Eighth Amendment to grant relief in egregious cases involving rape. . . They are like appellate judges and justices, reviewing only a paper record of each side’s case for life or death. The Constitution does not prohibit the use of prosecutorial discretion. 295 (2014) (11% of those executed have dropped appeals and volunteered); ACLU Report 3 (account of “ ‘guys who dropped their appeals because of the intolerable conditions’ ”). The court’s 5-4 ruling It made modifications to the lethal injection procedure. As observed above, these experts cited multiple sources supporting the existence of midazolam’s ceiling effect. I join the opinion of the Court, and write to respond to Justice Breyer’s plea for judicial abolition of the death penalty.
They suggest that there are too many instances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime. Eighth Amendment. Eighth Amendment cannot possibly countenance such a result. Eleven States, as noted earlier, have not executed anyone in eight years. innocence was not at issue before the Supreme Court. prosecution rebutted Glossip’s version of events. Consider, for example, what actually happened to the 183 inmates sentenced to death in 1978. 543 U. S. 551, . They were afforded counsel and tried before a jury of their peers—tried twice, once to determine whether they were guilty and once to determine whether death was the appropriate sentence. However, midazolam did not have this affect, during when Oklahoma executed the prisoner Clayton Lockett. 408 U. S. 238 (1972) The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stewart, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. 232 (emphasis added). . that lead the nation in executions”); American Bar Assn. The Court subsequently granted certiorari and, at the request of the State, stayed petitioners’ pending executions. Ruth Bader Ginsburg in calling for a complete re-examination of the It, like the District Court, held that petitioners were unlikely to prevail on the merits because they had failed to prove the existence of “ ‘known and available alternatives.’ ” Id., at 732. Finally, since this Court held that comparative proportionality review is not constitutionally required, Pulley v. Harris, 433 U. S. 584 (1977) Oakford, UN Vote Against Death Penalty Highlights Global Abolitionist Trend–and Leaves the US Stranded, Vice News, Dec. 19, 2014, online at https : / / news . [2] Regardless, I need not delve too deeply into Dr. Evans’ alternative scientific reality. Thus, Dr. Evans appeared to believe—and again, I say “appeared” because his rationale is not clear—that because midazolam caused some deaths, it would necessarily cause complete unconsciousness and then death at especially high doses. Most relevant here, the District Court found that “[t]he proper administration of 500 milligrams of midazolam . See S. Banner, The Death Penalty 203 (2002); Johnson, Double Murderer Executed by Firing Squad in Utah, N. Y. App. DPIC, Executions by State and Year, online at http://www.deathpenaltyinfo.org/node/5741. Last year, in 2014, only seven States carried out an execution. Even Death Penalty Supporters Can Push for Change, Guardian, May 12, 2014 (Earley presided over 36 executions as Virginia Attorney General from 1998–2001); but see ante, at 2–3 (Scalia, J., concurring) (apparently finding no special constitutional problem arising from the fact that the execution of an innocent person is irreversible). In sum, then, Dr. Evans’ conclusions were entirely unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of midazolam’s properties, and apparently premised on basic logical errors. It concluded that Dr. Evans, the Dean of Auburn University’s School of Pharmacy, was well qualified to testify about midazolam’s properties and that he offered reliable testimony. Just as important, there is some reason to think that it is relatively quick and painless. But even if Dr. Lubarsky’s declaration is correct, it is largely beside the point. See, The Court protests that its holding does not extend so far, deriding this description of the logical implications of its legal rule as “simply not true” and “outlandish rhetoric.”, Opinion (Alito), Concurrence (Thomas), Concurrence (Scalia), Dissent (Sotomayor), Dissent (Breyer), Opinion Announcement - June 29, 2015 (Part 1), Opinion Announcement - June 29, 2015 (Part 2), Opinion Announcement - June 29, 2015 (Part 3), Opinion Announcement - June 29, 2015 (Part 4). Next, one can consider state-level data. Id., at 872, n. 44 (35% of those confined on death row in Florida attempted suicide). With this. See Hovinga et al., Pharmacokinetic-EEG Effect Relationship of Midazolam in Aging BN/BiRij Rats, 107 British J. Pharmacology 171, 173, Fig. Rich. Every murder is tragic, but unless we return to the mandatory death penalty struck down in Woodson, 428 U. S., at 304–305, the constitutionality of capital punishment rests on its limited application to the worst of the worst, supra, at 9–10. (plurality opinion)—a task for which we are eminently ill suited. 40 to 50 milligrams.’ ” Ante, at 23 (quoting App. Atkins, 536 U. S., at 313–316; Roper, supra, at 564–566. (joint opinion of Stewart, Powell, and Stevens, JJ. And though, as the Court observes, Dr. Sasich believed midazolam could be “used for medical procedures like colonoscopies and gastroscopies,” ante, at 21, he insisted that these procedures were not necessarily painful, and that it would be a “big jump” to conclude that midazolam would be effective to maintain unconsciousness throughout an execution. The Court of Appeals added, however, that this holding was “not outcome-determinative in this case” because petitioners additionally failed to establish that the use of midazolam creates a demonstrated risk of severe pain. This conclusion was not clearly erroneous. (2) The State’s expert presented persuasive testimony that a 500-milligram dose of midazolam would make it a virtual certainty that an inmate will not feel pain associated with the second and third drugs, and petitioners’ experts acknowledged that they had no contrary scientific proof. in Hall v. Florida, O. T. 2013, No. Many studies have examined the death penalty’s deterrent effect; some have found such an effect, whereas others have found a lack of evidence that it deters crime. See, e.g., Levinson, Smith, & Young, Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States, 89 N. Y. U. L. Rev. Clayton Lockett was charged with murder, rape, kidnapping, and assault in 2000. But, at a minimum, they suggest a serious problem of reliability. Federal courts, reviewing capital cases in habeas corpus proceedings, found error in 40% of those cases. Glossip was the plaintiff in Glossip v. Gross, a U.S. Supreme Court case decided in June 2015 in which a divided Court ruled 5-4 that midazolam may be used as a sedative in combination with other lethal injection drugs. After he left office, the would make it a virtual certainty that an individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” Id., at 77.
In their brief, petitioners attempt to deflect attention from their failure of proof regarding midazolam’s ceiling effect by criticizing Dr. Evans’ testimony. Should we eliminate the trial-related protections we have established for capital defendants: that they be able to present to the sentencing judge or jury all mitigating circumstances, Lockett v. Ohio, Second, while conceding that the 500-milligram dose of midazolam is much higher than the normal therapeutic dose, they contend that this fact is irrelevant because midazolam has a “ceiling effect”—that is, at a certain point, an increase in the dose administered will not have any greater effect on the inmate. True, as the Court notes, ante, at 14–15, Hill did so in the context of addressing §1983’s pleading standard, rejecting the proposed alternative-means requirement because the Court saw no basis for the “[i]mposition of heightened pleading requirements.” 547 U. S., at 582.
Some studies indicate that the disparity reflects the decisionmaking authority, the legal discretion, and ultimately the power of the local prosecutor. Dr. Evans cited no scholarly research in support of his opinions. DPIC, Executions by State and Year, supra; DPIC, Death Sentences in the United States From 1977 by State and by Year, online at http : / / www . But that only confirms that the Court in Hill did not view the availability of an alternative means of execution as an element of an In 1977—just after the Supreme Court made clear that, by modifying their legislation, States could reinstate the death penalty—137 people were sentenced to death. The Court achieves this result in two ways: first, by deferring to the District Court’s decision to credit the scientifically unsupported and implausible testimony of a single expert witness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions.
Eighth Amendment. The Court may be right that “petitioners do not identify any incorrect statements from drugs.com on which Dr. Evans relied.” Ante, at 27. By eliminating some of these protections, one likely could reduce delay. An autopsy determined, however, that the concentration of midazolam in Lockett’s blood was more than sufficient to render an average person unconscious. Second, petitioners argue that Dr. Evans’ expert report contained a mathematical error, but we find this argument insignificant. Of course, this delay is a problem of the Court’s own making. Petitioners contend that this statement was incorrect because “far from inhibiting GABA, midazolam facilitates its binding to GABA receptors.” Brief for Petitioners 38. 776 F. 3d, at 732.
Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” The controlling opinion in Baze outlined what a prisoner must establish to succeed on an Cohen & Smith, The Racial Geography of the Federal Death Penalty, 85 Wash. L. Rev. The Baze plurality opinion should not be understood to have so carelessly tossed aside Hill’s underlying premise less than two years later.