we adopt inevitably poses such concerns. In our view, those concerns are effectively addressed by the threshold requirement reflected in our cases of a substantial risk of serious harm or an objectively intolerable risk of harm, see supra, at 11, and by the substantive requirements in the articulated standard.

4Petitioners did allude to an alternative chemical or combination of chemicals that could replace Kentuckys three-drug protocol in their post-trial brief, see App. 684, but based on the arguments presented there, it is clear they intended to refer only to other, allegedly less painful drugs that could substitute for potassium chloride as a heart-stopping agent, see id., at 701. Likewise, the only alternatives to the three-drug protocol presented to the Kentucky Supreme Court were those that replaced potassium chloride with other drugs for inducing cardiac arrest, or that omitted pancuronium bromide, or that added an analgesic to relieve pain. See Brief for Appellants in No. 2005SC00543, pp. 38, 39, 40.

5Justice Stevenss conclusion that the risk addressed by pancuronium bromide is vastly outweighed by the risk of pain at issue here, see post, at 3 (opinion concurring in judgment), depends, of course, on the magnitude of the risk of such pain. As explained, that risk is insignificant in light of the safeguards Kentucky has adopted.

6Resisting this point, the dissent rejects the expert testimony that problems with the intravenous administration of sodium thiopental would be obvious, see post, at 10, testimony based not only on the pain that would result from injecting the first drug into tissue rather than the vein, see App. 600601, but also on the swelling that would occur, see id., at 353. See also id., at 385386. Neither of these expert conclusions was disputed below.

7We do not agree with Justice Stevens that anything in our opinion undermines or remotely addresses the validity of capital punishment. See post, at 11. The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution.


TOP

Opinion

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Chief Justice Roberts announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Alito join.

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this caseeach convicted of double homicideacknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendments ban on cruel and unusual punishments, because of the risk that the protocols terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.

The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that [t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds, but concluded that Kentuckys procedure complies with the constitutional requirements against cruel and unusual punishment. App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

I

A

By the middle of the 19th century, hanging was the nearly universal form of execution in the United States. Campbell v. Wood, 511 U.S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash. 2d 469, 492, 627 P.2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? 82 Iowa L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find the most humane and practical method known to modern science of carrying into effect the sentence of death, New York became the first State to authorize electrocution as a form of capital punishment. Glass v. Louisiana, 471 U.S. 1080, and n. 4 (1985) (Brennan, J., dissenting from denial of certiorari); Denno, supra, at 373. By 1915, 11 other States had followed suit, motivated by the well-grounded belief that electrocution is less painful and more humane than hanging. Malloy v. South Carolina, 237 U.S. 180, 185 (1915) .

Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law etal. as Amici Curiae 59 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in Gregg v. Georgia, 428 U.S. 153 (1976) , however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. See S. Banner, The Death Penalty: An American History 192193, 296297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the States method of execution. See Brief for Petitioners 4; Fordham Brief 2122. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. 1 It is also the method used by the Federal Government. See 18 U.S.C. 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762763, 631632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493494, 541, 558559.

B

Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death. Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default ifas is the case with petitionersthe prisoner refuses to make a choice at least 20 days before the scheduled execution. 431.220(1)(b). If a court invalidates Kentuckys lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. 431.223.

Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of 431.220(1)(a). Kentuckys protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762763, 768. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. Id., at 761, 763764. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Id., at 984. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. Id., at 761762. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Id., at 975976. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Id., at 761.

Kentuckys execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. Id., at 203. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. Id., at 286. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. Id., at 978979. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing.

A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. Id., at 764. By statute, however, the physician is prohibited from participating in the conduct of an execution, except to certify the cause of death. Ky. Rev. Stat. Ann. 431.220(3). An electrocardiogram (EKG) verifies the death of the prisoner. App. 764. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harpers execution.

C

Petitioners Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death. The Kentucky Supreme Court upheld their convictions and sentences on direct appeal. See Baze v. Commonwealth, 965 S.W. 2d 817, 819820, 826 (1997), cert. denied, 523 U.S. 1083 (1998) ; Bowling v. Commonwealth, 873 S.W. 2d 175, 176177, 182 (1993), cert. denied, 513 U.S. 862 (1994) .

After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court for the Commonwealth of Kentucky, seeking to have Kentuckys lethal injection protocol declared unconstitutional. After a 7-day bench trial during which the trial court received the testimony of approximately 20 witnesses, including numerous experts, the court upheld the protocol, finding there to be minimal risk of various claims of improper administration of the protocol. App. 765769. On appeal, the Kentucky Supreme Court stated that a method of execution violates the Eighth Amendment when it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209 (2006). Applying that standard, the court affirmed. Id., at 212.

We granted certiorari to determine whether Kentuckys lethal injection protocol satisfies the Eighth Amendment. 551 U.S. ___ (2007). We hold that it does.

II

The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 666 (1962) , provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. We begin with the principle, settled by Gregg, that capital punishment is constitutional. See 428 U.S., at 177 (joint opinion of Stewart, Powell, and Stevens, JJ.). It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of executionno matter how humaneif only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.

Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an unnecessary risk of pain. Brief for Petitioners 38. Specifically, they argue that courts must evaluate (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures. Ibid. Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, Reply Brief for Petitioners 2324, n.9, but that the risk must be significant to trigger Eighth Amendment scrutiny, see Brief for Petitioners 3940; Reply Brief for Petitioners 2526.

Kentucky responds that this unnecessary risk standard is tantamount to a requirement that States adopt the least risk alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Brief for Respondents 29, 35. Instead, Kentucky urges the Court to approve the substantial risk test used by the courts below. Id., at 3435.

A

This Court has never invalidated a States chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U.S. 130 (1879) , we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. Id., at 134135. We noted there the difficulty of defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. Rather than undertake such an effort, the Wilkerson Court simply noted that it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden by the Eighth Amendment. Id., at 136. By way of example, the Court cited cases from England in which terror, pain, or disgrace were sometimes superadded to the sentence, such as where the condemned was embowelled alive, beheaded, and quartered, or instances of public dissection in murder, and burning alive. Id., at 135. In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. Id., at 137. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of painsuperadd[ing] pain to the death sentence through torture and the like.

We carried these principles further in In re Kemmler, 136 U.S. 436 (1890) . There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. Id., at 449. In passing over that question, however, we observed that [p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. Id., at 447. We noted that the New York statute adopting electrocution as a method of execution was passed in the effort to devise a more humane method of reaching the result. Ibid.

B

Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that if performed properly, an execution carried out under Kentuckys procedures would be humane and constitutional. Brief for Petitioners 31. That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. See Tr. of Oral Arg. 5; App. 493494 (testimony of petitioners expert that, if sodium thiopental is properly administered under the protocol, [i]n virtually every case, then that would be a humane death).

Instead, petitioners claim that there is a significant risk that the procedures will not be properly followedin particular, that the sodium thiopental will not be properly administered to achieve its intended effectresulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harmnot simply actually inflicting paincan qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. Helling v. McKinney, 509 U.S. 25, 33, 3435 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, and n.9 (1994).

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that [a]ccidents happen for which no man is to blame, id., at 462, and concluded that such an accident, with no suggestion of malevolence, id., at 463, did not give rise to an Eighth Amendment violation, id., at 463464.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, a hypothetical situation involving a series of abortive attempts at electrocution would present a different case. Id., at 471 (concurring opinion). In terms of our present Eighth Amendment analysis, such a situationunlike an innocent misadventure, id., at 470would demonstrate an objectively intolerable risk of harm that officials may not ignore. See Farmer, 511 U.S., at 846, and n. 9. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm. Id., at 842.

C

Much of petitioners case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a States method of execution merely by showing a slightly or marginally safer alternative.

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining best practices for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution proceduresa role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. See Bell v. Wolfish, 441 U.S. 520, 562 (1979) (The wide range of judgment calls that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government). Accordingly, we reject petitioners proposed unnecessary risk standard, as well as the dissents untoward risk variation. See post, at 2, 11 (opinion of Ginsburg,J.). 2

Instead, the proffered alternatives must effectively address a substantial risk of serious harm. Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a States refusal to change its method can be viewed as cruel and unusual under the Eighth Amendment. 3

III

In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as objectively intolerable when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. See supra, at 34, and n. 1. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. See supra, at 4. No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners.

In order to meet their heavy burden of showing that Kentuckys procedure is cruelly inhumane, Gregg, 428 U.S., at 175 (joint opinion of Stewart, Powell, and Stevens, JJ.), petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. See Tr. of Oral Arg. 27. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified.

A

Petitioners contend that there is a risk of improper administration of thiopental because the doses are difficult to mix into solution form and load into syringes; because the protocol fails to establish a rate of injection, which could lead to a failure of the IV; because it is possible that the IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered to the vein; because of inadequate facilities and training; and because Kentucky has no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopental has been administered. Brief for Petitioners 1220.

As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol. Id., at 4546. The state trial court, however, specifically found that [i]f the manufacturers instructions for reconstitution of Sodium Thiopental are followed, . . . there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task. App. 761. We cannot say that this finding is clearly erroneous, see Hernandez v. New York, 500 U.S. 352, 366 (1991) (plurality opinion), particularly when that finding is substantiated by expert testimony describing the task of reconstituting powder sodium thiopental into solution form as [n]ot difficult at all. You take a liquid, you inject it into a vial with the powder, then you shake it up until the powder dissolves and, youre done. The instructions are on the package insert. 5 Tr. 695 (Apr. 19, 2005).

Likewise, the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment. Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner. The most significant of these is the written protocols requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. App. 984. Kentucky currently uses a phlebotomist and an EMT, personnel who have daily experience establishing IV catheters for inmates in Kentuckys prison population. Id., at 273274; Tr. of Oral Arg. 2728. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. App. 984. These sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers. Ibid. In addition, the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences. Id., at 975. These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected. Id., at 279280, 337338, 978979.

The IV team has one hour to establish both the primary and backup IVs, a length of time the trial court found to be not excessive but rather necessary, id., at 762, contrary to petitioners claim that using an IV inserted after any more than ten or fifteen minutes of unsuccessful attempts is dangerous because the IV is almost certain to be unreliable, Brief for Petitioners 47. And, in any event, merely because the protocol gives the IV team one hour to establish intravenous access does not mean that team members are required to spend the entire hour in a futile attempt to do so. The qualifications of the IV team also substantially reduce the risk of IV infiltration.

In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration. Three of the Commonwealths medical experts testified that identifying signs of infiltration would be very obvious, even to the average person, because of the swelling that would result. App. 385386. See id., at 353, 600601. Kentuckys protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds. Id., at 978979. In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation.

B

Nor does Kentuckys failure to adopt petitioners proposed alternatives demonstrate that the Commonwealths execution procedure is cruel and unusual.

First, petitioners contend that Kentucky could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate. Brief for Petitioners 5157. That alternative was not proposed to the state courts below. 4 As a result, we are left without any findings on the effectiveness of petitioners barbiturate-only protocol, despite scattered references in the trial testimony to the sole use of sodium thiopental or pentobarbital as a preferred method of execution. See Reply Brief for Petitioners 18, n.6.

In any event, the Commonwealths continued use of the three-drug protocol cannot be viewed as posing an objectively intolerable risk when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. See App. 760761, n. 8 (Plaintiffs have not presented any scientific study indicating a better method of execution by lethal injection). Indeed, the State of Tennessee, after reviewing its execution procedures, rejected a proposal to adopt a one-drug protocol using sodium thiopental. The State concluded that the one-drug alternative would take longer than the three-drug method and that the required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death . . . . Workman, 486 F.3d, at 919 (Appendix A). We need not endorse the accuracy of those conclusions to note simply that the comparative efficacy of a one-drug method of execution is not so well established that Kentuckys failure to adopt it constitutes a violation of the Eighth Amendment.

Petitioners also contend that Kentucky should omit the second drug, pancuronium bromide, because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of the first drug. The state trial court, however, specifically found that pancuronium serves two purposes. First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. App. 763. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death. Ibid. Kentuckys decision to include the drug does not offend the Eighth Amendment. 5

Petitioners barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. See Brief for Dr. Kevin Concannon etal. as Amici Curiae 18, n.5. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, see Workman, supra, at 909 (describing the comparison to animal euthanasia as more of a debaters point), it overlooks the States legitimate interest in providing for a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopental in order to prevent a prolonged, undignified death. See Kimsma, Euthanasia and Euthanizing Drugs in The Netherlands, reprinted in Drug Use in Assisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A. Lipman eds. 1996). That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarianssuch as stunning the animal or severing its spinal cord, see 6 Tr. 758759 (Apr. 20, 2005)make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans.

Petitioners also fault the Kentucky protocol for lacking a systematic mechanism for monitoring the anesthetic depth of the prisoner. Under petitioners scheme, qualified personnel would employ monitoring equipment, such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify that a prisoner has achieved sufficient unconsciousness before injecting the final two drugs. The visual inspection performed by the warden and deputy warden, they maintain, is an inadequate substitute for the more sophisticated procedures they envision. Brief for Petitioners 19, 58.

At the outset, it is important to reemphasize that a proper dose of thiopental obviates the concern that a prisoner will not be sufficiently sedated. All the experts who testified at trial agreed on this point. The risks of failing to adopt additional monitoring procedures are thus even more remote and attenuated than the risks posed by the alleged inadequacies of Kentuckys procedures designed to ensure the delivery of thiopental. See Hamilton v. Jones, 472 F.3d 814, 817 (CA10 2007) (per curiam); Taylor v. Crawford, 487 F.3d 1072, 1084 (CA8 2007).

But more than this, Kentuckys expert testified that a blood pressure cuff would have no utility in assessing the level of the prisoners unconsciousness following the introduction of sodium thiopental, which depresses circulation. App. 578. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 (Apr. 2006); see Brown v. Beck, 445 F.3d 752, 754755 (CA4 2006) (Michael, J., dissenting). The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law, see Ky. Rev. Stat. Ann. 431.220(3), and the American Society of Anesthesiologists own ethical guidelines, see Brief for American Society of Anesthesiologists as Amicus Curiae 23, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is the standard of care in surgery requiring anesthesia, as the dissent points out. Post, at 6. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering.

The dissent believes that rough-and-ready tests for checking consciousnesscalling the inmates name, brushing his eyelashes, or presenting him with strong, noxious odorscould materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. See ibid. Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentuckys procedure, but not sufficient to prevent pain. See post, at 910. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmates bloodstream, see post, at 6, the record confirms that the visual inspection of the IV site under Kentuckys procedure achieves that objective. See supra, at 17. 6

The dissent would continue the stay of these executions (and presumably the many others held in abeyance pending decision in this case) and send the case back to the lower courts to determine whether such added measures redress an untoward risk of pain. Post, at 11. But an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the States legitimate interest in carrying out a sentence of death in a timely manner. See Baze v. Parker, 371 F.3d 310, 317 (CA6 2004) (petitioner Baze sentenced to death in 1994); Bowling v. Parker, 138 F.Supp. 2d 821, 840 (ED Ky. 2001) (petitioner Bowling sentenced to death in 1991).

Justice Stevens suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the States lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

***

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, [o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. 329 U.S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. [T]he power of a State to pass laws means little if the State cannot enforce them. McCleskey v. Zant, 499 U.S. 467, 491 (1991) . State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to objectively intolerable risk, Farmer, 511 U.S., at 846, and n.9, not simply the possibility of pain.

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggestedsuch as improper mixing of chemicals and improper setting of IVs by trained and experienced personnelcannot remotely be characterized as objectively intolerable. Kentuckys decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in todays consensus on lethal injection. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 657 (1992) (Stevens, J., dissenting); App. 755. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that todays decision will be any different. 7

The judgment below concluding that Kentuckys procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

It is so ordered.


Notes

1Twenty-seven of the 36 States that currently provide for capital punishment require execution by lethal injection as the sole method. See Ariz. Rev. Stat. Ann. 13704 (West 2001); Ark. Code Ann. 54617 (2006); Colo. Rev. Stat. Ann. 181.31202 (2007); Conn. Gen. Stat. 54100 (2007); Del. Code Ann., Tit. 11, 4209 (2006 Supp.); Ga. Code Ann. 171038 (2004); Ill. Comp. Stat., ch. 725, 5/1195 (West 2006); Ind. Code 353861 (West 2004); Kan. Stat. Ann. 224001 (2006 Cum. Supp.); Ky. Rev. Stat. Ann. 431.220 (West 2006); La. Stat. Ann. 15:569 (West 2005); Md. Crim. Law Code Ann. 2303 (Lexis Supp. 2007); Miss. Code Ann. 991951 (2007); Mont. Code Ann. 4619103 (2007); Nev. Rev. Stat. 176.355 (2007); N.J. Stat. Ann. 2C:492 (West 2007) (repealed Dec. 17, 2007); N.M. Stat. Ann. 311411 (2000); N.C. Gen. Stat. Ann. 15187 (Lexis 2007); N.Y. Correc. Law Ann. 658 (West 2003) (held unconstitutional in People v. LaValle, 3 N.Y. 3d 88, 130131, 817 N.E. 2d 341, 367 (2004)); Ohio Rev. Code Ann. 2949.22 (Lexis 2006); Okla. Stat., Tit. 22, 1014 (West 2001); Ore. Rev. Stat. 137.473 (2003); Pa. Stat. Ann., Tit. 61, 3004 (Purdon 1999); S.D. Codified Laws 23A27A32 (Supp. 2007); Tenn. Code Ann. 4023114 (2006); Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. 77185.5 (Lexis Supp. 2007); Wyo. Stat. Ann. 713904 (2007). Nine States allow for lethal injection in addition to an alternative method, such as electrocution, see Ala. Code 151882 to 82.1 (Supp. 2007); Fla. Stat. 922.105 (2006); S.C. Code Ann. 243530 (2007); Va. Code Ann. 53.1234 (Lexis Supp. 2007), hanging, see N.H. Rev. Stat. Ann. 630:5 (2007); Wash. Rev. Code 10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. 3604 (West 2000); Mo. Rev. Stat. 546.720 (2007 Cum. Supp.), or firing squad, see Idaho Code 192716 (Lexis 2004). Nebraska is the only State whose statutes specify electrocution as the sole method of execution, see Neb. Rev. Stat. 292532 (1995), but the Nebraska Supreme Court recently struck down that method under the Nebraska Constitution, see State v. Mata, No. S051268, 2008 WL 351695, *40 (2008). Although it is undisputed that the States using lethal injection adopted the protocol first developed by Oklahoma without significant independent review of the procedure, it is equally undisputed that, in moving to lethal injection, the States were motivated by a desire to find a more humane alternative to then-existing methods. See Fordham Brief 23. In this regard, Kentucky was no different. See id., at 2930 (quoting statement by the State Representative who sponsored the bill to replace electrocution with lethal injection in Kentucky: if we are going to do capital punishment, it needs to be done in the most humane manner (internal quotation marks omitted)).

2The difficulties inherent in such approaches are exemplified by the controversy surrounding the study of lethal injection published in the April 2005 edition of the British medical journal the Lancet. After examining thiopental concentrations in toxicology reports based on blood samples drawn from 49 executed inmates, the study concluded that most of the executed inmates had concentrations that would not be expected to produce a surgical plane of anaesthesia, and 21 (43%) had concentrations consistent with consciousness. Koniaris, Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 14121413. The study was widely cited around the country in motions to stay executions and briefs on the merits. See, e.g., Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study). But shortly after the Lancet study appeared, peer responses by seven medical researchers criticized the methodology supporting the original conclusions. See Groner, Inadequate Anaesthesia in Lethal Injection for Execution, 366 Lancet 10731074 (Sept. 2005). These researchers noted that because the blood samples were taken several hours to days after the inmates deaths, the postmortem concentrations of thiopentala fat-soluble compound that passively diffuses from blood into tissuecould not be relied on as accurate indicators for concentrations during life. Id., at 1073. The authors of the original study responded to defend their methodology. Id., at 10741076. See also post, at 24 (Breyer, J., concurring in judgment). We do not purport to take sides in this dispute. We cite it only to confirm that a best practices approach, calling for the weighing of relative risks without some measure of deference to a States choice of execution procedures, would involve the courts in debatable matters far exceeding their expertise.

3Justice Thomas agrees that courts have neither the authority nor the expertise to function as boards of inquiry determining best practices for executions, see post, at 9 (opinion concurring in judgment) (quoting this opinion); post, at 13, but contends that the standard we adopt inevitably poses such concerns. In our view, those concerns are effectively addressed by the threshold requirement reflected in our cases of a substantial risk of serious harm or an objectively intolerable risk of harm, see supra, at 11, and by the substantive requirements in the articulated standard.

4Petitioners did allude to an alternative chemical or combination of chemicals that could replace Kentuckys three-drug protocol in their post-trial brief, see App. 684, but based on the arguments presented there, it is clear they intended to refer only to other, allegedly less painful drugs that could substitute for potassium chloride as a heart-stopping agent, see id., at 701. Likewise, the only alternatives to the three-drug protocol presented to the Kentucky Supreme Court were those that replaced potassium chloride with other drugs for inducing cardiac arrest, or that omitted pancuronium bromide, or that added an analgesic to relieve pain. See Brief for Appellants in No. 2005SC00543, pp. 38, 39, 40.

5Justice Stevenss conclusion that the risk addressed by pancuronium bromide is vastly outweighed by the risk of pain at issue here, see post, at 3 (opinion concurring in judgment), depends, of course, on the magnitude of the risk of such pain. As explained, that risk is insignificant in light of the safeguards Kentucky has adopted.

6Resisting this point, the dissent rejects the expert testimony that problems with the intravenous administration of sodium thiopental would be obvious, see post, at 10, testimony based not only on the pain that would result from injecting the first drug into tissue rather than the vein, see App. 600601, but also on the swelling that would occur, see id., at 353. See also id., at 385386. Neither of these expert conclusions was disputed below.

7We do not agree with Justice Stevens that anything in our opinion undermines or remotely addresses the validity of capital punishment. See post, at 11. The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution.


TOP

Opinion

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Chief Justice Roberts announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Alito join.

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this caseeach convicted of double homicideacknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendments ban on cruel and unusual punishments, because of the risk that the protocols terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.

The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that [t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds, but concluded that Kentuckys procedure complies with the constitutional requirements against cruel and unusual punishment. App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

I

A

By the middle of the 19th century, hanging was the nearly universal form of execution in the United States. Campbell v. Wood, 511 U.S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash. 2d 469, 492, 627 P.2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? 82 Iowa L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find the most humane and practical method known to modern science of carrying into effect the sentence of death, New York became the first State to authorize electrocution as a form of capital punishment. Glass v. Louisiana, 471 U.S. 1080, and n. 4 (1985) (Brennan, J., dissenting from denial of certiorari); Denno, supra, at 373. By 1915, 11 other States had followed suit, motivated by the well-grounded belief that electrocution is less painful and more humane than hanging. Malloy v. South Carolina, 237 U.S. 180, 185 (1915) .

Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law etal. as Amici Curiae 59 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in Gregg v. Georgia, 428 U.S. 153 (1976) , however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. See S. Banner, The Death Penalty: An American History 192193, 296297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the States method of execution. See Brief for Petitioners 4; Fordham Brief 2122. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. 1 It is also the method used by the Federal Government. See 18 U.S.C. 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762763, 631632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493494, 541, 558559.

B

Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death. Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default ifas is the case with petitionersthe prisoner refuses to make a choice at least 20 days before the scheduled execution. 431.220(1)(b). If a court invalidates Kentuckys lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. 431.223.

Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of 431.220(1)(a). Kentuckys protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762763, 768. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. Id., at 761, 763764. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Id., at 984. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. Id., at 761762. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Id., at 975976. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Id., at 761.

Kentuckys execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. Id., at 203. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. Id., at 286. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. Id., at 978979. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing.

A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. Id., at 764. By statute, however, the physician is prohibited from participating in the conduct of an execution, except to certify the cause of death. Ky. Rev. Stat. Ann. 431.220(3). An electrocardiogram (EKG) verifies the death of the prisoner. App. 764. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harpers execution.

C

Petitioners Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death. The Kentucky Supreme Court upheld their convictions and sentences on direct appeal. See Baze v. Commonwealth, 965 S.W. 2d 817, 819820, 826 (1997), cert. denied, 523 U.S. 1083 (1998) ; Bowling v. Commonwealth, 873 S.W. 2d 175, 176177, 182 (1993), cert. denied, 513 U.S. 862 (1994) .

After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court for the Commonwealth of Kentucky, seeking to have Kentuckys lethal injection protocol declared unconstitutional. After a 7-day bench trial during which the trial court received the testimony of approximately 20 witnesses, including numerous experts, the court upheld the protocol, finding there to be minimal risk of various claims of improper administration of the protocol. App. 765769. On appeal, the Kentucky Supreme Court stated that a method of execution violates the Eighth Amendment when it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209 (2006). Applying that standard, the court affirmed. Id., at 212.

We granted certiorari to determine whether Kentuckys lethal injection protocol satisfies the Eighth Amendment. 551 U.S. ___ (2007). We hold that it does.

II

The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 666 (1962) , provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. We begin with the principle, settled by Gregg, that capital punishment is constitutional. See 428 U.S., at 177 (joint opinion of Stewart, Powell, and Stevens, JJ.). It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of executionno matter how humaneif only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.

Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an unnecessary risk of pain. Brief for Petitioners 38. Specifically, they argue that courts must evaluate (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures. Ibid. Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, Reply Brief for Petitioners 2324, n.9, but that the risk must be significant to trigger Eighth Amendment scrutiny, see Brief for Petitioners 3940; Reply Brief for Petitioners 2526.

Kentucky responds that this unnecessary risk standard is tantamount to a requirement that States adopt the least risk alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Brief for Respondents 29, 35. Instead, Kentucky urges the Court to approve the substantial risk test used by the courts below. Id., at 3435.

A

This Court has never invalidated a States chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U.S. 130 (1879) , we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. Id., at 134135. We noted there the difficulty of defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. Rather than undertake such an effort, the Wilkerson Court simply noted that it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden by the Eighth Amendment. Id., at 136. By way of example, the Court cited cases from England in which terror, pain, or disgrace were sometimes superadded to the sentence, such as where the condemned was embowelled alive, beheaded, and quartered, or instances of public dissection in murder, and burning alive. Id., at 135. In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. Id., at 137. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of painsuperadd[ing] pain to the death sentence through torture and the like.

We carried these principles further in In re Kemmler, 136 U.S. 436 (1890) . There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. Id., at 449. In passing over that question, however, we observed that [p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. Id., at 447. We noted that the New York statute adopting electrocution as a method of execution was passed in the effort to devise a more humane method of reaching the result. Ibid.

B

Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that if performed properly, an execution carried out under Kentuckys procedures would be humane and constitutional. Brief for Petitioners 31. That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. See Tr. of Oral Arg. 5; App. 493494 (testimony of petitioners expert that, if sodium thiopental is properly administered under the protocol, [i]n virtually every case, then that would be a humane death).

Instead, petitioners claim that there is a significant risk that the procedures will not be properly followedin particular, that the sodium thiopental will not be properly administered to achieve its intended effectresulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harmnot simply actually inflicting paincan qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. Helling v. McKinney, 509 U.S. 25, 33, 3435 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, and n.9 (1994).

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that [a]ccidents happen for which no man is to blame, id., at 462, and concluded that such an accident, with no suggestion of malevolence, id., at 463, did not give rise to an Eighth Amendment violation, id., at 463464.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, a hypothetical situation involving a series of abortive attempts at electrocution would present a different case. Id., at 471 (concurring opinion). In terms of our present Eighth Amendment analysis, such a situationunlike an innocent misadventure, id., at 470would demonstrate an objectively intolerable risk of harm that officials may not ignore. See Farmer, 511 U.S., at 846, and n. 9. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm. Id., at 842.

C

Much of petitioners case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a States method of execution merely by showing a slightly or marginally safer alternative.

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining best practices for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution proceduresa role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. See Bell v. Wolfish, 441 U.S. 520, 562 (1979) (The wide range of judgment calls that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government). Accordingly, we reject petitioners proposed unnecessary risk standard, as well as the dissents untoward risk variation. See post, at 2, 11 (opinion of Ginsburg,J.). 2

Instead, the proffered alternatives must effectively address a substantial risk of serious harm. Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a States refusal to change its method can be viewed as cruel and unusual under the Eighth Amendment. 3

III

In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as objectively intolerable when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. See supra, at 34, and n. 1. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. See supra, at 4. No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners.

In order to meet their heavy burden of showing that Kentuckys procedure is cruelly inhumane, Gregg, 428 U.S., at 175 (joint opinion of Stewart, Powell, and Stevens, JJ.), petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. See Tr. of Oral Arg. 27. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified.

A

Petitioners contend that there is a risk of improper administration of thiopental because the doses are difficult to mix into solution form and load into syringes; because the protocol fails to establish a rate of injection, which could lead to a failure of the IV; because it is possible that the IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered to the vein; because of inadequate facilities and training; and because Kentucky has no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopental has been administered. Brief for Petitioners 1220.

As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol. Id., at 4546. The state trial court, however, specifically found that [i]f the manufacturers instructions for reconstitution of Sodium Thiopental are followed, . . . there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task. App. 761. We cannot say that this finding is clearly erroneous, see Hernandez v. New York, 500 U.S. 352, 366 (1991) (plurality opinion), particularly when that finding is substantiated by expert testimony describing the task of reconstituting powder sodium thiopental into solution form as [n]ot difficult at all. You take a liquid, you inject it into a vial with the powder, then you shake it up until the powder dissolves and, youre done. The instructions are on the package insert. 5 Tr. 695 (Apr. 19, 2005).

Likewise, the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment. Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner. The most significant of these is the written protocols requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. App. 984. Kentucky currently uses a phlebotomist and an EMT, personnel who have daily experience establishing IV catheters for inmates in Kentuckys prison population. Id., at 273274; Tr. of Oral Arg. 2728. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. App. 984. These sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers. Ibid. In addition, the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences. Id., at 975. These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected. Id., at 279280, 337338, 978979.

The IV team has one hour to establish both the primary and backup IVs, a length of time the trial court found to be not excessive but rather necessary, id., at 762, contrary to petitioners claim that using an IV inserted after any more than ten or fifteen minutes of unsuccessful attempts is dangerous because the IV is almost certain to be unreliable, Brief for Petitioners 47. And, in any event, merely because the protocol gives the IV team one hour to establish intravenous access does not mean that team members are required to spend the entire hour in a futile attempt to do so. The qualifications of the IV team also substantially reduce the risk of IV infiltration.

In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration. Three of the Commonwealths medical experts testified that identifying signs of infiltration would be very obvious, even to the average person, because of the swelling that would result. App. 385386. See id., at 353, 600601. Kentuckys protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds. Id., at 978979. In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation.

B

Nor does Kentuckys failure to adopt petitioners proposed alternatives demonstrate that the Commonwealths execution procedure is cruel and unusual.

First, petitioners contend that Kentucky could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate. Brief for Petitioners 5157. That alternative was not proposed to the state courts below. 4 As a result, we are left without any findings on the effectiveness of petitioners barbiturate-only protocol, despite scattered references in the trial testimony to the sole use of sodium thiopental or pentobarbital as a preferred method of execution. See Reply Brief for Petitioners 18, n.6.

In any event, the Commonwealths continued use of the three-drug protocol cannot be viewed as posing an objectively intolerable risk when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. See App. 760761, n. 8 (Plaintiffs have not presented any scientific study indicating a better method of execution by lethal injection). Indeed, the State of Tennessee, after reviewing its execution procedures, rejected a proposal to adopt a one-drug protocol using sodium thiopental. The State concluded that the one-drug alternative would take longer than the three-drug method and that the required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death . . . . Workman, 486 F.3d, at 919 (Appendix A). We need not endorse the accuracy of those conclusions to note simply that the comparative efficacy of a one-drug method of execution is not so well established that Kentuckys failure to adopt it constitutes a violation of the Eighth Amendment.

Petitioners also contend that Kentucky should omit the second drug, pancuronium bromide, because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of the first drug. The state trial court, however, specifically found that pancuronium serves two purposes. First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. App. 763. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death. Ibid. Kentuckys decision to include the drug does not offend the Eighth Amendment. 5

Petitioners barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. See Brief for Dr. Kevin Concannon etal. as Amici Curiae 18, n.5. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, see Workman, supra, at 909 (describing the comparison to animal euthanasia as more of a debaters point), it overlooks the States legitimate interest in providing for a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopental in order to prevent a prolonged, undignified death. See Kimsma, Euthanasia and Euthanizing Drugs in The Netherlands, reprinted in Drug Use in Assisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A. Lipman eds. 1996). That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarianssuch as stunning the animal or severing its spinal cord, see 6 Tr. 758759 (Apr. 20, 2005)make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans.

Petitioners also fault the Kentucky protocol for lacking a systematic mechanism for monitoring the anesthetic depth of the prisoner. Under petitioners scheme, qualified personnel would employ monitoring equipment, such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify that a prisoner has achieved sufficient unconsciousness before injecting the final two drugs. The visual inspection performed by the warden and deputy warden, they maintain, is an inadequate substitute for the more sophisticated procedures they envision. Brief for Petitioners 19, 58.

At the outset, it is important to reemphasize that a proper dose of thiopental obviates the concern that a prisoner will not be sufficiently sedated. All the experts who testified at trial agreed on this point. The risks of failing to adopt additional monitoring procedures are thus even more remote and attenuated than the risks posed by the alleged inadequacies of Kentuckys procedures designed to ensure the delivery of thiopental. See Hamilton v. Jones, 472 F.3d 814, 817 (CA10 2007) (per curiam); Taylor v. Crawford, 487 F.3d 1072, 1084 (CA8 2007).

But more than this, Kentuckys expert testified that a blood pressure cuff would have no utility in assessing the level of the prisoners unconsciousness following the introduction of sodium thiopental, which depresses circulation. App. 578. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 (Apr. 2006); see Brown v. Beck, 445 F.3d 752, 754755 (CA4 2006) (Michael, J., dissenting). The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law, see Ky. Rev. Stat. Ann. 431.220(3), and the American Society of Anesthesiologists own ethical guidelines, see Brief for American Society of Anesthesiologists as Amicus Curiae 23, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is the standard of care in surgery requiring anesthesia, as the dissent points out. Post, at 6. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering.

The dissent believes that rough-and-ready tests for checking consciousnesscalling the inmates name, brushing his eyelashes, or presenting him with strong, noxious odorscould materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. See ibid. Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentuckys procedure, but not sufficient to prevent pain. See post, at 910. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmates bloodstream, see post, at 6, the record confirms that the visual inspection of the IV site under Kentuckys procedure achieves that objective. See supra, at 17. 6

The dissent would continue the stay of these executions (and presumably the many others held in abeyance pending decision in this case) and send the case back to the lower courts to determine whether such added measures redress an untoward risk of pain. Post, at 11. But an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the States legitimate interest in carrying out a sentence of death in a timely manner. See Baze v. Parker, 371 F.3d 310, 317 (CA6 2004) (petitioner Baze sentenced to death in 1994); Bowling v. Parker, 138 F.Supp. 2d 821, 840 (ED Ky. 2001) (petitioner Bowling sentenced to death in 1991).

Justice Stevens suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the States lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

***

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, [o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. 329 U.S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. [T]he power of a State to pass laws means little if the State cannot enforce them. McCleskey v. Zant, 499 U.S. 467, 491 (1991) . State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to objectively intolerable risk, Farmer, 511 U.S., at 846, and n.9, not simply the possibility of pain.

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggestedsuch as improper mixing of chemicals and improper setting of IVs by trained and experienced personnelcannot remotely be characterized as objectively intolerable. Kentuckys decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in todays consensus on lethal injection. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 657 (1992) (Stevens, J., dissenting); App. 755. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that todays decision will be any different. 7

The judgment below concluding that Kentuckys procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

It is so ordered.


Notes

1Twenty-seven of the 36 States that currently provide for capital punishment require execution by lethal injection as the sole method. See Ariz. Rev. Stat. Ann. 13704 (West 2001); Ark. Code Ann. 54617 (2006); Colo. Rev. Stat. Ann. 181.31202 (2007); Conn. Gen. Stat. 54100 (2007); Del. Code Ann., Tit. 11, 4209 (2006 Supp.); Ga. Code Ann. 171038 (2004); Ill. Comp. Stat., ch. 725, 5/1195 (West 2006); Ind. Code 353861 (West 2004); Kan. Stat. Ann. 224001 (2006 Cum. Supp.); Ky. Rev. Stat. Ann. 431.220 (West 2006); La. Stat. Ann. 15:569 (West 2005); Md. Crim. Law Code Ann. 2303 (Lexis Supp. 2007); Miss. Code Ann. 991951 (2007); Mont. Code Ann. 4619103 (2007); Nev. Rev. Stat. 176.355 (2007); N.J. Stat. Ann. 2C:492 (West 2007) (repealed Dec. 17, 2007); N.M. Stat. Ann. 311411 (2000); N.C. Gen. Stat. Ann. 15187 (Lexis 2007); N.Y. Correc. Law Ann. 658 (West 2003) (held unconstitutional in People v. LaValle, 3 N.Y. 3d 88, 130131, 817 N.E. 2d 341, 367 (2004)); Ohio Rev. Code Ann. 2949.22 (Lexis 2006); Okla. Stat., Tit. 22, 1014 (West 2001); Ore. Rev. Stat. 137.473 (2003); Pa. Stat. Ann., Tit. 61, 3004 (Purdon 1999); S.D. Codified Laws 23A27A32 (Supp. 2007); Tenn. Code Ann. 4023114 (2006); Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. 77185.5 (Lexis Supp. 2007); Wyo. Stat. Ann. 713904 (2007). Nine States allow for lethal injection in addition to an alternative method, such as electrocution, see Ala. Code 151882 to 82.1 (Supp. 2007); Fla. Stat. 922.105 (2006); S.C. Code Ann. 243530 (2007); Va. Code Ann. 53.1234 (Lexis Supp. 2007), hanging, see N.H. Rev. Stat. Ann. 630:5 (2007); Wash. Rev. Code 10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. 3604 (West 2000); Mo. Rev. Stat. 546.720 (2007 Cum. Supp.), or firing squad, see Idaho Code 192716 (Lexis 2004). Nebraska is the only State whose statutes specify electrocution as the sole method of execution, see Neb. Rev. Stat. 292532 (1995), but the Nebraska Supreme Court recently struck down that method under the Nebraska Constitution, see State v. Mata, No. S051268, 2008 WL 351695, *40 (2008). Although it is undisputed that the States using lethal injection adopted the protocol first developed by Oklahoma without significant independent review of the procedure, it is equally undisputed that, in moving to lethal injection, the States were motivated by a desire to find a more humane alternative to then-existing methods. See Fordham Brief 23. In this regard, Kentucky was no different. See id., at 2930 (quoting statement by the State Representative who sponsored the bill to replace electrocution with lethal injection in Kentucky: if we are going to do capital punishment, it needs to be done in the most humane manner (internal quotation marks omitted)).

2The difficulties inherent in such approaches are exemplified by the controversy surrounding the study of lethal injection published in the April 2005 edition of the British medical journal the Lancet. After examining thiopental concentrations in toxicology reports based on blood samples drawn from 49 executed inmates, the study concluded that most of the executed inmates had concentrations that would not be expected to produce a surgical plane of anaesthesia, and 21 (43%) had concentrations consistent with consciousness. Koniaris, Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 14121413. The study was widely cited around the country in motions to stay executions and briefs on the merits. See, e.g., Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study). But shortly after the Lancet study appeared, peer responses by seven medical researchers criticized the methodology supporting the original conclusions. See Groner, Inadequate Anaesthesia in Lethal Injection for Execution, 366 Lancet 10731074 (Sept. 2005). These researchers noted that because the blood samples were taken several hours to days after the inmates deaths, the postmortem concentrations of thiopentala fat-soluble compound that passively diffuses from blood into tissuecould not be relied on as accurate indicators for concentrations during life. Id., at 1073. The authors of the original study responded to defend their methodology. Id., at 10741076. See also post, at 24 (Breyer, J., concurring in judgment). We do not purport to take sides in this dispute. We cite it only to confirm that a best practices approach, calling for the weighing of relative risks without some measure of deference to a States choice of execution procedures, would involve the courts in debatable matters far exceeding their expertise.

3Justice Thomas agrees that courts have neither the authority nor the expertise to function as boards of inquiry determining best practices for executions, see post, at 9 (opinion concurring in judgment) (quoting this opinion); post, at 13, but contends that the standard we adopt inevitably poses such concerns. In our view, those concerns are effectively addressed by the threshold requirement reflected in our cases of a substantial risk of serious harm or an objectively intolerable risk of harm, see supra, at 11, and by the substantive requirements in the articulated standard.

4Petitioners did allude to an alternative chemical or combination of chemicals that could replace Kentuckys three-drug protocol in their post-trial brief, see App. 684, but based on the arguments presented there, it is clear they intended to refer only to other, allegedly less painful drugs that could substitute for potassium chloride as a heart-stopping agent, see id., at 701. Likewise, the only alternatives to the three-drug protocol presented to the Kentucky Supreme Court were those that replaced potassium chloride with other drugs for inducing cardiac arrest, or that omitted pancuronium bromide, or that added an analgesic to relieve pain. See Brief for Appellants in No. 2005SC00543, pp. 38, 39, 40.

5Justice Stevenss conclusion that the risk addressed by pancuronium bromide is vastly outweighed by the risk of pain at issue here, see post, at 3 (opinion concurring in judgment), depends, of course, on the magnitude of the risk of such pain. As explained, that risk is insignificant in light of the safeguards Kentucky has adopted.

6Resisting this point, the dissent rejects the expert testimony that problems with the intravenous administration of sodium thiopental would be obvious, see post, at 10, testimony based not only on the pain that would result from injecting the first drug into tissue rather than the vein, see App. 600601, but also on the swelling that would occur, see id., at 353. See also id., at 385386. Neither of these expert conclusions was disputed below.

7We do not agree with Justice Stevens that anything in our opinion undermines or remotely addresses the validity of capital punishment. See post, at 11. The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution.


TOP

Opinion

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Chief Justice Roberts announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Alito join.

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this caseeach convicted of double homicideacknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendments ban on cruel and unusual punishments, because of the risk that the protocols terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.

The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that [t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds, but concluded that Kentuckys procedure complies with the constitutional requirements against cruel and unusual punishment. App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

I

A

By the middle of the 19th century, hanging was the nearly universal form of execution in the United States. Campbell v. Wood, 511 U.S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash. 2d 469, 492, 627 P.2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? 82 Iowa L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find the most humane and practical method known to modern science of carrying into effect the sentence of death, New York became the first State to authorize electrocution as a form of capital punishment. Glass v. Louisiana, 471 U.S. 1080, and n. 4 (1985) (Brennan, J., dissenting from denial of certiorari); Denno, supra, at 373. By 1915, 11 other States had followed suit, motivated by the well-grounded belief that electrocution is less painful and more humane than hanging. Malloy v. South Carolina, 237 U.S. 180, 185 (1915) .

Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law etal. as Amici Curiae 59 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in Gregg v. Georgia, 428 U.S. 153 (1976) , however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. See S. Banner, The Death Penalty: An American History 192193, 296297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the States method of execution. See Brief for Petitioners 4; Fordham Brief 2122. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. 1 It is also the method used by the Federal Government. See 18 U.S.C. 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762763, 631632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493494, 541, 558559.

B

Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death. Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default ifas is the case with petitionersthe prisoner refuses to make a choice at least 20 days before the scheduled execution. 431.220(1)(b). If a court invalidates Kentuckys lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. 431.223.

Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of 431.220(1)(a). Kentuckys protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762763, 768. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. Id., at 761, 763764. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Id., at 984. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. Id., at 761762. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Id., at 975976. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Id., at 761.

Kentuckys execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. Id., at 203. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. Id., at 286. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. Id., at 978979. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing.

A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. Id., at 764. By statute, however, the physician is prohibited from participating in the conduct of an execution, except to certify the cause of death. Ky. Rev. Stat. Ann. 431.220(3). An electrocardiogram (EKG) verifies the death of the prisoner. App. 764. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harpers execution.

C

Petitioners Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death. The Kentucky Supreme Court upheld their convictions and sentences on direct appeal. See Baze v. Commonwealth, 965 S.W. 2d 817, 819820, 826 (1997), cert. denied, 523 U.S. 1083 (1998) ; Bowling v. Commonwealth, 873 S.W. 2d 175, 176177, 182 (1993), cert. denied, 513 U.S. 862 (1994) .

After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court for the Commonwealth of Kentucky, seeking to have Kentuckys lethal injection protocol declared unconstitutional. After a 7-day bench trial during which the trial court received the testimony of approximately 20 witnesses, including numerous experts, the court upheld the protocol, finding there to be minimal risk of various claims of improper administration of the protocol. App. 765769. On appeal, the Kentucky Supreme Court stated that a method of execution violates the Eighth Amendment when it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209 (2006). Applying that standard, the court affirmed. Id., at 212.

We granted certiorari to determine whether Kentuckys lethal injection protocol satisfies the Eighth Amendment. 551 U.S. ___ (2007). We hold that it does.

II

The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 666 (1962) , provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. We begin with the principle, settled by Gregg, that capital punishment is constitutional. See 428 U.S., at 177 (joint opinion of Stewart, Powell, and Stevens, JJ.). It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of executionno matter how humaneif only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.

Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an unnecessary risk of pain. Brief for Petitioners 38. Specifically, they argue that courts must evaluate (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures. Ibid. Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, Reply Brief for Petitioners 2324, n.9, but that the risk must be significant to trigger Eighth Amendment scrutiny, see Brief for Petitioners 3940; Reply Brief for Petitioners 2526.

Kentucky responds that this unnecessary risk standard is tantamount to a requirement that States adopt the least risk alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Brief for Respondents 29, 35. Instead, Kentucky urges the Court to approve the substantial risk test used by the courts below. Id., at 3435.

A

This Court has never invalidated a States chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U.S. 130 (1879) , we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. Id., at 134135. We noted there the difficulty of defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. Rather than undertake such an effort, the Wilkerson Court simply noted that it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden by the Eighth Amendment. Id., at 136. By way of example, the Court cited cases from England in which terror, pain, or disgrace were sometimes superadded to the sentence, such as where the condemned was embowelled alive, beheaded, and quartered, or instances of public dissection in murder, and burning alive. Id., at 135. In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. Id., at 137. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of painsuperadd[ing] pain to the death sentence through torture and the like.

We carried these principles further in In re Kemmler, 136 U.S. 436 (1890) . There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. Id., at 449. In passing over that question, however, we observed that [p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. Id., at 447. We noted that the New York statute adopting electrocution as a method of execution was passed in the effort to devise a more humane method of reaching the result. Ibid.

B

Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that if performed properly, an execution carried out under Kentuckys procedures would be humane and constitutional. Brief for Petitioners 31. That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. See Tr. of Oral Arg. 5; App. 493494 (testimony of petitioners expert that, if sodium thiopental is properly administered under the protocol, [i]n virtually every case, then that would be a humane death).

Instead, petitioners claim that there is a significant risk that the procedures will not be properly followedin particular, that the sodium thiopental will not be properly administered to achieve its intended effectresulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harmnot simply actually inflicting paincan qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. Helling v. McKinney, 509 U.S. 25, 33, 3435 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, and n.9 (1994).

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that [a]ccidents happen for which no man is to blame, id., at 462, and concluded that such an accident, with no suggestion of malevolence, id., at 463, did not give rise to an Eighth Amendment violation, id., at 463464.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, a hypothetical situation involving a series of abortive attempts at electrocution would present a different case. Id., at 471 (concurring opinion). In terms of our present Eighth Amendment analysis, such a situationunlike an innocent misadventure, id., at 470would demonstrate an objectively intolerable risk of harm that officials may not ignore. See Farmer, 511 U.S., at 846, and n. 9. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm. Id., at 842.

C

Much of petitioners case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a States method of execution merely by showing a slightly or marginally safer alternative.

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining best practices for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution proceduresa role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. See Bell v. Wolfish, 441 U.S. 520, 562 (1979) (The wide range of judgment calls that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government). Accordingly, we reject petitioners proposed unnecessary risk standard, as well as the dissents untoward risk variation. See post, at 2, 11 (opinion of Ginsburg,J.). 2

Instead, the proffered alternatives must effectively address a substantial risk of serious harm. Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a States refusal to change its method can be viewed as cruel and unusual under the Eighth Amendment. 3

III

In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as objectively intolerable when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. See supra, at 34, and n. 1. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. See supra, at 4. No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners.

In order to meet their heavy burden of showing that Kentuckys procedure is cruelly inhumane, Gregg, 428 U.S., at 175 (joint opinion of Stewart, Powell, and Stevens, JJ.), petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. See Tr. of Oral Arg. 27. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified.

A

Petitioners contend that there is a risk of improper administration of thiopental because the doses are difficult to mix into solution form and load into syringes; because the protocol fails to establish a rate of injection, which could lead to a failure of the IV; because it is possible that the IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered to the vein; because of inadequate facilities and training; and because Kentucky has no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopental has been administered. Brief for Petitioners 1220.

As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol. Id., at 4546. The state trial court, however, specifically found that [i]f the manufacturers instructions for reconstitution of Sodium Thiopental are followed, . . . there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task. App. 761. We cannot say that this finding is clearly erroneous, see Hernandez v. New York, 500 U.S. 352, 366 (1991) (plurality opinion), particularly when that finding is substantiated by expert testimony describing the task of reconstituting powder sodium thiopental into solution form as [n]ot difficult at all. You take a liquid, you inject it into a vial with the powder, then you shake it up until the powder dissolves and, youre done. The instructions are on the package insert. 5 Tr. 695 (Apr. 19, 2005).

Likewise, the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment. Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner. The most significant of these is the written protocols requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. App. 984. Kentucky currently uses a phlebotomist and an EMT, personnel who have daily experience establishing IV catheters for inmates in Kentuckys prison population. Id., at 273274; Tr. of Oral Arg. 2728. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. App. 984. These sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers. Ibid. In addition, the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences. Id., at 975. These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected. Id., at 279280, 337338, 978979.

The IV team has one hour to establish both the primary and backup IVs, a length of time the trial court found to be not excessive but rather necessary, id., at 762, contrary to petitioners claim that using an IV inserted after any more than ten or fifteen minutes of unsuccessful attempts is dangerous because the IV is almost certain to be unreliable, Brief for Petitioners 47. And, in any event, merely because the protocol gives the IV team one hour to establish intravenous access does not mean that team members are required to spend the entire hour in a futile attempt to do so. The qualifications of the IV team also substantially reduce the risk of IV infiltration.

In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration. Three of the Commonwealths medical experts testified that identifying signs of infiltration would be very obvious, even to the average person, because of the swelling that would result. App. 385386. See id., at 353, 600601. Kentuckys protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds. Id., at 978979. In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation.

B

Nor does Kentuckys failure to adopt petitioners proposed alternatives demonstrate that the Commonwealths execution procedure is cruel and unusual.

First, petitioners contend that Kentucky could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate. Brief for Petitioners 5157. That alternative was not proposed to the state courts below. 4 As a result, we are left without any findings on the effectiveness of petitioners barbiturate-only protocol, despite scattered references in the trial testimony to the sole use of sodium thiopental or pentobarbital as a preferred method of execution. See Reply Brief for Petitioners 18, n.6.

In any event, the Commonwealths continued use of the three-drug protocol cannot be viewed as posing an objectively intolerable risk when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. See App. 760761, n. 8 (Plaintiffs have not presented any scientific study indicating a better method of execution by lethal injection). Indeed, the State of Tennessee, after reviewing its execution procedures, rejected a proposal to adopt a one-drug protocol using sodium thiopental. The State concluded that the one-drug alternative would take longer than the three-drug method and that the required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death . . . . Workman, 486 F.3d, at 919 (Appendix A). We need not endorse the accuracy of those conclusions to note simply that the comparative efficacy of a one-drug method of execution is not so well established that Kentuckys failure to adopt it constitutes a violation of the Eighth Amendment.

Petitioners also contend that Kentucky should omit the second drug, pancuronium bromide, because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of the first drug. The state trial court, however, specifically found that pancuronium serves two purposes. First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. App. 763. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death. Ibid. Kentuckys decision to include the drug does not offend the Eighth Amendment. 5

Petitioners barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. See Brief for Dr. Kevin Concannon etal. as Amici Curiae 18, n.5. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, see Workman, supra, at 909 (describing the comparison to animal euthanasia as more of a debaters point), it overlooks the States legitimate interest in providing for a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopental in order to prevent a prolonged, undignified death. See Kimsma, Euthanasia and Euthanizing Drugs in The Netherlands, reprinted in Drug Use in Assisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A. Lipman eds. 1996). That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarianssuch as stunning the animal or severing its spinal cord, see 6 Tr. 758759 (Apr. 20, 2005)make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans.

Petitioners also fault the Kentucky protocol for lacking a systematic mechanism for monitoring the anesthetic depth of the prisoner. Under petitioners scheme, qualified personnel would employ monitoring equipment, such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify that a prisoner has achieved sufficient unconsciousness before injecting the final two drugs. The visual inspection performed by the warden and deputy warden, they maintain, is an inadequate substitute for the more sophisticated procedures they envision. Brief for Petitioners 19, 58.

At the outset, it is important to reemphasize that a proper dose of thiopental obviates the concern that a prisoner will not be sufficiently sedated. All the experts who testified at trial agreed on this point. The risks of failing to adopt additional monitoring procedures are thus even more remote and attenuated than the risks posed by the alleged inadequacies of Kentuckys procedures designed to ensure the delivery of thiopental. See Hamilton v. Jones, 472 F.3d 814, 817 (CA10 2007) (per curiam); Taylor v. Crawford, 487 F.3d 1072, 1084 (CA8 2007).

But more than this, Kentuckys expert testified that a blood pressure cuff would have no utility in assessing the level of the prisoners unconsciousness following the introduction of sodium thiopental, which depresses circulation. App. 578. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 (Apr. 2006); see Brown v. Beck, 445 F.3d 752, 754755 (CA4 2006) (Michael, J., dissenting). The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law, see Ky. Rev. Stat. Ann. 431.220(3), and the American Society of Anesthesiologists own ethical guidelines, see Brief for American Society of Anesthesiologists as Amicus Curiae 23, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is the standard of care in surgery requiring anesthesia, as the dissent points out. Post, at 6. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering.

The dissent believes that rough-and-ready tests for checking consciousnesscalling the inmates name, brushing his eyelashes, or presenting him with strong, noxious odorscould materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. See ibid. Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentuckys procedure, but not sufficient to prevent pain. See post, at 910. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmates bloodstream, see post, at 6, the record confirms that the visual inspection of the IV site under Kentuckys procedure achieves that objective. See supra, at 17. 6

The dissent would continue the stay of these executions (and presumably the many others held in abeyance pending decision in this case) and send the case back to the lower courts to determine whether such added measures redress an untoward risk of pain. Post, at 11. But an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the States legitimate interest in carrying out a sentence of death in a timely manner. See Baze v. Parker, 371 F.3d 310, 317 (CA6 2004) (petitioner Baze sentenced to death in 1994); Bowling v. Parker, 138 F.Supp. 2d 821, 840 (ED Ky. 2001) (petitioner Bowling sentenced to death in 1991).

Justice Stevens suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the States lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

***

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, [o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. 329 U.S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. [T]he power of a State to pass laws means little if the State cannot enforce them. McCleskey v. Zant, 499 U.S. 467, 491 (1991) . State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to objectively intolerable risk, Farmer, 511 U.S., at 846, and n.9, not simply the possibility of pain.

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggestedsuch as improper mixing of chemicals and improper setting of IVs by trained and experienced personnelcannot remotely be characterized as objectively intolerable. Kentuckys decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in todays consensus on lethal injection. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 657 (1992) (Stevens, J., dissenting); App. 755. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that todays decision will be any different. 7

The judgment below concluding that Kentuckys procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

It is so ordered.


Notes

1Twenty-seven of the 36 States that currently provide for capital punishment require execution by lethal injection as the sole method. See Ariz. Rev. Stat. Ann. 13704 (West 2001); Ark. Code Ann. 54617 (2006); Colo. Rev. Stat. Ann. 181.31202 (2007); Conn. Gen. Stat. 54100 (2007); Del. Code Ann., Tit. 11, 4209 (2006 Supp.); Ga. Code Ann. 171038 (2004); Ill. Comp. Stat., ch. 725, 5/1195 (West 2006); Ind. Code 353861 (West 2004); Kan. Stat. Ann. 224001 (2006 Cum. Supp.); Ky. Rev. Stat. Ann. 431.220 (West 2006); La. Stat. Ann. 15:569 (West 2005); Md. Crim. Law Code Ann. 2303 (Lexis Supp. 2007); Miss. Code Ann. 991951 (2007); Mont. Code Ann. 4619103 (2007); Nev. Rev. Stat. 176.355 (2007); N.J. Stat. Ann. 2C:492 (West 2007) (repealed Dec. 17, 2007); N.M. Stat. Ann. 311411 (2000); N.C. Gen. Stat. Ann. 15187 (Lexis 2007); N.Y. Correc. Law Ann. 658 (West 2003) (held unconstitutional in People v. LaValle, 3 N.Y. 3d 88, 130131, 817 N.E. 2d 341, 367 (2004)); Ohio Rev. Code Ann. 2949.22 (Lexis 2006); Okla. Stat., Tit. 22, 1014 (West 2001); Ore. Rev. Stat. 137.473 (2003); Pa. Stat. Ann., Tit. 61, 3004 (Purdon 1999); S.D. Codified Laws 23A27A32 (Supp. 2007); Tenn. Code Ann. 4023114 (2006); Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. 77185.5 (Lexis Supp. 2007); Wyo. Stat. Ann. 713904 (2007). Nine States allow for lethal injection in addition to an alternative method, such as electrocution, see Ala. Code 151882 to 82.1 (Supp. 2007); Fla. Stat. 922.105 (2006); S.C. Code Ann. 243530 (2007); Va. Code Ann. 53.1234 (Lexis Supp. 2007), hanging, see N.H. Rev. Stat. Ann. 630:5 (2007); Wash. Rev. Code 10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. 3604 (West 2000); Mo. Rev. Stat. 546.720 (2007 Cum. Supp.), or firing squad, see Idaho Code 192716 (Lexis 2004). Nebraska is the only State whose statutes specify electrocution as the sole method of execution, see Neb. Rev. Stat. 292532 (1995), but the Nebraska Supreme Court recently struck down that method under the Nebraska Constitution, see State v. Mata, No. S051268, 2008 WL 351695, *40 (2008). Although it is undisputed that the States using lethal injection adopted the protocol first developed by Oklahoma without significant independent review of the procedure, it is equally undisputed that, in moving to lethal injection, the States were motivated by a desire to find a more humane alternative to then-existing methods. See Fordham Brief 23. In this regard, Kentucky was no different. See id., at 2930 (quoting statement by the State Representative who sponsored the bill to replace electrocution with lethal injection in Kentucky: if we are going to do capital punishment, it needs to be done in the most humane manner (internal quotation marks omitted)).

2The difficulties inherent in such approaches are exemplified by the controversy surrounding the study of lethal injection published in the April 2005 edition of the British medical journal the Lancet. After examining thiopental concentrations in toxicology reports based on blood samples drawn from 49 executed inmates, the study concluded that most of the executed inmates had concentrations that would not be expected to produce a surgical plane of anaesthesia, and 21 (43%) had concentrations consistent with consciousness. Koniaris, Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 14121413. The study was widely cited around the country in motions to stay executions and briefs on the merits. See, e.g., Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study). But shortly after the Lancet study appeared, peer responses by seven medical researchers criticized the methodology supporting the original conclusions. See Groner, Inadequate Anaesthesia in Lethal Injection for Execution, 366 Lancet 10731074 (Sept. 2005). These researchers noted that because the blood samples were taken several hours to days after the inmates deaths, the postmortem concentrations of thiopentala fat-soluble compound that passively diffuses from blood into tissuecould not be relied on as accurate indicators for concentrations during life. Id., at 1073. The authors of the original study responded to defend their methodology. Id., at 10741076. See also post, at 24 (Breyer, J., concurring in judgment). We do not purport to take sides in this dispute. We cite it only to confirm that a best practices approach, calling for the weighing of relative risks without some measure of deference to a States choice of execution procedures, would involve the courts in debatable matters far exceeding their expertise.

3Justice Thomas agrees that courts have neither the authority nor the expertise to function as boards of inquiry determining best practices for executions, see post, at 9 (opinion concurring in judgment) (quoting this opinion); post, at 13, but contends that the standard we adopt inevitably poses such concerns. In our view, those concerns are effectively addressed by the threshold requirement reflected in our cases of a substantial risk of serious harm or an objectively intolerable risk of harm, see supra, at 11, and by the substantive requirements in the articulated standard.

4Petitioners did allude to an alternative chemical or combination of chemicals that could replace Kentuckys three-drug protocol in their post-trial brief, see App. 684, but based on the arguments presented there, it is clear they intended to refer only to other, allegedly less painful drugs that could substitute for potassium chloride as a heart-stopping agent, see id., at 701. Likewise, the only alternatives to the three-drug protocol presented to the Kentucky Supreme Court were those that replaced potassium chloride with other drugs for inducing cardiac arrest, or that omitted pancuronium bromide, or that added an analgesic to relieve pain. See Brief for Appellants in No. 2005SC00543, pp. 38, 39, 40.

5Justice Stevenss conclusion that the risk addressed by pancuronium bromide is vastly outweighed by the risk of pain at issue here, see post, at 3 (opinion concurring in judgment), depends, of course, on the magnitude of the risk of such pain. As explained, that risk is insignificant in light of the safeguards Kentucky has adopted.

6Resisting this point, the dissent rejects the expert testimony that problems with the intravenous administration of sodium thiopental would be obvious, see post, at 10, testimony based not only on the pain that would result from injecting the first drug into tissue rather than the vein, see App. 600601, but also on the swelling that would occur, see id., at 353. See also id., at 385386. Neither of these expert conclusions was disputed below.

7We do not agree with Justice Stevens that anything in our opinion undermines or remotely addresses the validity of capital punishment. See post, at 11. The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution.


TOP

Opinion

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Chief Justice Roberts announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Alito join.

Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty.

Petitioners in this caseeach convicted of double homicideacknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendments ban on cruel and unusual punishments, because of the risk that the protocols terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried.

The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that [t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds, but concluded that Kentuckys procedure complies with the constitutional requirements against cruel and unusual punishment. App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed.

I

A

By the middle of the 19th century, hanging was the nearly universal form of execution in the United States. Campbell v. Wood, 511 U.S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash. 2d 469, 492, 627 P.2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? 82 Iowa L.Rev. 319, 364 (1997) (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find the most humane and practical method known to modern science of carrying into effect the sentence of death, New York became the first State to authorize electrocution as a form of capital punishment. Glass v. Louisiana, 471 U.S. 1080, and n. 4 (1985) (Brennan, J., dissenting from denial of certiorari); Denno, supra, at 373. By 1915, 11 other States had followed suit, motivated by the well-grounded belief that electrocution is less painful and more humane than hanging. Malloy v. South Carolina, 237 U.S. 180, 185 (1915) .

Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law etal. as Amici Curiae 59 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in Gregg v. Georgia, 428 U.S. 153 (1976) , however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. See S. Banner, The Death Penalty: An American History 192193, 296297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the States method of execution. See Brief for Petitioners 4; Fordham Brief 2122. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. 1 It is also the method used by the Federal Government. See 18 U.S.C. 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (CA6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762763, 631632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493494, 541, 558559.

B

Kentucky replaced electrocution with lethal injection in 1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death. Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Prisoners sentenced before 1998 have the option of electing either electrocution or lethal injection, but lethal injection is the default ifas is the case with petitionersthe prisoner refuses to make a choice at least 20 days before the scheduled execution. 431.220(1)(b). If a court invalidates Kentuckys lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. 431.223.

Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to comply with the requirements of 431.220(1)(a). Kentuckys protocol called for the injection of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In 2004, as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762763, 768. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. Id., at 761, 763764. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Id., at 984. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. Id., at 761762. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Id., at 975976. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Id., at 761.

Kentuckys execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. Id., at 203. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. Id., at 286. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. Id., at 978979. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing.

A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. Id., at 764. By statute, however, the physician is prohibited from participating in the conduct of an execution, except to certify the cause of death. Ky. Rev. Stat. Ann. 431.220(3). An electrocardiogram (EKG) verifies the death of the prisoner. App. 764. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harpers execution.

C

Petitioners Ralph Baze and Thomas C. Bowling were each convicted of two counts of capital murder and sentenced to death. The Kentucky Supreme Court upheld their convictions and sentences on direct appeal. See Baze v. Commonwealth, 965 S.W. 2d 817, 819820, 826 (1997), cert. denied, 523 U.S. 1083 (1998) ; Bowling v. Commonwealth, 873 S.W. 2d 175, 176177, 182 (1993), cert. denied, 513 U.S. 862 (1994) .

After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court for the Commonwealth of Kentucky, seeking to have Kentuckys lethal injection protocol declared unconstitutional. After a 7-day bench trial during which the trial court received the testimony of approximately 20 witnesses, including numerous experts, the court upheld the protocol, finding there to be minimal risk of various claims of improper administration of the protocol. App. 765769. On appeal, the Kentucky Supreme Court stated that a method of execution violates the Eighth Amendment when it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209 (2006). Applying that standard, the court affirmed. Id., at 212.

We granted certiorari to determine whether Kentuckys lethal injection protocol satisfies the Eighth Amendment. 551 U.S. ___ (2007). We hold that it does.

II

The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 666 (1962) , provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. We begin with the principle, settled by Gregg, that capital punishment is constitutional. See 428 U.S., at 177 (joint opinion of Stewart, Powell, and Stevens, JJ.). It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of executionno matter how humaneif only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.

Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an unnecessary risk of pain. Brief for Petitioners 38. Specifically, they argue that courts must evaluate (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures. Ibid. Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, Reply Brief for Petitioners 2324, n.9, but that the risk must be significant to trigger Eighth Amendment scrutiny, see Brief for Petitioners 3940; Reply Brief for Petitioners 2526.

Kentucky responds that this unnecessary risk standard is tantamount to a requirement that States adopt the least risk alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Brief for Respondents 29, 35. Instead, Kentucky urges the Court to approve the substantial risk test used by the courts below. Id., at 3435.

A

This Court has never invalidated a States chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In Wilkerson v. Utah, 99 U.S. 130 (1879) , we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. Id., at 134135. We noted there the difficulty of defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. Rather than undertake such an effort, the Wilkerson Court simply noted that it is safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden by the Eighth Amendment. Id., at 136. By way of example, the Court cited cases from England in which terror, pain, or disgrace were sometimes superadded to the sentence, such as where the condemned was embowelled alive, beheaded, and quartered, or instances of public dissection in murder, and burning alive. Id., at 135. In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. Id., at 137. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of painsuperadd[ing] pain to the death sentence through torture and the like.

We carried these principles further in In re Kemmler, 136 U.S. 436 (1890) . There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. Id., at 449. In passing over that question, however, we observed that [p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. Id., at 447. We noted that the New York statute adopting electrocution as a method of execution was passed in the effort to devise a more humane method of reaching the result. Ibid.

B

Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that if performed properly, an execution carried out under Kentuckys procedures would be humane and constitutional. Brief for Petitioners 31. That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. See Tr. of Oral Arg. 5; App. 493494 (testimony of petitioners expert that, if sodium thiopental is properly administered under the protocol, [i]n virtually every case, then that would be a humane death).

Instead, petitioners claim that there is a significant risk that the procedures will not be properly followedin particular, that the sodium thiopental will not be properly administered to achieve its intended effectresulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harmnot simply actually inflicting paincan qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers. Helling v. McKinney, 509 U.S. 25, 33, 3435 (1993) (emphasis added). We have explained that to prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, and n.9 (1994).

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that [a]ccidents happen for which no man is to blame, id., at 462, and concluded that such an accident, with no suggestion of malevolence, id., at 463, did not give rise to an Eighth Amendment violation, id., at 463464.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, a hypothetical situation involving a series of abortive attempts at electrocution would present a different case. Id., at 471 (concurring opinion). In terms of our present Eighth Amendment analysis, such a situationunlike an innocent misadventure, id., at 470would demonstrate an objectively intolerable risk of harm that officials may not ignore. See Farmer, 511 U.S., at 846, and n. 9. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm. Id., at 842.

C

Much of petitioners case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a States method of execution merely by showing a slightly or marginally safer alternative.

Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining best practices for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution proceduresa role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. See Bell v. Wolfish, 441 U.S. 520, 562 (1979) (The wide range of judgment calls that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government). Accordingly, we reject petitioners proposed unnecessary risk standard, as well as the dissents untoward risk variation. See post, at 2, 11 (opinion of Ginsburg,J.). 2

Instead, the proffered alternatives must effectively address a substantial risk of serious harm. Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a States refusal to change its method can be viewed as cruel and unusual under the Eighth Amendment. 3

III

In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as objectively intolerable when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. See supra, at 34, and n. 1. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. See supra, at 4. No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners.

In order to meet their heavy burden of showing that Kentuckys procedure is cruelly inhumane, Gregg, 428 U.S., at 175 (joint opinion of Stewart, Powell, and Stevens, JJ.), petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. See Tr. of Oral Arg. 27. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified.

A

Petitioners contend that there is a risk of improper administration of thiopental because the doses are difficult to mix into solution form and load into syringes; because the protocol fails to establish a rate of injection, which could lead to a failure of the IV; because it is possible that the IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered to the vein; because of inadequate facilities and training; and because Kentucky has no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopental has been administered. Brief for Petitioners 1220.

As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol. Id., at 4546. The state trial court, however, specifically found that [i]f the manufacturers instructions for reconstitution of Sodium Thiopental are followed, . . . there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task. App. 761. We cannot say that this finding is clearly erroneous, see Hernandez v. New York, 500 U.S. 352, 366 (1991) (plurality opinion), particularly when that finding is substantiated by expert testimony describing the task of reconstituting powder sodium thiopental into solution form as [n]ot difficult at all. You take a liquid, you inject it into a vial with the powder, then you shake it up until the powder dissolves and, youre done. The instructions are on the package insert. 5 Tr. 695 (Apr. 19, 2005).

Likewise, the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment. Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner. The most significant of these is the written protocols requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. App. 984. Kentucky currently uses a phlebotomist and an EMT, personnel who have daily experience establishing IV catheters for inmates in Kentuckys prison population. Id., at 273274; Tr. of Oral Arg. 2728. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. App. 984. These sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers. Ibid. In addition, the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences. Id., at 975. These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected. Id., at 279280, 337338, 978979.

The IV team has one hour to establish both the primary and backup IVs, a length of time the trial court found to be not excessive but rather necessary, id., at 762, contrary to petitioners claim that using an IV inserted after any more than ten or fifteen minutes of unsuccessful attempts is dangerous because the IV is almost certain to be unreliable, Brief for Petitioners 47. And, in any event, merely because the protocol gives the IV team one hour to establish intravenous access does not mean that team members are required to spend the entire hour in a futile attempt to do so. The qualifications of the IV team also substantially reduce the risk of IV infiltration.

In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration. Three of the Commonwealths medical experts testified that identifying signs of infiltration would be very obvious, even to the average person, because of the swelling that would result. App. 385386. See id., at 353, 600601. Kentuckys protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds. Id., at 978979. In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation.

B

Nor does Kentuckys failure to adopt petitioners proposed alternatives demonstrate that the Commonwealths execution procedure is cruel and unusual.

First, petitioners contend that Kentucky could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate. Brief for Petitioners 5157. That alternative was not proposed to the state courts below. 4 As a result, we are left without any findings on the effectiveness of petitioners barbiturate-only protocol, despite scattered references in the trial testimony to the sole use of sodium thiopental or pentobarbital as a preferred method of execution. See Reply Brief for Petitioners 18, n.6.

In any event, the Commonwealths continued use of the three-drug protocol cannot be viewed as posing an objectively intolerable risk when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. See App. 760761, n. 8 (Plaintiffs have not presented any scientific study indicating a better method of execution by lethal injection). Indeed, the State of Tennessee, after reviewing its execution procedures, rejected a proposal to adopt a one-drug protocol using sodium thiopental. The State concluded that the one-drug alternative would take longer than the three-drug method and that the required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death . . . . Workman, 486 F.3d, at 919 (Appendix A). We need not endorse the accuracy of those conclusions to note simply that the comparative efficacy of a one-drug method of execution is not so well established that Kentuckys failure to adopt it constitutes a violation of the Eighth Amendment.

Petitioners also contend that Kentucky should omit the second drug, pancuronium bromide, because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of the first drug. The state trial court, however, specifically found that pancuronium serves two purposes. First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. App. 763. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death. Ibid. Kentuckys decision to include the drug does not offend the Eighth Amendment. 5

Petitioners barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. See Brief for Dr. Kevin Concannon etal. as Amici Curiae 18, n.5. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, see Workman, supra, at 909 (describing the comparison to animal euthanasia as more of a debaters point), it overlooks the States legitimate interest in providing for a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopental in order to prevent a prolonged, undignified death. See Kimsma, Euthanasia and Euthanizing Drugs in The Netherlands, reprinted in Drug Use in Assisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A. Lipman eds. 1996). That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarianssuch as stunning the animal or severing its spinal cord, see 6 Tr. 758759 (Apr. 20, 2005)make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans.

Petitioners also fault the Kentucky protocol for lacking a systematic mechanism for monitoring the anesthetic depth of the prisoner. Under petitioners scheme, qualified personnel would employ monitoring equipment, such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify that a prisoner has achieved sufficient unconsciousness before injecting the final two drugs. The visual inspection performed by the warden and deputy warden, they maintain, is an inadequate substitute for the more sophisticated procedures they envision. Brief for Petitioners 19, 58.

At the outset, it is important to reemphasize that a proper dose of thiopental obviates the concern that a prisoner will not be sufficiently sedated. All the experts who testified at trial agreed on this point. The risks of failing to adopt additional monitoring procedures are thus even more remote and attenuated than the risks posed by the alleged inadequacies of Kentuckys procedures designed to ensure the delivery of thiopental. See Hamilton v. Jones, 472 F.3d 814, 817 (CA10 2007) (per curiam); Taylor v. Crawford, 487 F.3d 1072, 1084 (CA8 2007).

But more than this, Kentuckys expert testified that a blood pressure cuff would have no utility in assessing the level of the prisoners unconsciousness following the introduction of sodium thiopental, which depresses circulation. App. 578. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 (Apr. 2006); see Brown v. Beck, 445 F.3d 752, 754755 (CA4 2006) (Michael, J., dissenting). The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law, see Ky. Rev. Stat. Ann. 431.220(3), and the American Society of Anesthesiologists own ethical guidelines, see Brief for American Society of Anesthesiologists as Amicus Curiae 23, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is the standard of care in surgery requiring anesthesia, as the dissent points out. Post, at 6. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering.

The dissent believes that rough-and-ready tests for checking consciousnesscalling the inmates name, brushing his eyelashes, or presenting him with strong, noxious odorscould materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. See ibid. Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentuckys procedure, but not sufficient to prevent pain. See post, at 910. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmates bloodstream, see post, at 6, the record confirms that the visual inspection of the IV site under Kentuckys procedure achieves that objective. See supra, at 17. 6

The dissent would continue the stay of these executions (and presumably the many others held in abeyance pending decision in this case) and send the case back to the lower courts to determine whether such added measures redress an untoward risk of pain. Post, at 11. But an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the States legitimate interest in carrying out a sentence of death in a timely manner. See Baze v. Parker, 371 F.3d 310, 317 (CA6 2004) (petitioner Baze sentenced to death in 1994); Bowling v. Parker, 138 F.Supp. 2d 821, 840 (ED Ky. 2001) (petitioner Bowling sentenced to death in 1991).

Justice Stevens suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the States lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

***

Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, [o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. 329 U.S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. [T]he power of a State to pass laws means little if the State cannot enforce them. McCleskey v. Zant, 499 U.S. 467, 491 (1991) . State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to objectively intolerable risk, Farmer, 511 U.S., at 846, and n.9, not simply the possibility of pain.

Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggestedsuch as improper mixing of chemicals and improper setting of IVs by trained and experienced personnelcannot remotely be characterized as objectively intolerable. Kentuckys decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State.

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in todays consensus on lethal injection. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 657 (1992) (Stevens, J., dissenting); App. 755. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that todays decision will be any different. 7

The judgment below concluding that Kentuckys procedure is consistent with the Eighth Amendment is, accordingly, affirmed.

It is so ordered.


Notes

1Twenty-seven of the 36 States that currently provide for capital punishment require execution by lethal injection as the sole method. See Ariz. Rev. Stat. Ann. 13704 (West 2001); Ark. Code Ann. 54617 (2006); Colo. Rev. Stat. Ann. 181.31202 (2007); Conn. Gen. Stat. 54100 (2007); Del. Code Ann., Tit. 11, 4209 (2006 Supp.); Ga. Code Ann. 171038 (2004); Ill. Comp. Stat., ch. 725, 5/1195 (West 2006); Ind. Code 353861 (West 2004); Kan. Stat. Ann. 224001 (2006 Cum. Supp.); Ky. Rev. Stat. Ann. 431.220 (West 2006); La. Stat. Ann. 15:569 (West 2005); Md. Crim. Law Code Ann. 2303 (Lexis Supp. 2007); Miss. Code Ann. 991951 (2007); Mont. Code Ann. 4619103 (2007); Nev. Rev. Stat. 176.355 (2007); N.J. Stat. Ann. 2C:492 (West 2007) (repealed Dec. 17, 2007); N.M. Stat. Ann. 311411 (2000); N.C. Gen. Stat. Ann. 15187 (Lexis 2007); N.Y. Correc. Law Ann. 658 (West 2003) (held unconstitutional in People v. LaValle, 3 N.Y. 3d 88, 130131, 817 N.E. 2d 341, 367 (2004)); Ohio Rev. Code Ann. 2949.22 (Lexis 2006); Okla. Stat., Tit. 22, 1014 (West 2001); Ore. Rev. Stat. 137.473 (2003); Pa. Stat. Ann., Tit. 61, 3004 (Purdon 1999); S.D. Codified Laws 23A27A32 (Supp. 2007); Tenn. Code Ann. 4023114 (2006); Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. 77185.5 (Lexis Supp. 2007); Wyo. Stat. Ann. 713904 (2007). Nine States allow for lethal injection in addition to an alternative method, such as electrocution, see Ala. Code 151882 to 82.1 (Supp. 2007); Fla. Stat. 922.105 (2006); S.C. Code Ann. 243530 (2007); Va. Code Ann. 53.1234 (Lexis Supp. 2007), hanging, see N.H. Rev. Stat. Ann. 630:5 (2007); Wash. Rev. Code 10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. 3604 (West 2000); Mo. Rev. Stat. 546.720 (2007 Cum. Supp.), or firing squad, see Idaho Code 192716 (Lexis 2004). Nebraska is the only State whose statutes specify electrocution as the sole method of execution, see Neb. Rev. Stat. 292532 (1995), but the Nebraska Supreme Court recently struck down that method under the Nebraska Constitution, see State v. Mata, No. S051268, 2008 WL 351695, *40 (2008). Although it is undisputed that the States using lethal injection adopted the protocol first developed by Oklahoma without significant independent review of the procedure, it is equally undisputed that, in moving to lethal injection, the States were motivated by a desire to find a more humane alternative to then-existing methods. See Fordham Brief 23. In this regard, Kentucky was no different. See id., at 2930 (quoting statement by the State Representative who sponsored the bill to replace electrocution with lethal injection in Kentucky: if we are going to do capital punishment, it needs to be done in the most humane manner (internal quotation marks omitted)).

2The difficulties inherent in such approaches are exemplified by the controversy surrounding the study of lethal injection published in the April 2005 edition of the British medical journal the Lancet. After examining thiopental concentrations in toxicology reports based on blood samples drawn from 49 executed inmates, the study concluded that most of the executed inmates had concentrations that would not be expected to produce a surgical plane of anaesthesia, and 21 (43%) had concentrations consistent with consciousness. Koniaris, Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 14121413. The study was widely cited around the country in motions to stay executions and briefs on the merits. See, e.g., Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L.Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study). But shortly after the Lancet study appeared, peer responses by seven medical researchers criticized the methodology supporting the original conclusions. See Groner, Inadequate Anaesthesia in Lethal Injection for Execution, 366 Lancet 10731074 (Sept. 2005). These researchers noted that because the blood samples were taken several hours to days after the inmates deaths, the postmortem concentrations of thiopentala fat-soluble compound that passively diffuses from blood into tissuecould not be relied on as accurate indicators for concentrations during life. Id., at 1073. The authors of the original study responded to defend their methodology. Id., at 10741076. See also post, at 24 (Breyer, J., concurring in judgment). We do not purport to take sides in this dispute. We cite it only to confirm that a best practices approach, calling for the weighing of relative risks without some measure of deference to a States choice of execution procedures, would involve the courts in debatable matters far exceeding their expertise.

3Justice Thomas agrees that courts have neither the authority nor the expertise to function as boards of inquiry determining best practices for executions, see post, at 9 (opinion concurring in judgment) (quoting this opinion); post, at 13, but contends that the standard we adopt inevitably poses such concerns. In our view, those concerns are effectively addressed by the threshold requirement reflected in our cases of a substantial risk of serious harm or an objectively intolerable risk of harm, see supra, at 11, and by the substantive requirements in the articulated standard.

4Petitioners did allude to an alternative chemical or combination of chemicals that could replace Kentuckys three-drug protocol in their post-trial brief, see App. 684, but based on the arguments presented there, it is clear they intended to refer only to other, allegedly less painful drugs that could substitute for potassium chloride as a heart-stopping agent, see id., at 701. Likewise, the only alternatives to the three-drug protocol presented to the Kentucky Supreme Court were those that replaced potassium chloride with other drugs for inducing cardiac arrest, or that omitted pancuronium bromide, or that added an analgesic to relieve pain. See Brief for Appellants in No. 2005SC00543, pp. 38, 39, 40.

5Justice Stevenss conclusion that the risk addressed by pancuronium bromide is vastly outweighed by the risk of pain at issue here, see post, at 3 (opinion concurring in judgment), depends, of course, on the magnitude of the risk of such pain. As explained, that risk is insignificant in light of the safeguards Kentucky has adopted.

6Resisting this point, the dissent rejects the expert testimony that problems with the intravenous administration of sodium thiopental would be obvious, see post, at 10, testimony based not only on the pain that would result from injecting the first drug into tissue rather than the vein, see App. 600601, but also on the swelling that would occur, see id., at 353. See also id., at 385386. Neither of these expert conclusions was disputed below.

7We do not agree with Justice Stevens that anything in our opinion undermines or remotely addresses the validity of capital punishment. See post, at 11. The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.


TOP

Dissent

RALPH BAZE and THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, etal.

on writ of certiorari to the supreme courtof kentucky


[April 16, 2008]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

It is undisputed that the second and third drugs used in Kentuckys three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Id., at 348, 427, 444, 600, 626. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be constitutionally unacceptable. Ante, at 14.

The constitutionality of Kentuckys protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentuckys system is constitutional, the plurality states, because petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. Ante, at 15. I would not dispose of the case so swiftly given the character of the risk at stake. Kentuckys protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentuckys omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

I

The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners challenge to Kentuckys lethal injection protocol.

In Wilkerson v. Utah, 99 U.S. 130 (1879) , the Court held that death by firing squad did not rank among the cruel and unusual punishments banned by the Eighth Amendment. In so ruling, the Court did not endeavor to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted. Id., at 135136. But it was safe to affirm, the Court stated, that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden. Id., at 136.

Next, in In re Kemmler, 136 U.S. 436 (1890) , death by electrocution was the assailed method of execution. 1 The Court reiterated that the Eighth Amendment prohibits torture and lingering death. Id., at 447. The word cruel, the Court further observed, implies something inhuman something more than the mere extinguishment of life. Ibid. Those statements, however, were made en passant. Kemmlers actual holding was that the Eighth Amendment does not apply to the States, id., at 448449, 2 a proposition we have since repudiated, see, e.g., Robinson v. California, 370 U.S. 660 (1962) .

Finally, in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) , the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. Id., at 463. But the very next sentence varied the formulation; it referred to the [p]rohibition against the wanton infliction of pain. Ibid.

No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Atkins v. Virginia, 536 U.S. 304, 311312 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time.

Further phrases and tests can be drawn from more recent decisions, for example, Gregg v. Georgia, 428 U.S. 153 (1976) . Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits the unnecessary and wanton infliction of pain, id., at 173 (joint opinion of Stewart, Powell, and Stevens, JJ.); the same opinion also cautioned that a death sentence cannot be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner, id., at 188.

Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. 217 S.W. 3d 207, 209, 210 (2006). Petitioners respond that courts should consider (a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible. Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a substantial risk of serious harm and considering whether a feasible, readily implemented alternative can significantly reduce that risk. Ante, at 13 (internal quotation marks omitted).

I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its substantial risk test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others.

Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmates consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. Ante, at 12. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures.

II

Kentuckys Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky. Rev. Stat. Ann. 431.220(1)(a) (West 2006). Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were given the task without the benefit of scientific aid or policy oversight. App. 768. Kentuckys protocol, that court observed, was copied from other states and accepted without challenge. Ibid. Kentucky did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned. Id., at 760. Instead, the trial court noted, Kentucky followed the path taken in other States that simply fell in line behind the three-drug protocol first developed by Oklahoma in 1977. Id., at 756. See also ante, at 4, n.1 (plurality opinion).

Kentuckys protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one years experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 16 (plurality opinion). Kentuckys IV team currently has two members: a phlebotomist with 8 years experience and an EMT with 20 years experience. App. 273274. Both members practice siting catheters at ten lethal injection training sessions held annually. Id., at 984.

Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. Id., at 977. From that point forward, only the warden and deputy warden remain with the inmate. Id., at 276. Neither the warden nor the deputy warden has any medical training.

The warden relies on visual observation to determine whether the inmate appears unconscious. Id., at 978. In Kentuckys only previous execution by lethal injection, the wardens position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmates face. See id., at 213214. No other check for consciousness occurs before injection of pancuronium bromide. Kentuckys protocol does not include an automatic pause in the rapid flow of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmates name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response.

Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), id., at 976. A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see id., at 579580; ante, at 2021 (plurality opinion), but would signal that the drug has entered the inmates bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentuckys own expert testified that the sodium thiopental should cause the inmates blood pressure to become very, very low, App. 578, and that a precipitous drop in blood pressure would confir[m] that the drug was having its expected effect, id., at 580. Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia. Id., at 539. 3

A consciousness check supplementing the wardens visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmates consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication. 4

Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentuckys protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 1923. 5 Florida pauses between injection of the first and second drugs so the warden can determine, after consultation, that the inmate is indeed unconscious. Lightbourne v. McCollum, 969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quotation marks omitted). The warden does so by touching the inmates eyelashes, calling his name, and shaking him. Id., at 347. 6 If the inmates consciousness remains in doubt in Florida, the medical team members will come out from the chemical room and consult in the assessment of the inmate. Ibid. During the entire execution, the person who inserted the IV line monitors the IV access point and the inmates face on closed circuit television. Ibid.

In Missouri, medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again. Taylor v. Crawford, 487 F.3d 1072, 1083 (CA8 2007). The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental. Ibid.

In California, a member of the IV team brushesthe inmates eyelashes, speaks to him, and shakes himat the halfway point and, again, at the completion ofthe sodium thiopental injection. See State of Califor-nia, San Quentin Operational Procedure No. 0770, Execution by Lethal Injection, V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/News/docs/RevisedProtocol.pdf.

In Alabama, a member of the execution team begin[s] by saying the condemned inmates name. If there is no response, the team member will gently stroke the condemned inmates eyelashes. If there is no response, the team member will then pinch the condemned inmates arm. Respondents Opposition to Callahans Application for a Stay of Execution in Callahan v. Allen, O.T. 2007, No. 07A630, p.3 (internal quotation marks omitted).

In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmates name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06cv1859 (SD Ind.), pp. 199200, online at http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake Hearing). 7

These checks provide a degree of assurancemissing from Kentuckys protocolthat the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures.

The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmates tissue, not a vein, he would be awake and screaming. Tr. of Oral Arg. 3031. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 2627. That argument ignores aspects of Kentuckys protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain.

First, Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g., Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz).

Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmates veins to burst after a small amount of sodium thiopental has been administered. Cf. App. 217 (describing risk of blowout). Kentuckys protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug by feel through five feet of tubing. Id., at 284, 286287. 8 In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see id., at 285; thus the executioners training may lead him to push the drugs too fast.

The easiest and most obvious way to ensure that an inmate is unconscious during an execution, petitioners argued to the Kentucky Supreme Court, is to check for consciousness prior to injecting pancuronium [bromide]. Brief for Appellants in No. 2005SC00543, p. 41. See also App. 30 (Complaint) (alleging Kentuckys protocol does not require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals). The court did not address petitioners argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentuckys protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain.


Notes

1Hanging was the States prior mode of execution. Electrocution, considered less barbarous, indeed the most humane way to administer the death penalty, was believed at the time to result in instantaneous, and consequently in painless, death. In re Kemmler, 136 U.S. 436, 443444 (1890) (internal quotation marks omitted).

2The Court also ruled in Kemmler that the States election to carry out the death penalty by electrocution in lieu of hanging encountered no Fourteenth Amendment shoal: No privilege or immunity of United States citizenship was entailed, nor did the Court discern any deprivation of due process. Id., at 448449.

3The plurality deems medical standards irrelevant in part because drawn from a different context. Ante, at 21. Medical professionals monitor blood pressure and heart rate, however, not just to save lives, but also to reduce the risk of consciousness during otherwise painful procedures. Considering that the constitutionality of Kentuckys protocol depends on guarding against the same risk, see supra, at 1; ante, at 1415 (plurality opinion), the pluralitys reluctance to consider medical practice is puzzling. No one is advocating the wholesale incorporation of medical standards into the Eighth Amendment. But Kentucky could easily monitor the inmates blood pressure and heart rate without physician involvement. That medical professionals consider such monitoring important enough to make it the standard of care in medical practice, I remain persuaded, is highly instructive.

4Petitioners expert testified that a layperson could not tell from visual observation if a paralyzed inmate was conscious and that doing so would be difficult even for a professional. App. 418. Kentuckys warden candidly admitted: I honestly dont know what youd look for. Id., at 283.

5Because most death-penalty States keep their protocols secret, a comprehensive survey of other States practices is not available. See Brief for American Civil Liberties Union etal. as Amici Curiae 612.

6Floridas expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (per curiam), who also served as Kentuckys expert in this case, testified that the eyelash test is probably the most commonfirst assessment that we use in the operating room to determine . . . when a patient might have crossed the line from being consciousto unconscious. 4 Tr. in Florida v. Lightbourne, No. 81170CF(Fla. Cir. Ct., Marion Cty.), p. 511, online at http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as visited Apr. 14, 2008, and in Clerk of Courts case file). A conscious person, if you touch their eyelashes very lightly, will blink; an unconscious person typically will not. Ibid. The shaking and name-calling tests, he further testified, are similar to those taught in basic life support courses. See id., at 512.

7In Indiana, a physician also examines the inmate after injection of the first drug. Timberlake Hearing 199.

8The length of the tubing contributes to the risk that the inmate will receive an inadequate dose of sodium thiopental. The warden and deputy warden watch for obvious leaks in the execution chamber, see ante, at 6 (plurality opinion), but the line also snakes into the neighboring control room through a small hole in the wall, App. 280.