Glossip v. Gross

(Slip Opinion) OCTOBER TERM, 2014 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GLOSSIP ET AL. v. GROSS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 14–7955. Argued April 29, 2015—Decided June 29, 2015

Because capital punishment is constitutional, there must be a constitu-

tional means of carrying it out. After Oklahoma adopted lethal injec-

tion as its method of execution, it settled on a three-drug protocol of

(1) sodium thiopental (a barbiturate) to induce a state of uncon-

sciousness, (2) a paralytic agent to inhibit all muscular-skeletal

movements, and (3) potassium chloride to induce cardiac arrest. In

Baze v. Rees, 553 U. S. 35, the Court held that this protocol does not

violate the Eighth Amendment’s prohibition against cruel and unu-

sual punishments. Anti-death-penalty advocates then pressured

pharmaceutical companies to prevent sodium thiopental (and, later,

another barbiturate called pentobarbital) from being used in execu-

tions. Unable to obtain either sodium thiopental or pentobarbital,

Oklahoma decided to use a 500-milligram dose of midazolam, a seda-

tive, as the first drug in its three-drug protocol.

Oklahoma death-row inmates filed a 42 U. S. C. §1983 action

claiming that the use of midazolam violates the Eighth Amendment.

Four of those inmates filed a motion for a preliminary injunction and

argued that a 500-milligram dose of midazolam will not render them

unable to feel pain associated with administration of the second and

third drugs. After a three-day evidentiary hearing, the District Court

denied the motion. It held that the prisoners failed to identify a

known and available alternative method of execution that presented

a substantially less severe risk of pain. It also held that the prison-

ers failed to establish a likelihood of showing that the use of midazo-

lam created a demonstrated risk of severe pain. The Tenth Circuit

affirmed.

Held: Petitioners have failed to establish a likelihood of success on the

merits of their claim that the use of midazolam violates the Eighth

2 GLOSSIP v. GROSS

Syllabus

Amendment. Pp. 11–29.

(a) To obtain a preliminary injunction, petitioners must establish,

among other things, a likelihood of success on the merits of their

claim. See Winter v. Natural Resources Defense Council, Inc., 555

U. S. 7, 20. To succeed on an Eighth Amendment method-of-

execution claim, a prisoner must establish that the method creates a

demonstrated risk of severe pain and that the risk is substantial

when compared to the known and available alternatives. Baze, su-

pra, at 61 (plurality opinion). Pp. 11–13.

(b) Petitioners failed to establish that any risk of harm was sub-

stantial when compared to a known and available alternative method

of execution. Petitioners have suggested that Oklahoma could exe-

cute them using sodium thiopental or pentobarbital, but the District

Court did not commit a clear error when it found that those drugs are

unavailable to the State. Petitioners argue that the Eighth Amend-

ment does not require them to identify such an alternative, but their

argument is inconsistent with the controlling opinion in Baze, which

imposed a requirement that the Court now follows. Petitioners also

argue that the requirement to identify an alternative is inconsistent

with the Court’s pre-Baze decision in Hill v. McDonough, 547 U. S.

573, but they misread that decision. Hill concerned a question of civ-

il procedure, not a substantive Eighth Amendment question. That

case held that §1983 alone does not require an inmate asserting a

method-of-execution claim to plead an acceptable alternative. Baze,

on the other hand, made clear that the Eighth Amendment requires a

prisoner to plead and prove a known and available alternative.

Pp. 13–16.

(c) The District Court did not commit clear error when it found that

midazolam is likely to render a person unable to feel pain associated

with administration of the paralytic agent and potassium chloride.

Pp. 16–29.

(1) Several initial considerations bear emphasis. First, the Dis-

trict Court’s factual findings are reviewed under the deferential

“clear error” standard. Second, petitioners have the burden of per-

suasion on the question whether midazolam is effective. Third, the

fact that numerous courts have concluded that midazolam is likely to

render an inmate insensate to pain during execution heightens the

deference owed to the District Court’s findings. Finally, challenges to

lethal injection protocols test the boundaries of the authority and

competency of federal courts, which should not embroil themselves in

ongoing scientific controversies beyond their expertise. Baze, supra,

at 51. Pp. 16–18.

(2) The State’s expert presented persuasive testimony that a 500-

milligram dose of midazolam would make it a virtual certainty that

Cite as: 576 U. S. ____ (2015) 3

Syllabus

an inmate will not feel pain associated with the second and third

drugs, and petitioners’ experts acknowledged that they had no con-

trary scientific proof. Expert testimony presented by both sides lends

support to the District Court’s conclusion. Evidence suggested that a

500-milligram dose of midazolam will induce a coma, and even one of

petitioners’ experts agreed that as the dose of midazolam increases, it

is expected to produce a lack of response to pain. It is not dispositive

that midazolam is not recommended or approved for use as the sole

anesthetic during painful surgery. First, the 500-milligram dose at

issue here is many times higher than a normal therapeutic dose.

Second, the fact that a low dose of midazolam is not the best drug for

maintaining unconsciousness says little about whether a 500-

milligram dose is constitutionally adequate to conduct an execution.

Finally, the District Court did not err in concluding that the safe-

guards adopted by Oklahoma to ensure proper administration of

midazolam serve to minimize any risk that the drug will not operate

as intended. Pp. 18–22.

(3) Petitioners’ speculative evidence regarding midazolam’s “ceil-

ing effect” does not establish that the District Court’s findings were

clearly erroneous. The mere fact that midazolam has a ceiling above

which an increase in dosage produces no effect cannot be dispositive,

and petitioners provided little probative evidence on the relevant

question, i.e., whether midazolam’s ceiling effect occurs below the

level of a 500-milligram dose and at a point at which the drug does

not have the effect of rendering a person insensate to pain caused by

the second and third drugs. Petitioners attempt to deflect attention

from their failure of proof on this point by criticizing the testimony of

the State’s expert. They emphasize an apparent conflict between the

State’s expert and their own expert regarding the biological process

that produces midazolam’s ceiling effect. But even if petitioners’ ex-

pert is correct regarding that biological process, it is largely beside

the point. What matters for present purposes is the dosage at which

the ceiling effect kicks in, not the biological process that produces the

effect. Pp. 22–25.

(4) Petitioners’ remaining arguments—that an expert report pre-

sented in the District Court should have been rejected because it ref-

erenced unreliable sources and contained an alleged mathematical

error, that only four States have used midazolam in an execution,

and that difficulties during two recent executions suggest that mid-

azolam is ineffective—all lack merit. Pp. 26–29.

776 F. 3d 721, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a con-

4 GLOSSIP v. GROSS

Syllabus

curring opinion, in which THOMAS, J., joined. THOMAS, J., filed a con-

curring opinion, in which SCALIA, J., joined. BREYER, J., filed a dissent-

ing opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dis-

senting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

Cite as: 576 U. S. ____ (2015) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–7955

_________________

RICHARD E. GLOSSIP, ET AL., PETITIONERS v.

KEVIN J. GROSS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 29, 2015]

JUSTICE ALITO delivered the opinion of the Court.

Prisoners sentenced to death in the State of Oklahoma

filed an action in federal court under Rev. Stat. §1979, 42

U. S. C. §1983, contending that the method of execution

now used by the State violates the Eighth Amendment

because it creates an unacceptable risk of severe pain.

They argue that midazolam, the first drug employed in the

State’s current three-drug protocol, fails to render a per-

son insensate to pain. After holding an evidentiary hear-

ing, the District Court denied four prisoners’ application

for a preliminary injunction, finding that they had failed

to prove that midazolam is ineffective. The Court of Ap-

peals for the Tenth Circuit affirmed and accepted the

District Court’s finding of fact regarding midazolam’s

efficacy.

For two independent reasons, we also affirm. First, the

prisoners failed to identify a known and available alterna-

tive method of execution that entails a lesser risk of pain,

a requirement of all Eighth Amendment method-of-

execution claims. See Baze v. Rees, 553 U. S. 35, 61 (2008)

(plurality opinion). Second, the District Court did not

2 GLOSSIP v. GROSS

Opinion of the Court

commit clear error when it found that the prisoners failed

to establish that Oklahoma’s use of a massive dose of

midazolam in its execution protocol entails a substantial

risk of severe pain.

I

A

The death penalty was an accepted punishment at the

time of the adoption of the Constitution and the Bill of

Rights. In that era, death sentences were usually carried

out by hanging. The Death Penalty in America: Current

Controversies 4 (H. Bedau ed. 1997). Hanging remained

the standard method of execution through much of the

19th century, but that began to change in the century’s

later years. See Baze, supra, at 41–42. In the 1880’s, the

Legislature of the State of New York appointed a commis-

sion to find “ ‘the most humane and practical method

known to modern science of carrying into effect the sen-

tence of death in capital cases.’ ” In re Kemmler, 136 U. S.

436, 444 (1890). The commission recommended electrocu-

tion, and in 1888, the Legislature enacted a law providing

for this method of execution. Id., at 444–445. In subse-

quent years, other States followed New York’s lead in the

“ ‘belief that electrocution is less painful and more humane

than hanging.’ ” Baze, 553 U. S., at 42 (quoting Malloy v.

South Carolina, 237 U. S. 180, 185 (1915)).

In 1921, the Nevada Legislature adopted another new

method of execution, lethal gas, after concluding that this

was “the most humane manner known to modern science.”

State v. Jon, 46 Nev. 418, 437, 211 P. 676, 682 (1923). The

Nevada Supreme Court rejected the argument that the

use of lethal gas was unconstitutional, id., at 435–437, 211

P., at 681–682, and other States followed Nevada’s lead,

see, e.g., Ariz. Const., Art. XXII, §22 (1933); 1937 Cal.

Stats. ch. 172, §1; 1933 Colo. Sess. Laws ch. 61, §1; 1955

Md. Laws ch. 625, §1, p. 1017; 1937 Mo. Laws p. 222, §1.

Cite as: 576 U. S. ____ (2015) 3

Opinion of the Court

Nevertheless, hanging and the firing squad were retained

in some States, see, e.g., 1961 Del. Laws ch. 309, §2 (hang-

ing); 1935 Kan. Sess. Laws ch. 155, §1 (hanging); Utah

Code Crim. Proc. §105–37–16 (1933) (hanging or firing

squad), and electrocution remained the predominant

method of execution until the 9-year hiatus in executions

that ended with our judgment in Gregg v. Georgia, 428

U. S. 153 (1976). See Baze, supra, at 42.

After Gregg reaffirmed that the death penalty does not

violate the Constitution, some States once again sought a

more humane way to carry out death sentences. They

eventually adopted lethal injection, which today is “by far

the most prevalent method of execution in the United

States.” Baze, supra, at 42. Oklahoma adopted lethal

injection in 1977, see 1977 Okla. Sess. Laws p. 89, and it

eventually settled on a protocol that called for the use of

three drugs: (1) sodium thiopental, “a fast-acting barbitu-

rate sedative that induces a deep, comalike unconscious-

ness when given in the amounts used for lethal injection,”

(2) a paralytic agent, which “inhibits all muscular-skeletal

movements and, by paralyzing the diaphragm, stops respi-

ration,” and (3) potassium chloride, which “interferes with

the electrical signals that stimulate the contractions of the

heart, inducing cardiac arrest.” Baze, supra, at 44; see

also Brief for Respondents 9. By 2008, at least 30 of the

36 States that used lethal injection employed that particu-

lar three-drug protocol. 553 U. S., at 44.

While methods of execution have changed over the

years, “[t]his Court has never invalidated a State’s chosen

procedure for carrying out a sentence of death as the

infliction of cruel and unusual punishment.” Id., at 48. In

Wilkerson v. Utah, 99 U. S. 130, 134–135 (1879), the Court

upheld a sentence of death by firing squad. In In re

Kemmler, supra, at 447–449, the Court rejected a chal-

lenge to the use of the electric chair. And the Court did

not retreat from that holding even when presented with a

4 GLOSSIP v. GROSS

Opinion of the Court

case in which a State’s initial attempt to execute a pris-

oner by electrocution was unsuccessful. Louisiana ex rel.

Francis v. Resweber, 329 U. S. 459, 463–464 (1947) (plu-

rality opinion). Most recently, in Baze, supra, seven Jus-

tices agreed that the three-drug protocol just discussed

does not violate the Eighth Amendment.

Our decisions in this area have been animated in part

by the recognition that because it is settled that capital

punishment is constitutional, “[i]t necessarily follows that

there must be a [constitutional] means of carrying it out.”

Id., at 47. And because some risk of pain is inherent in

any method of execution, we have held that the Constitu-

tion does not require the avoidance of all risk of pain.

Ibid. After all, while most humans wish to die a painless

death, many do not have that good fortune. Holding that

the Eighth Amendment demands the elimination of essen-

tially all risk of pain would effectively outlaw the death

penalty altogether.

B

Baze cleared any legal obstacle to use of the most com-

mon three-drug protocol that had enabled States to carry

out the death penalty in a quick and painless fashion. But

a practical obstacle soon emerged, as anti-death-penalty

advocates pressured pharmaceutical companies to refuse

to supply the drugs used to carry out death sentences.

The sole American manufacturer of sodium thiopental, the

first drug used in the standard three-drug protocol, was

persuaded to cease production of the drug. After suspend-

ing domestic production in 2009, the company planned to

resume production in Italy. Koppel, Execution Drug Halt

Raises Ire of Doctors, Wall Street Journal, Jan. 25, 2011,

p. A6. Activists then pressured both the company and the

Italian Government to stop the sale of sodium thiopental

for use in lethal injections in this country. Bonner, Letter

from Europe: Drug Company in Cross Hairs of Death

Cite as: 576 U. S. ____ (2015) 5

Opinion of the Court

Penalty Opponents, N. Y. Times, Mar. 30, 2011; Koppel,

Drug Halt Hinders Executions in the U. S., Wall Street

Journal, Jan. 22, 2011, p. A1. That effort proved success-

ful, and in January 2011, the company announced that it

would exit the sodium thiopental market entirely. See

Hospira, Press Release, Hospira Statement Regarding

PentothalTM (sodium thiopental) Market Exit (Jan. 21,

2011).

After other efforts to procure sodium thiopental proved

unsuccessful, States sought an alternative, and they even-

tually replaced sodium thiopental with pentobarbital,

another barbiturate. In December 2010, Oklahoma be-

came the first State to execute an inmate using pentobar-

bital. See Reuters, Chicago Tribune, New Drug Mix Used

in Oklahoma Execution, Dec. 17 2010, p. 41. That execu-

tion occurred without incident, and States gradually shifted

to pentobarbital as their supplies of sodium thiopental

ran out. It is reported that pentobarbital was used in all

of the 43 executions carried out in 2012. The Death

Penalty Institute, Execution List 2012, online at www.

deathpenaltyinfo.org/execution-list-2012 (all Internet

materials as visited June 26, 2015, and available in Clerk

of Court’s case file). Petitioners concede that pentobarbi-

tal, like sodium thiopental, can “reliably induce and main-

tain a comalike state that renders a person insensate to

pain” caused by administration of the second and third

drugs in the protocol. Brief for Petitioners 2. And courts

across the country have held that the use of pentobarbital

in executions does not violate the Eighth Amendment.

See, e.g., Jackson v. Danberg, 656 F. 3d 157 (CA3 2011);

Beaty v. Brewer, 649 F. 3d 1071 (CA9 2011); DeYoung v.

Owens, 646 F. 3d 1319 (CA11 2011); Pavatt v. Jones, 627

F. 3d 1336 (CA10 2010).

Before long, however, pentobarbital also became una-

vailable. Anti-death-penalty advocates lobbied the Danish

manufacturer of the drug to stop selling it for use in exe-

6 GLOSSIP v. GROSS

Opinion of the Court

cutions. See Bonner, supra. That manufacturer opposed

the death penalty and took steps to block the shipment of

pentobarbital for use in executions in the United States.

Stein, New Obstacle to Death Penalty in U. S., Washing-

ton Post, July 3, 2011, p. A4. Oklahoma eventually be-

came unable to acquire the drug through any means. The

District Court below found that both sodium thiopental

and pentobarbital are now unavailable to Oklahoma. App.

67–68.

C

Unable to acquire either sodium thiopental or pentobar-

bital, some States have turned to midazolam, a sedative in

the benzodiazepine family of drugs. In October 2013,

Florida became the first State to substitute midazolam for

pentobarbital as part of a three-drug lethal injection pro-

tocol. Fernandez, Executions Stall As States Seek Differ-

ent Drugs, N. Y. Times, Nov. 9, 2013, p. A1. To date,

Florida has conducted 11 executions using that protocol,

which calls for midazolam followed by a paralytic agent

and potassium chloride. See Brief for State of Florida as

Amicus Curiae 2–3; Chavez v. Florida SP Warden, 742

F. 3d 1267, 1269 (CA11 2014). In 2014, Oklahoma also

substituted midazolam for pentobarbital as part of its

three-drug protocol. Oklahoma has already used this

three-drug protocol twice: to execute Clayton Lockett in

April 2014 and Charles Warner in January 2015. (Warner

was one of the four inmates who moved for a preliminary

injunction in this case.)

The Lockett execution caused Oklahoma to implement

new safety precautions as part of its lethal injection proto-

col. When Oklahoma executed Lockett, its protocol called

for the administration of 100 milligrams of midazolam, as

compared to the 500 milligrams that are currently re-

quired. On the morning of his execution, Lockett cut

himself twice at “ ‘the bend of the elbow.’ ” App. 50. That

Cite as: 576 U. S. ____ (2015) 7

Opinion of the Court

evening, the execution team spent nearly an hour making

at least one dozen attempts to establish intravenous (IV)

access to Lockett’s cardiovascular system, including at his

arms and elsewhere on his body. The team eventually

believed that it had established intravenous access

through Lockett’s right femoral vein, and it covered the

injection access point with a sheet, in part to preserve

Lockett’s dignity during the execution. After the team

administered the midazolam and a physician determined

that Lockett was unconscious, the team next administered

the paralytic agent (vecuronium bromide) and most of the

potassium chloride. Lockett began to move and speak, at

which point the physician lifted the sheet and determined

that the IV had “infiltrated,” which means that “the IV

fluid, rather than entering Lockett’s blood stream, had

leaked into the tissue surrounding the IV access point.”

Warner v. Gross, 776 F. 3d 721, 725 (CA10 2015) (case

below). The execution team stopped administering the

remaining potassium chloride and terminated the execu-

tion about 33 minutes after the midazolam was first in-

jected. About 10 minutes later, Lockett was pronounced

dead.

An investigation into the Lockett execution concluded

that “the viability of the IV access point was the single

greatest factor that contributed to the difficulty in admin-

istering the execution drugs.” App. 398. The investiga-

tion, which took five months to complete, recommended

several changes to Oklahoma’s execution protocol, and

Oklahoma adopted a new protocol with an effective date of

September 30, 2014. That protocol allows the Oklahoma

Department of Corrections to choose among four different

drug combinations. The option that Oklahoma plans to

use to execute petitioners calls for the administration of

500 milligrams of midazolam followed by a paralytic agent

8 GLOSSIP v. GROSS

Opinion of the Court

and potassium chloride.1 The paralytic agent may be

pancuronium bromide, vecuronium bromide, or rocuronium

bromide, three drugs that, all agree, are functionally

equivalent for purposes of this case. The protocol also

includes procedural safeguards to help ensure that an

inmate remains insensate to any pain caused by the ad-

ministration of the paralytic agent and potassium chlo-

ride. Those safeguards include: (1) the insertion of both a

primary and backup IV catheter, (2) procedures to confirm

the viability of the IV site, (3) the option to postpone an

execution if viable IV sites cannot be established within an

hour, (4) a mandatory pause between administration of

the first and second drugs, (5) numerous procedures for

monitoring the offender’s consciousness, including the use

of an electrocardiograph and direct observation, and

(6) detailed provisions with respect to the training and

preparation of the execution team. In January of this

year, Oklahoma executed Warner using these revised

procedures and the combination of midazolam, a paralytic

agent, and potassium chloride.

II

A

In June 2014, after Oklahoma switched from pentobar-

bital to midazolam and executed Lockett, 21 Oklahoma

death row inmates filed an action under 42 U. S. C. §1983

challenging the State’s new lethal injection protocol. The

complaint alleged that Oklahoma’s use of midazolam

violates the Eighth Amendment’s prohibition of cruel and

unusual punishment.

In November 2014, four of those plaintiffs—Richard

——————

1 The

three other drug combinations that Oklahoma may admin-

ister are: (1) a single dose of pentobarbital, (2) a single dose of

sodium thiopental, and (3) a dose of midazolam followed by a dose of

hydromorphone.

Cite as: 576 U. S. ____ (2015) 9

Opinion of the Court

Glossip, Benjamin Cole, John Grant, and Warner—filed a

motion for a preliminary injunction. All four men had

been convicted of murder and sentenced to death by Okla-

homa juries. Glossip hired Justin Sneed to kill his em-

ployer, Barry Van Treese. Sneed entered a room where

Van Treese was sleeping and beat him to death with a

baseball bat. See Glossip v. State, 2007 OK CR 12, 157

P. 3d 143, 147–149. Cole murdered his 9-month-old

daughter after she would not stop crying. Cole bent her

body backwards until he snapped her spine in half. After

the child died, Cole played video games. See Cole v. State,

2007 OK CR 27, 164 P. 3d 1089, 1092–1093. Grant, while

serving terms of imprisonment totaling 130 years, killed

Gay Carter, a prison food service supervisor, by pulling

her into a mop closet and stabbing her numerous times

with a shank. See Grant v. State, 2002 OK CR 36, 58

P. 3d 783, 789. Warner anally raped and murdered an 11-

month-old girl. The child’s injuries included two skull

fractures, internal brain injuries, two fractures to her jaw,

a lacerated liver, and a bruised spleen and lungs. See

Warner v. State, 2006 OK CR 40, 144 P. 3d 838, 856–857.

The Oklahoma Court of Criminal Appeals affirmed the

murder conviction and death sentence of each offender.

Each of the men then unsuccessfully sought both state

postconviction and federal habeas corpus relief. Having

exhausted the avenues for challenging their convictions

and sentences, they moved for a preliminary injunction

against Oklahoma’s lethal injection protocol.

B

In December 2014, after discovery, the District Court

held a 3-day evidentiary hearing on the preliminary in-

junction motion. The District Court heard testimony from

17 witnesses and reviewed numerous exhibits. Dr. David

Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a

doctor of pharmacy, provided expert testimony about

10 GLOSSIP v. GROSS

Opinion of the Court

midazolam for petitioners, and Dr. Roswell Evans, a

doctor of pharmacy, provided expert testimony for

respondents.

After reviewing the evidence, the District Court issued

an oral ruling denying the motion for a preliminary in-

junction. The District Court first rejected petitioners’

challenge under Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U. S. 579 (1993), to the testimony of Dr. Evans.

It concluded that Dr. Evans, the Dean of Auburn Universi-

ty’s School of Pharmacy, was well qualified to testify about

midazolam’s properties and that he offered reliable testi-

mony. The District Court then held that petitioners failed

to establish a likelihood of success on the merits of their

claim that the use of midazolam violates the Eighth

Amendment. The court provided two independent reasons

for this conclusion. First, the court held that petitioners

failed to identify a known and available method of execu-

tion that presented a substantially less severe risk of pain

than the method that the State proposed to use. Second,

the court found that petitioners failed to prove that Okla-

homa’s protocol “presents a risk that is ‘sure or very likely

to cause serious illness and needless suffering,’ amounting

to ‘an objectively intolerable risk of harm.’ ” App. 96 (quot-

ing Baze, 553 U. S., at 50). The court emphasized that the

Oklahoma protocol featured numerous safeguards, includ-

ing the establishment of two IV access sites, confirmation

of the viability of those sites, and monitoring of the offend-

er’s level of consciousness throughout the procedure.

The District Court supported its decision with findings

of fact about midazolam. It found that a 500-milligram

dose of midazolam “would make it a virtual certainty that

any individual will be at a sufficient level of unconscious-

ness to resist the noxious stimuli which could occur from

the application of the second and third drugs.” App. 77.

Indeed, it found that a 500-milligram dose alone would

likely cause death by respiratory arrest within 30 minutes

Cite as: 576 U. S. ____ (2015) 11

Opinion of the Court

or an hour.

The Court of Appeals for the Tenth Circuit affirmed.

776 F. 3d 721. The Court of Appeals explained that our

decision in Baze requires a plaintiff challenging a lethal

injection protocol to demonstrate that the risk of severe

pain presented by an execution protocol is substantial

“ ‘when compared to the known and available alterna-

tives.’ ” Id., at 732 (quoting Baze, supra, at 61). And it

agreed with the District Court that petitioners had not

identified any such alternative. 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. 776 F. 3d, at 732. The

Court of Appeals found that the District Court did not

abuse its discretion by relying on Dr. Evans’ testimony,

and it concluded that the District Court’s factual findings

about midazolam were not clearly erroneous. It also held

that alleged errors in Dr. Evans’ testimony did not render

his testimony unreliable or the District Court’s findings

clearly erroneous.

Oklahoma executed Warner on January 15, 2015, but

we subsequently voted to grant review and then stayed

the executions of Glossip, Cole, and Grant pending the

resolution of this case. 574 U. S. ___ (2015).

III

“A plaintiff seeking a preliminary injunction must estab-

lish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of prelimi-

nary relief, that the balance of equities tips in his favor,

and that an injunction is in the public interest.” Winter v.

Natural Resources Defense Council, Inc., 555 U. S. 7, 20

(2008). The parties agree that this case turns on whether

petitioners are able to establish a likelihood of success on

the merits.

12 GLOSSIP v. GROSS

Opinion of the Court

The Eighth Amendment, made applicable to the States

through the Fourteenth Amendment, prohibits the inflic-

tion of “cruel and unusual punishments.” The controlling

opinion in Baze outlined what a prisoner must establish to

succeed on an Eighth Amendment method-of-execution

claim. Baze involved a challenge by Kentucky death row

inmates to that State’s three-drug lethal injection protocol

of sodium thiopental, pancuronium bromide, and potassium

chloride. The inmates conceded that the protocol, if

properly administered, would result in a humane and

constitutional execution because sodium thiopental would

render an inmate oblivious to any pain caused by the

second and third drugs. 553 U. S., at 49. But they argued

that there was an unacceptable risk that sodium thiopen-

tal would not be properly administered. Ibid. The in-

mates also maintained that a significant risk of harm

could be eliminated if Kentucky adopted a one-drug proto-

col and additional monitoring by trained personnel. Id., at

51.

The controlling opinion in Baze first concluded that

prisoners cannot successfully challenge a method of execu-

tion unless they establish that the method presents a risk

that is “ ‘sure or very likely to cause serious illness and

needless suffering,’ and give rise to ‘sufficiently imminent

dangers.’ ” Id., at 50 (quoting Helling v. McKinney, 509

U. S. 25, 33, 34–35 (1993)). 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 blame-

less for purposes of the Eighth Amendment.’ ” 553 U. S.,

at 50 (quoting Farmer v. Brennan, 511 U. S. 825, 846, and

n. 9 (1994)). The controlling opinion also stated that

prisoners “cannot successfully challenge a State’s method

of execution merely by showing a slightly or marginally

safer alternative.” 553 U. S., at 51. Instead, prisoners

must identify an alternative that is “feasible, readily

Cite as: 576 U. S. ____ (2015) 13

Opinion of the Court

implemented, and in fact significantly reduce[s] a substan-

tial risk of severe pain.” Id., at 52.

The controlling opinion summarized the requirements of

an Eighth Amendment method-of-execution claim as

follows: “A stay of execution may not be granted on

grounds such as those asserted here unless the condemned

prisoner establishes that the State’s lethal injection proto-

col creates a demonstrated risk of severe pain. [And] [h]e

must show that the risk is substantial when compared to

the known and available alternatives.” Id., at 61. The

preliminary injunction posture of the present case thus

requires petitioners to establish a likelihood that they can

establish both that Oklahoma’s lethal injection protocol

creates a demonstrated risk of severe pain and that the

risk is substantial when compared to the known and

available alternatives.

The challenge in Baze failed both because the Kentucky

inmates did not show that the risks they identified were

substantial and imminent, id., at 56, and because they did

not establish the existence of a known and available alter-

native method of execution that would entail a significantly

less severe risk, id., at 57–60. Petitioners’ arguments

here fail for similar reasons. First, petitioners have not

proved that any risk posed by midazolam is substantial

when compared to known and available alternative meth-

ods of execution. Second, they have failed to establish that

the District Court committed clear error when it found

that the use of midazolam will not result in severe pain

and suffering. We address each reason in turn.

IV

Our first ground for affirmance is based on petitioners’

failure to satisfy their burden of establishing that any risk

of harm was substantial when compared to a known and

available alternative method of execution. In their

amended complaint, petitioners proffered that the State

14 GLOSSIP v. GROSS

Opinion of the Court

could use sodium thiopental as part of a single-drug proto-

col. They have since suggested that it might also be con-

stitutional for Oklahoma to use pentobarbital. But the

District Court found that both sodium thiopental and

pentobarbital are now unavailable to Oklahoma’s De-

partment of Corrections. The Court of Appeals affirmed

that finding, and it is not clearly erroneous. On the con-

trary, the record shows that Oklahoma has been unable to

procure those drugs despite a good-faith effort to do so.

Petitioners do not seriously contest this factual finding,

and they have not identified any available drug or drugs

that could be used in place of those that Oklahoma is now

unable to obtain. Nor have they shown a risk of pain so

great that other acceptable, available methods must be

used. Instead, they argue that they need not identify a

known and available method of execution that presents

less risk. But this argument is inconsistent with the

controlling opinion in Baze, 553 U. S., at 61, which im-

posed a requirement that the Court now follows.2

Petitioners contend that the requirement to identify an

alternative method of execution contravenes our pre-Baze

decision in Hill v. McDonough, 547 U. S. 573 (2006), but

they misread that decision. The portion of the opinion in

Hill on which they rely concerned a question of civil pro-

cedure, not a substantive Eighth Amendment question. In

——————

2 JUSTICE SOTOMAYOR’s dissent (hereinafter principal dissent), post, at

24–25, inexplicably refuses to recognize that THE CHIEF JUSTICE’s

opinion in Baze sets out the holding of the case. In Baze, the opinion of

THE CHIEF JUSTICE was joined by two other JUSTICES. JUSTICES SCALIA

and THOMAS took the broader position that a method of execution is

consistent with the Eighth Amendment unless it is deliberately de-

signed to inflict pain. 553 U. S., at 94 (THOMAS, J. concurring in judg-

ment). Thus, as explained in Marks v. United States, 430 U. S. 188,

193 (1977), THE CHIEF JUSTICE’s opinion sets out the holding of the

case. It is for this reason that petitioners base their argument on the

rule set out in that opinion. See Brief for Petitioners 25, 28.

Cite as: 576 U. S. ____ (2015) 15

Opinion of the Court

Hill, the issue was whether a challenge to a method of

execution must be brought by means of an application for

a writ of habeas corpus or a civil action under §1983. Id.,

at 576. We held that a method-of-execution claim must be

brought under §1983 because such a claim does not attack

the validity of the prisoner’s conviction or death sentence.

Id., at 579–580. The United States as amicus curiae

argued that we should adopt a special pleading require-

ment to stop inmates from using §1983 actions to attack,

not just a particular means of execution, but the death

penalty itself. To achieve this end, the United States

proposed that an inmate asserting a method-of-execution

claim should be required to plead an acceptable alterna-

tive method of execution. Id., at 582. We rejected that

argument because “[s]pecific pleading requirements are

mandated by the Federal Rules of Civil Procedure, and

not, as a general rule, through case-by-case determina-

tions of the federal courts.” Ibid. Hill thus held that

§1983 alone does not impose a heightened pleading re-

quirement. Baze, on the other hand, addressed the sub-

stantive elements of an Eighth Amendment method-of-

execution claim, and it made clear that the Eighth

Amendment requires a prisoner to plead and prove a

known and available alternative. Because petitioners

failed to do this, the District Court properly held that they

did not establish a likelihood of success on their Eighth

Amendment claim.

Readers can judge for themselves how much distance

there is between the principal dissent’s argument against

requiring prisoners to identify an alternative and the

view, now announced by JUSTICES BREYER and GINSBURG,

that the death penalty is categorically unconstitutional.

Post, p. ___ (BREYER, J., dissenting). The principal dissent

goes out of its way to suggest that a State would violate

the Eighth Amendment if it used one of the methods of

execution employed before the advent of lethal injection.

16 GLOSSIP v. GROSS

Opinion of the Court

Post, at 30–31. And the principal dissent makes this

suggestion even though the Court held in Wilkerson that

this method (the firing squad) is constitutional and even

though, in the words of the principal dissent, “there is

some reason to think that it is relatively quick and pain-

less.” Post, at 30. Tellingly silent about the methods of

execution most commonly used before States switched to

lethal injection (the electric chair and gas chamber), the

principal dissent implies that it would be unconstitutional

to use a method that “could be seen as a devolution to a

more primitive era.” Ibid. If States cannot return to any

of the “more primitive” methods used in the past and if no

drug that meets with the principal dissent’s approval is

available for use in carrying out a death sentence, the

logical conclusion is clear. But we have time and again

reaffirmed that capital punishment is not per se unconsti-

tutional. See, e.g., Baze, 553 U. S., at 47; id., at 87–88

(SCALIA, J., concurring in judgment); Gregg, 428 U. S., at

187 (joint opinion of Stewart, Powell, and Stevens, JJ.);

id., at 226 (White, J., concurring in judgment); Resweber,

329 U. S., at 464; In re Kemmler, 136 U. S., at 447; Wilker-

son, 99 U. S., at 134–135. We decline to effectively over-

rule these decisions.

V

We also affirm for a second reason: The District Court

did not commit clear error when it found that midazolam

is highly likely to render a person unable to feel pain

during an execution. We emphasize four points at the

outset of our analysis.

First, we review the District Court’s factual findings

under the deferential “clear error” standard. This stand-

ard does not entitle us to overturn a finding “simply be-

cause [we are] convinced that [we] would have decided the

case differently.” Anderson v. Bessemer City, 470 U. S.

564, 573 (1985).

Cite as: 576 U. S. ____ (2015) 17

Opinion of the Court

Second, petitioners bear the burden of persuasion on

this issue. Baze, supra, at 41. Although petitioners

expend great effort attacking peripheral aspects of Dr.

Evans’ testimony, they make little attempt to prove what

is critical, i.e., that the evidence they presented to the

District Court establishes that the use of midazolam is

sure or very likely to result in needless suffering.

Third, numerous courts have concluded that the use of

midazolam as the first drug in a three-drug protocol is

likely to render an inmate insensate to pain that might

result from administration of the paralytic agent and

potassium chloride. See, e.g., 776 F. 3d 721 (case below

affirming the District Court); Chavez v. Florida SP War-

den, 742 F. 3d 1267 (affirming the District Court); Banks

v. State, 150 So. 3d 797 (Fla. 2014) (affirming the lower

court); Howell v. State, 133 So. 3d 511 (Fla. 2014) (same);

Muhammad v. State, 132 So. 3d 176 (Fla. 2013) (same).

(It is noteworthy that one or both of the two key witnesses

in this case—Dr. Lubarsky for petitioners and Dr. Evans

for respondents—were witnesses in the Chavez, Howell,

and Muhammad cases.) “Where an intermediate court

reviews, and affirms, a trial court’s factual findings, this

Court will not ‘lightly overturn’ the concurrent findings of

the two lower courts.” Easley v. Cromartie, 532 U. S. 234,

242 (2001). Our review is even more deferential where, as

here, multiple trial courts have reached the same finding,

and multiple appellate courts have affirmed those find-

ings. Cf. Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830,

841 (1996) (explaining that this Court “ ‘cannot undertake

to review concurrent findings of fact by two courts below

in the absence of a very obvious and exceptional showing

of error’ ” (quoting Graver Tank & Mfg. Co. v. Linde Air

Products Co., 336 U. S. 271, 275 (1949))).

Fourth, challenges to lethal injection protocols test the

boundaries of the authority and competency of federal

courts. Although we must invalidate a lethal injection

18 GLOSSIP v. GROSS

Opinion of the Court

protocol if it violates the Eighth Amendment, federal

courts should not “embroil [themselves] in ongoing scien-

tific controversies beyond their expertise.” Baze, supra, at

51. Accordingly, an inmate challenging a protocol bears

the burden to show, based on evidence presented to the

court, that there is a substantial risk of severe pain.

A

Petitioners attack the District Court’s findings of fact on

two main grounds.3 First, they argue that even if midazo-

lam is powerful enough to induce unconsciousness, it is too

weak to maintain unconsciousness and insensitivity to

pain once the second and third drugs are administered.

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. Neither argument

succeeds.

The District Court found that midazolam is capable of

placing a person “at a sufficient level of unconsciousness to

resist the noxious stimuli which could occur from the

——————

3 Drs. Lubarsky and Sasich, petitioners’ key witnesses, both testified

that midazolam is inappropriate for a third reason, namely, that it

creates a risk of “paradoxical reactions” such as agitation, hyperactiv-

ity, and combativeness. App. 175 (expert report of Dr. Lubarsky); id., at

242, 244 (expert report of Dr. Sasich). The District Court found, how-

ever, that the frequency with which a paradoxical reaction occurs “is

speculative” and that the risk “occurs with the highest frequency in low

therapeutic doses.” Id., at 78. Indeed, Dr. Sasich conceded that the

incidence or risk of paradoxical reactions with midazolam “is unknown”

and that reports estimate the risk to vary only “from 1% to above 10%.”

Id., at 244. Moreover, the mere fact that a method of execution might

result in some unintended side effects does not amount to an Eighth

Amendment violation. “[T]he Constitution does not demand the avoid-

ance of all risk of pain.” Baze, 553 U. S., at 47 (plurality opinion).

Cite as: 576 U. S. ____ (2015) 19

Opinion of the Court

application of the second and third drugs.” App. 77. This

conclusion was not clearly erroneous. Respondents’ ex-

pert, Dr. Evans, testified that the proper administration of

a 500-milligram dose of midazolam would make it “a

virtual certainty” that any individual would be “at a suffi-

cient level of unconsciousness to resist the noxious stimuli

which could occur from application of the 2nd and 3rd

drugs” used in the Oklahoma protocol. Id., at 302; see also

id., at 322. And petitioners’ experts acknowledged that

they had no contrary scientific proof. See id., at 243–244

(Dr. Sasich stating that the ability of midazolam to render

a person insensate to the second and third drugs “has not

been subjected to scientific testing”); id., at 176 (Dr.

Lubarksy stating that “there is no scientific literature

addressing the use of midazolam as a manner to adminis-

ter lethal injections in humans”).

In an effort to explain this dearth of evidence, Dr. Sasich

testified that “[i]t’s not my responsibility or the [Food and

Drug Administration’s] responsibility to prove that the

drug doesn’t work or is not safe.” Tr. of Preliminary In-

junction Hearing 357 (Tr.). Instead, he stated, “it’s the

responsibility of the proponent to show that the drug is

safe and effective.” Ibid. Dr. Sasich confused the stand-

ard imposed on a drug manufacturer seeking approval of a

therapeutic drug with the standard that must be borne by

a party challenging a State’s lethal injection protocol.

When a method of execution is authorized under state law,

a party contending that this method violates the Eighth

Amendment bears the burden of showing that the method

creates an unacceptable risk of pain. Here, petitioners’

own experts effectively conceded that they lacked evidence

to prove their case beyond dispute.

Petitioners attempt to avoid this deficiency by criticizing

respondents’ expert. They argue that the District Court

should not have credited Dr. Evans’ testimony because he

admitted that his findings were based on “ ‘extrapo-

20 GLOSSIP v. GROSS

Opinion of the Court

lat[ions]’ ” from studies done about much lower therapeutic

doses of midazolam. See Brief for Petitioners 34 (citing Tr.

667–668; emphasis deleted). But because a 500-milligram

dose is never administered for a therapeutic purpose,

extrapolation was reasonable. And the conclusions of

petitioners’ experts were also based on extrapolations and

assumptions. For example, Dr. Lubarsky relied on “ex-

trapolation of the ceiling effect data.” App. 177.

Based on the evidence that the parties presented to the

District Court, we must affirm. Testimony from both sides

supports the District Court’s conclusion that midazolam

can render a person insensate to pain. Dr. Evans testified

that although midazolam is not an analgesic, it can none-

theless “render the person unconscious and ‘insen-

sate’ during the remainder of the procedure.” Id., at 294.

In his discussion about the ceiling effect, Dr. Sasich agreed

that as the dose of midazolam increases, it is “expected to

produce sedation, amnesia, and finally lack of response to

stimuli such as pain (unconsciousness).” Id., at 243.

Petitioners argue that midazolam is not powerful enough

to keep a person insensate to pain after the administration

of the second and third drugs, but Dr. Evans presented

creditable testimony to the contrary. See, e.g., Tr. 661

(testifying that a 500-milligram dose of midazolam will

induce a coma).4 Indeed, low doses of midazolam are

sufficient to induce unconsciousness and are even some-

——————

4 The principal dissent misunderstands the record when it bizarrely

suggests that midazolam is about as dangerous as a peanut. Post, at

15. Dr. Evans and Dr. Lubarsky agreed that midazolam has caused

fatalities in doses as low as 0.04 to 0.07 milligrams per kilogram. App.

217, 294. Even if death from such low doses is a “rare, unfortunate side

effec[t],” post, at 15, the District Court found that a massive 500-

milligram dose—many times higher than the lowest dose reported to

have produced death—will likely cause death in under an hour. App.

76–77.

Cite as: 576 U. S. ____ (2015) 21

Opinion of the Court

times used as the sole relevant drug in certain medical

procedures. Dr. Sasich conceded, for example, that mid-

azolam might be used for medical procedures like colonos-

copies and gastroscopies. App. 267–268; see also Brief for

Respondents 6–8.5

Petitioners emphasize that midazolam is not recom-

mended or approved for use as the sole anesthetic during

painful surgery, but there are two reasons why this is not

dispositive. First, as the District Court found, the 500-

milligram dose at issue here “is many times higher than a

normal therapeutic dose of midazolam.” App. 76. The

effect of a small dose of midazolam has minimal probative

value about the effect of a 500-milligram dose. Second, the

fact that a low dose of midazolam is not the best drug for

maintaining unconsciousness during surgery says little

about whether a 500-milligram dose of midazolam is

constitutionally adequate for purposes of conducting an

execution. We recognized this point in Baze, where we

concluded that although the medical standard of care

might require the use of a blood pressure cuff and an

electrocardiogram during surgeries, this does not mean

those procedures are required for an execution to pass

Eighth Amendment scrutiny. 553 U. S., at 60.

Oklahoma has also adopted important safeguards to

ensure that midazolam is properly administered. The

——————

5 Petitioners’experts also declined to testify that a 500-milligram

dose of midazolam is always insufficient to place a person in a coma

and render him insensate to pain. Dr. Lubarsky argued only that the

500-milligram dose cannot “reliably” produce a coma. Id., 228. And

when Dr. Sasich was asked whether he could say to a reasonable

degree of certainty that a 500-milligram dose of midazolam would not

render someone unconscious, he replied that he could not. Id., at 271–

272. A product label for midazolam that Dr. Sasich attached to his

expert report also acknowledged that an overdose of midazolam can

cause a coma. See Expert Report of Larry D. Sasich, in No. 14–6244

(CA10), p. 34.

22 GLOSSIP v. GROSS

Opinion of the Court

District Court emphasized three requirements in particu-

lar: The execution team must secure both a primary and

backup IV access site, it must confirm the viability of the

IV sites, and it must continuously monitor the offender’s

level of consciousness. The District Court did not commit

clear error in concluding that these safeguards help to

minimize any risk that might occur in the event that

midazolam does not operate as intended. Indeed, we

concluded in Baze that many of the safeguards that Okla-

homa employs—including the establishment of a primary

and backup IV and the presence of personnel to monitor

an inmate—help in significantly reducing the risk that an

execution protocol will violate the Eighth Amendment.

Id., at 55–56. And many other safeguards that Oklahoma

has adopted mirror those that the dissent in Baze com-

plained were absent from Kentucky’s protocol in that case.

For example, the dissent argued that because a conscious-

ness check before injection of the second drug “can reduce

a risk of dreadful pain,” Kentucky’s failure to include that

step in its procedure was unconstitutional. Id., at 119

(opinion of GINSBURG, J.). The dissent also complained

that Kentucky did not monitor the effectiveness of the first

drug or pause between injection of the first and second

drugs. Id., at 120–121. Oklahoma has accommodated

each of those concerns.

B

Petitioners assert that midazolam’s “ceiling effect”

undermines the District Court’s finding about the effec-

tiveness of the huge dose administered in the Oklahoma

protocol. Petitioners argue that midazolam has a “ceiling”

above which any increase in dosage produces no effect. As

a result, they maintain, it is wrong to assume that a 500-

milligram dose has a much greater effect than a therapeu-

tic dose of about 5 milligrams. But the mere fact that

midazolam has such a ceiling cannot be dispositive. Dr.

Cite as: 576 U. S. ____ (2015) 23

Opinion of the Court

Sasich testified that “all drugs essentially have a ceiling

effect.” Tr. 343. The relevant question here is whether

midazolam’s ceiling effect occurs below the level of a 500-

milligram dose and at a point at which the drug does not

have the effect of rendering a person insensate to pain

caused by the second and third drugs.

Petitioners provided little probative evidence on this

point, and the speculative evidence that they did present

to the District Court does not come close to establishing

that its factual findings were clearly erroneous.

Dr. Sasich stated in his expert report that the literature

“indicates” that midazolam has a ceiling effect, but he

conceded that he “was unable to determine the midazolam

dose for a ceiling effect on unconsciousness because there

is no literature in which such testing has been done.” App.

243–244. Dr. Lubarsky’s report was similar, id., at 171–

172, and the testimony of petitioners’ experts at the hear-

ing was no more compelling. Dr. Sasich frankly admitted

that he did a “search to try and determine at what dose of

midazolam you would get a ceiling effect,” but concluded:

“I could not find one.” Tr. 344. The closest petitioners

came was Dr. Lubarsky’s suggestion that the ceiling effect

occurs “[p]robably after about . . . 40 to 50 milligrams,” but

he added that he had not actually done the relevant calcu-

lations, and he admitted: “I can’t tell you right now” at

what dose the ceiling effect occurs. App. 225. We cannot

conclude that the District Court committed clear error in

declining to find, based on such speculative evidence, that

the ceiling effect negates midazolam’s ability to render an

inmate insensate to pain caused by the second and third

drugs in the protocol.

The principal dissent discusses the ceiling effect at

length, but it studiously avoids suggesting that petitioners

presented probative evidence about the dose at which the

ceiling effect occurs or about whether the effect occurs

before a person becomes insensate to pain. The principal

24 GLOSSIP v. GROSS

Opinion of the Court

dissent avoids these critical issues by suggesting that such

evidence is “irrelevant if there is no dose at which the drug

can . . . render a person ‘insensate to pain.’ ” Post, at 17.

But the District Court heard evidence that the drug can

render a person insensate to pain, and not just from Dr.

Evans: Dr. Sasich (one of petitioners’ own experts) testi-

fied that higher doses of midazolam are “expected to pro-

duce . . . lack of response to stimuli such as pain.” App.

243.6

In their brief, petitioners attempt to deflect attention

from their failure of proof regarding midazolam’s ceiling

effect by criticizing Dr. Evans’ testimony. But it was

petitioners’ burden to establish that midazolam’s ceiling

occurred at a dosage below the massive 500-milligram

dose employed in the Oklahoma protocol and at a point at

which the drug failed to render the recipient insensate to

pain. They did not meet that burden, and their criticisms

do not undermine Dr. Evans’ central point, which the

District Court credited, that a properly administered 500-

milligram dose of midazolam will render the recipient

unable to feel pain.

One of petitioners’ criticisms of Dr. Evans’ testimony is

little more than a quibble about the wording chosen by Dr.

Evans at one point in his oral testimony. Petitioners’

expert, Dr. Lubarsky, stated in his report that midazolam

“increases effective binding of [gamma-aminobutyric acid

(GABA)] to its receptor to induce unconsciousness.”7 App.

——————

6 The principal dissent emphasizes Dr. Lubarsky’s supposedly contra-

ry testimony, but the District Court was entitled to credit Dr. Evans

(and Dr. Sasich) instead of Dr. Lubarsky on this point. And the District

Court had strong reasons not to credit Dr. Lubarsky, who even argued

that a protocol that includes sodium thiopental is “constructed to

produce egregious harm and suffering.” App. 227.

7 GABA is “an amino acid that functions as an inhibitory neuro-

transmitter in the brain and spinal cord.” Mosby’s Medical Dictionary

Cite as: 576 U. S. ____ (2015) 25

Opinion of the Court

172. Dr. Evans’ report provided a similar explanation of

the way in which midazolam works, see id., at 293–294,

and Dr. Lubarsky did not dispute the accuracy of that

explanation when he testified at the hearing. Petitioners

contend, however, that Dr. Evans erred when he said at

the hearing that “[m]idazolam attaches to GABA recep-

tors, inhibiting GABA.” Id., at 312 (emphasis added).

Petitioners contend that this statement was incorrect

because “far from inhibiting GABA, midazolam facilitates

its binding to GABA receptors.” Brief for Petitioners 38.

In making this argument, petitioners are simply quar-

relling with the words that Dr. Evans used during oral

testimony in an effort to explain how midazolam works in

terms understandable to a layman. Petitioners do not

suggest that the discussion of midazolam in Dr. Evans’

expert report was inaccurate, and as for Dr. Evans’ pass-

ing use of the term “inhibiting,” Dr. Lubarksy’s own expert

report states that GABA’s “inhibition of brain activity is

accentuated by midazolam.” App. 232 (emphasis added).

Dr. Evans’ oral use of the word “inhibiting”—particularly

in light of his written testimony—does not invalidate the

District Court’s decision to rely on his testimony.

Petitioners also point to an apparent conflict between

Dr. Evans’ testimony and a declaration by Dr. Lubarsky

(submitted after the District Court ruled) regarding the

biological process that produces midazolam’s ceiling effect.

But even if Dr. Lubarsky’s declaration is correct, it is

largely beside the point. What matters for present pur-

poses is the dosage at which the ceiling effect kicks in, not

the biological process that produces the effect. And Dr.

Lubarsky’s declaration does not render the District Court’s

findings clearly erroneous with respect to that critical

issue.

——————

782 (7th ed. 2006).

26 GLOSSIP v. GROSS

Opinion of the Court

C

Petitioners’ remaining arguments about midazolam all

lack merit. First, we are not persuaded by petitioners’

argument that Dr. Evans’ testimony should have been

rejected because of some of the sources listed in his report.

Petitioners criticize two of the “selected references” that

Dr. Evans cited in his expert report: the Web site

drugs.com and a material safety data sheet (MSDS) about

midazolam. Petitioners’ argument is more of a Daubert

challenge to Dr. Evans’ testimony than an argument that

the District Court’s findings were clearly erroneous. The

District Court concluded that Dr. Evans was “well-

qualified to give the expert testimony that he gave” and

that “his testimony was the product of reliable principles

and methods reliably applied to the facts of this case.”

App. 75–76. To the extent that the reliability of Dr.

Evans’ testimony is even before us, the District Court’s con-

clusion that his testimony was based on reliable sources is

reviewed under the deferential “abuse-of-discretion”

standard. General Elec. Co. v. Joiner, 522 U. S. 136, 142–

143 (1997). Dr. Evans relied on multiple sources and his

own expertise, and his testimony may not be disqualified

simply because one source (drugs.com) warns that it “ ‘is

not intended for medical advice’ ” and another (the MSDS)

states that its information is provided “ ‘without any war-

ranty, express or implied, regarding its correctness.’ ”

Brief for Petitioners 36. Medical journals that both par-

ties rely upon typically contain similar disclaimers. See,

e.g., Anesthesiology, Terms and Conditions of Use, online

at http://anesthesiology.pubs.asahq.org/ss/terms.aspx

(“None of the information on this Site shall be used to

diagnose or treat any health problem or disease”). Dr.

Lubarsky—petitioners’ own expert—relied on an MSDS to

argue that midazolam has a ceiling effect. And petitioners

do not identify any incorrect statements from drugs.com

on which Dr. Evans relied. In fact, although Dr. Sasich

Cite as: 576 U. S. ____ (2015) 27

Opinion of the Court

submitted a declaration to the Court of Appeals criticizing

Dr. Evans’ reference to drugs.com, that declaration does

not identify a single fact from that site’s discussion of

midazolam that was materially inaccurate.

Second, petitioners argue that Dr. Evans’ expert report

contained a mathematical error, but we find this argu-

ment insignificant. Dr. Evans stated in his expert report

that the lowest dose of midazolam resulting in human

deaths, according to an MSDS, is 0.071 mg/kg delivered

intravenously. App. 294. Dr. Lubarsky agreed with this

statement. Specifically, he testified that fatalities have

occurred in doses ranging from 0.04 to 0.07 mg/kg, and he

stated that Dr. Evans’ testimony to that effect was “a true

statement” (though he added those fatalities occurred

among the elderly). Id., at 217. We do not understand

petitioners to dispute the testimony of Dr. Evans and their

own expert that 0.071 mg/kg is a potentially fatal dose of

midazolam. Instead, they make much of the fact that the

MSDS attached to Dr. Evans’ report apparently contained

a typographical error and reported the lowest toxic dose as

71 mg/kg. That Dr. Evans did not repeat that incorrect

figure but instead reported the correct dose supports

rather than undermines his testimony. In any event, the

alleged error in the MSDS is irrelevant because the Dis-

trict Court expressly stated that it did not rely on the

figure in the MSDS. See id., at 75.

Third, petitioners argue that there is no consensus

among the States regarding midazolam’s efficacy because

only four States (Oklahoma, Arizona, Florida, and Ohio)

have used midazolam as part of an execution. Petitioners

rely on the plurality’s statement in Baze that “it is difficult

to regard a practice as ‘objectively intolerable’ when it is in

fact widely tolerated,” and the plurality’s emphasis on the

fact that 36 States had adopted lethal injection and 30

States used the particular three-drug protocol at issue in

that case. 553 U. S., at 53. But while the near-universal

28 GLOSSIP v. GROSS

Opinion of the Court

use of the particular protocol at issue in Baze supported

our conclusion that this protocol did not violate the Eighth

Amendment, we did not say that the converse was true,

i.e., that other protocols or methods of execution are of

doubtful constitutionality. That argument, if accepted,

would hamper the adoption of new and potentially more

humane methods of execution and would prevent States

from adapting to changes in the availability of suitable

drugs.

Fourth, petitioners argue that difficulties with Oklaho-

ma’s execution of Lockett and Arizona’s July 2014 execu-

tion of Joseph Wood establish that midazolam is sure or

very likely to cause serious pain. We are not persuaded.

Aside from the Lockett execution, 12 other executions

have been conducted using the three-drug protocol at issue

here, and those appear to have been conducted without

any significant problems. See Brief for Respondents 32;

Brief for State of Florida as Amicus Curiae 1. Moreover,

Lockett was administered only 100 milligrams of midazo-

lam, and Oklahoma’s investigation into that execution

concluded that the difficulties were due primarily to the

execution team’s inability to obtain an IV access site. And

the Wood execution did not involve the protocol at issue

here. Wood did not receive a single dose of 500 milligrams

of midazolam; instead, he received fifteen 50-milligram

doses over the span of two hours.8 Brief for Respondents

——————

8 The principal dissent emphasizes Dr. Lubarsky’s testimony that it is

irrelevant that Wood was administered the drug over a 2-hour period.

Post, at 20. But Dr. Evans disagreed and testified that if a 750-

milligram dose “was spread out over a long period of time,” such as one

hour (i.e., half the time at issue in the Wood execution), the drug might

not be as effective as if it were administered all at once. Tr. 667. The

principal dissent states that this “pronouncement was entirely unsup-

ported,” post, at 20, n. 6, but it was supported by Dr. Evans’ expertise

and decades of experience. And it would be unusual for an expert

testifying on the stand to punctuate each sentence with citation to a

Cite as: 576 U. S. ____ (2015) 29

Opinion of the Court

12, n. 9. And Arizona used a different two-drug protocol

that paired midazolam with hydromorphone, a drug that

is not at issue in this case. Ibid. When all of the circum-

stances are considered, the Lockett and Wood executions

have little probative value for present purposes.

Finally, we find it appropriate to respond to the princi-

pal dissent’s groundless suggestion that our decision is

tantamount to allowing prisoners to be “drawn and quar-

tered, slowly tortured to death, or actually burned at the

stake.” Post, at 28. That is simply not true, and the prin-

cipal dissent’s resort to this outlandish rhetoric reveals the

weakness of its legal arguments.

VI

For these reasons, the judgment of the Court of Appeals

for the Tenth Circuit is affirmed.

It is so ordered.

——————

medical journal.

After the Wood execution, Arizona commissioned an independent

assessment of its execution protocol and the Wood execution. According

to that report, the IV team leader, medical examiner, and an independ-

ent physician all agreed that the dosage of midazolam “would result in

heavy sedation.” Ariz. Dept. of Corrections, Assessment and Review of

the Ariz. Dept. of Corrections Execution Protocols 46, 48 (Dec. 15,

2014), online at https://corrections.az.gov/sites/default/files/documents/

PDFs/arizona_final_report_12_15_14_w_cover.pdf. And far from

blaming midazolam for the Wood execution, the report recommended

that Arizona replace its two-drug protocol with Oklahoma’s three-drug

protocol that includes a 500-milligram dose of midazolam as the first

drug. Id., at 49.

Cite as: 576 U. S. ____ (2015) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–7955

_________________

RICHARD E. GLOSSIP, ET AL., PETITIONERS v.

KEVIN J. GROSS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 29, 2015]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

concurring.

I join the opinion of the Court, and write to respond to

JUSTICE BREYER’s plea for judicial abolition of the death

penalty.

Welcome to Groundhog Day. The scene is familiar:

Petitioners, sentenced to die for the crimes they committed

(including, in the case of one petitioner since put to death,

raping and murdering an 11–month-old baby), come before

this Court asking us to nullify their sentences as “cruel

and unusual” under the Eighth Amendment. They rely on

this provision because it is the only provision they can rely

on. They were charged by a sovereign State with murder.

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 ap-

propriate sentence. They were duly convicted and sen-

tenced. They were granted the right to appeal and to seek

postconviction relief, first in state and then in federal

court. And now, acknowledging that their convictions are

unassailable, they ask us for clemency, as though clemency

were ours to give.

The response is also familiar: A vocal minority of the

Court, waving over their heads a ream of the most recent

abolitionist studies (a superabundant genre) as though

2 GLOSSIP v. GROSS

SCALIA, J., concurring

they have discovered the lost folios of Shakespeare, insist

that now, at long last, the death penalty must be abolished

for good. Mind you, not once in the history of the Ameri-

can Republic has this Court ever suggested the death

penalty is categorically impermissible. The reason is

obvious: It is impossible to hold unconstitutional that

which the Constitution explicitly contemplates. The Fifth

Amendment provides that “[n]o person shall be held to

answer for a capital . . . crime, unless on a presentment or

indictment of a Grand Jury,” and that no person shall be

“deprived of life . . . without due process of law.” Never-

theless, today JUSTICE BREYER takes on the role of the

abolitionists in this long-running drama, arguing that the

text of the Constitution and two centuries of history must

yield to his “20 years of experience on this Court,” and

inviting full briefing on the continued permissibility of

capital punishment, post, at 2 (dissenting opinion).

Historically, the Eighth Amendment was understood to

bar only those punishments that added “ ‘terror, pain, or

disgrace’ ” to an otherwise permissible capital sentence.

Baze v. Rees, 553 U. S. 35, 96 (2008) (THOMAS, J., concur-

ring in judgment). Rather than bother with this troubling

detail, JUSTICE BREYER elects to contort the constitutional

text. Redefining “cruel” to mean “unreliable,” “arbitrary,”

or causing “excessive delays,” and “unusual” to include a

“decline in use,” he proceeds to offer up a white paper

devoid of any meaningful legal argument.

Even accepting JUSTICE BREYER’s rewriting of the

Eighth Amendment, his argument is full of internal con-

tradictions and (it must be said) gobbledy-gook. He says

that the death penalty is cruel because it is unreliable; but

it is convictions, not punishments, that are unreliable.

Moreover, the “pressure on police, prosecutors, and jurors

to secure a conviction,” which he claims increases the risk

of wrongful convictions in capital cases, flows from the

nature of the crime, not the punishment that follows its

Cite as: 576 U. S. ____ (2015) 3

SCALIA, J., concurring

commission. Post, at 6. JUSTICE BREYER acknowledges as

much: “[T]he crimes at issue in capital cases are typically

horrendous murders, and thus accompanied by intense

community pressure.” Ibid. That same pressure would

exist, and the same risk of wrongful convictions, if horren-

dous death-penalty cases were converted into equally

horrendous life-without-parole cases. The reality is that

any innocent defendant is infinitely better off appealing a

death sentence than a sentence of life imprisonment.

(Which, again, JUSTICE BREYER acknowledges: “[C]ourts

(or State Governors) are 130 times more likely to exoner-

ate a defendant where a death sentence is at issue,” post,

at 5.) The capital convict will obtain endless legal assis-

tance from the abolition lobby (and legal favoritism from

abolitionist judges), while the lifer languishes unnoticed

behind bars.

JUSTICE BREYER next says that the death penalty is

cruel because it is arbitrary. To prove this point, he points

to a study of 205 cases that “measured the ‘egregiousness’

of the murderer’s conduct” with “a system of metrics,” and

then “compared the egregiousness of the conduct of the 9

defendants sentenced to death with the egregiousness of

the conduct of defendants in the remaining 196 cases [who

were not sentenced to death],” post, at 10–11. If only

Aristotle, Aquinas, and Hume knew that moral philosophy

could be so neatly distilled into a pocket-sized, vade me-

cum “system of metrics.” Of course it cannot: Egregious-

ness is a moral judgment susceptible of few hard-and-fast

rules. More importantly, egregiousness of the crime is

only one of several factors that render a punishment con-

dign—culpability, rehabilitative potential, and the need

for deterrence also are relevant. That is why this Court

has required an individualized consideration of all miti-

gating circumstances, rather than formulaic application of

some egregiousness test.

It is because these questions are contextual and admit of

4 GLOSSIP v. GROSS

SCALIA, J., concurring

no easy answers that we rely on juries to make judgments

about the people and crimes before them. The fact that

these judgments may vary across cases is an inevitable

consequence of the jury trial, that cornerstone of Anglo-

American judicial procedure. But when a punishment is

authorized by law—if you kill you are subject to death—

the fact that some defendants receive mercy from their

jury no more renders the underlying punishment “cruel”

than does the fact that some guilty individuals are never

apprehended, are never tried, are acquitted, or are

pardoned.

JUSTICE BREYER’s third reason that the death penalty is

cruel is that it entails delay, thereby (1) subjecting in-

mates to long periods on death row and (2) undermining

the penological justifications of the death penalty. The

first point is nonsense. Life without parole is an even

lengthier period than the wait on death row; and if the

objection is that death row is a more confining environ-

ment, the solution should be modifying the environment

rather than abolishing the death penalty. As for the

argument that delay undermines the penological ration-

ales for the death penalty: In insisting that “the major

alternative to capital punishment—namely, life in prison

without possibility of parole—also incapacitates,” post, at

24, JUSTICE BREYER apparently forgets that one of the

plaintiffs in this very case was already in prison when he

committed the murder that landed him on death row.

JUSTICE BREYER further asserts that “whatever interest in

retribution might be served by the death penalty as cur-

rently administered, that interest can be served almost as

well by a sentence of life in prison without parole,” post, at

27. My goodness. If he thinks the death penalty not much

more harsh (and hence not much more retributive), why is

he so keen to get rid of it? With all due respect, whether

the death penalty and life imprisonment constitute more-

or-less equivalent retribution is a question far above the

Cite as: 576 U. S. ____ (2015) 5

SCALIA, J., concurring

judiciary’s pay grade. Perhaps JUSTICE BREYER is more

forgiving—or more enlightened—than those who, like

Kant, believe that death is the only just punishment for

taking a life. I would not presume to tell parents whose

life has been forever altered by the brutal murder of a

child that life imprisonment is punishment enough.

And finally, JUSTICE BREYER speculates that it does not

“seem likely” that the death penalty has a “significant”

deterrent effect. Post, at 25. It seems very likely to me,

and there are statistical studies that say so. See, e.g.,

Zimmerman, State Executions, Deterrence, and the Inci-

dence of Murder, 7 J. Applied Econ. 163, 166 (2004) (“[I]t

is estimated that each state execution deters approximately

fourteen murders per year on average”); Dezhbakhsh,

Rubin, & Shepherd, Does Capital Punishment Have a

Deterrent Effect? New Evidence from Postmoratorium

Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) (“[E]ach

execution results, on average, in eighteen fewer murders”

per year); Sunstein & Vermeule, Is Capital Punishment

Morally Required? Acts, Omissions, and Life-Life

Tradeoffs, 58 Stan. L. Rev. 703, 713 (2005) (“All in all, the

recent evidence of a deterrent effect from capital punish-

ment seems impressive, especially in light of its ‘apparent

power and unanimity’ ”). But we federal judges live in a

world apart from the vast majority of Americans. After

work, we retire to homes in placid suburbia or to high-rise

co-ops with guards at the door. We are not confronted

with the threat of violence that is ever present in many

Americans’ everyday lives. The suggestion that the in-

cremental deterrent effect of capital punishment does not

seem “significant” reflects, it seems to me, a let-them-eat-

cake obliviousness to the needs of others. Let the People

decide how much incremental deterrence is appropriate.

Of course, this delay is a problem of the Court’s own

making. As JUSTICE BREYER concedes, for more than 160

years, capital sentences were carried out in an average of

6 GLOSSIP v. GROSS

SCALIA, J., concurring

two years or less. Post, at 18. But by 2014, he tells us, it

took an average of 18 years to carry out a death sentence.

Id., at 19. What happened in the intervening years?

Nothing other than the proliferation of labyrinthine re-

strictions on capital punishment, promulgated by this

Court under an interpretation of the Eighth Amendment

that empowered it to divine “the evolving standards of

decency that mark the progress of a maturing society,”

Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opin-

ion)—a task for which we are eminently ill suited. Indeed,

for the past two decades, JUSTICE BREYER has been the

Drum Major in this parade. His invocation of the result-

ant delay as grounds for abolishing the death penalty calls

to mind the man sentenced to death for killing his parents,

who pleads for mercy on the ground that he is an orphan.

Amplifying the surrealism of his argument, JUSTICE

BREYER uses the fact that many States have abandoned

capital punishment—have abandoned it precisely because

of the costs those suspect decisions have imposed—to

conclude that it is now “unusual.” Post, at 33–39. (A

caution to the reader: Do not use the creative arithmetic

that JUSTICE BREYER employs in counting the number of

States that use the death penalty when you prepare your

next tax return; outside the world of our Eighth Amend-

ment abolitionist-inspired jurisprudence, it will be regarded

as more misrepresentation than math.)

If we were to travel down the path that JUSTICE BREYER

sets out for us and once again consider the constitutionality

of the death penalty, I would ask that counsel also brief

whether our cases that have abandoned the historical

understanding of the Eighth Amendment, beginning with

Trop, should be overruled. That case has caused more

mischief to our jurisprudence, to our federal system, and

to our society than any other that comes to mind. JUSTICE

BREYER’s dissent is the living refutation of Trop’s assump-

tion that this Court has the capacity to recognize “evolving

Cite as: 576 U. S. ____ (2015) 7

SCALIA, J., concurring

standards of decency.” Time and again, the People have

voted to exact the death penalty as punishment for the

most serious of crimes. Time and again, this Court has

upheld that decision. And time and again, a vocal minor-

ity of this Court has insisted that things have “changed

radically,” post, at 2, and has sought to replace the judg-

ments of the People with their own standards of decency.

Capital punishment presents moral questions that

philosophers, theologians, and statesmen have grappled

with for millennia. The Framers of our Constitution

disagreed bitterly on the matter. For that reason, they

handled it the same way they handled many other contro-

versial issues: they left it to the People to decide. By

arrogating to himself the power to overturn that decision,

JUSTICE BREYER does not just reject the death penalty, he

rejects the Enlightenment.

Cite as: 576 U. S. ____ (2015) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–7955

_________________

RICHARD E. GLOSSIP, ET AL., PETITIONERS v.

KEVIN J. GROSS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 29, 2015]

JUSTICE THOMAS, with whom JUSTICE SCALIA joins,

concurring.

I agree with the Court that petitioners’ Eighth Amend-

ment claim fails. That claim has no foundation in the

Eighth Amendment, which prohibits only those “method[s]

of execution” that are “deliberately designed to inflict

pain.” Baze v. Rees, 553 U. S. 35, 94 (2008) (THOMAS, J.,

concurring in judgment). Because petitioners make no

allegation that Oklahoma adopted its lethal injection

protocol “to add elements of terror, pain, or disgrace to the

death penalty,” they have no valid claim. Id., at 107.

That should have been the end of this case, but our prece-

dents have predictably transformed the federal courts

“into boards of inquiry charged with determining the ‘best

practices’ for executions,” id., at 101 (internal quotation

marks omitted), necessitating the painstaking factual

inquiry the Court undertakes today. Although I continue

to believe that the broader interpretation of the Eighth

Amendment advanced in the plurality opinion in Baze is

erroneous, I join the Court’s opinion in full because it

correctly explains why petitioners’ claim fails even under

that controlling opinion.

I write separately to respond to JUSTICE BREYER’s dis-

sent questioning the constitutionality of the death penalty

generally. No more need be said about the constitutional

2 GLOSSIP v. GROSS

THOMAS, J., concurring

arguments on which JUSTICE BREYER relies, as my col-

leagues and I have elsewhere refuted them.1 But JUSTICE

BREYER’s assertion, post, at 10, that the death penalty in

this country has fallen short of the aspiration that capital

punishment be reserved for the “worst of the worst” —a

notion itself based on an implicit proportionality principle

that has long been discredited, see Harmelin v. Michigan,

——————

1 Generally: Baze v. Rees, 553 U. S. 35, 94–97 (2008) (THOMAS, J.,

concurring in judgment) (explaining that the Cruel and Unusual

Punishments Clause does not prohibit the death penalty, but only

torturous punishments); Graham v. Collins, 506 U. S. 461, 488 (1993)

(THOMAS, J., concurring); Gardner v. Florida, 430 U. S. 349, 371 (1977)

(Rehnquist, J., dissenting) (“The prohibition of the Eighth Amendment

relates to the character of the punishment, and not to the process by

which it is imposed”). On reliability: Kansas v. Marsh, 548 U. S. 163,

181 (2006) (noting that the death penalty remains constitutional

despite imperfections in the criminal justice system); McGautha v.

California, 402 U. S. 183, 221 (1971) (“[T]he Federal Constitution,

which marks the limits of our authority in these cases, does not guar-

antee trial procedures that are the best of all worlds, or that accord

with the most enlightened ideas of students of the infant science of

criminology, or even those that measure up to the individual predilec-

tions of members of this Court”). On arbitrariness: Ring v. Arizona,

536 U. S. 584, 610 (2002) (SCALIA, J., concurring) (explaining that what

compelled States to specify “ ‘aggravating factors’ ” designed to limit the

death penalty to the worst of the worst was this Court’s baseless

jurisprudence concerning juror discretion); McCleskey v. Kemp, 481

U. S. 279, 308–312 (1987) (noting that various procedures, including

the right to a jury trial, constitute a defendant’s protection against

arbitrariness in the application of the death penalty). On excessive

delays: Knight v. Florida, 528 U. S. 990 (1999) (THOMAS, J., concurring

in denial of certiorari) (“I am unaware of any support in the American

constitutional tradition or in this Court’s precedent for the proposition

that a defendant can avail himself of the panoply of appellate and

collateral procedures and then complain when his execution is de-

layed”); see also Johnson v. Bredesen, 558 U. S. 1067, 1070 (2009)

(THOMAS, J., concurring in denial of certiorari). And on the decline in

use of the death penalty: Atkins v. Virginia, 536 U. S. 304, 345 (2002)

(SCALIA, J., dissenting); Woodson v. North Carolina, 428 U. S. 280, 308–

310 (1976) (Rehnquist, J., dissenting).

Cite as: 576 U. S. ____ (2015) 3

THOMAS, J., concurring

501 U. S. 957, 966 (1991) (opinion of SCALIA, J.)—merits

further comment. His conclusion is based on an analysis

that itself provides a powerful case against enforcing an

imaginary constitutional rule against “arbitrariness.”

The thrust of JUSTICE BREYER’s argument is that empir-

ical studies performed by death penalty abolitionists

reveal that the assignment of death sentences does not

necessarily correspond to the “egregiousness” of the

crimes, but instead appears to be correlated to “arbitrary”

factors, such as the locality in which the crime was com-

mitted. Relying on these studies to determine the consti-

tutionality of the death penalty fails to respect the values

implicit in the Constitution’s allocation of decisionmaking

in this context. The Donohue study, on which JUSTICE

BREYER relies most heavily, measured the “egregiousness”

(or “deathworthiness”) of murders by asking lawyers to

identify the legal grounds for aggravation in each case,

and by asking law students to evaluate written summaries

of the murders and assign “egregiousness” scores based on

a rubric designed to capture and standardize their moral

judgments. Donohue, An Empirical Evaluation of the

Connecticut Death Penalty System Since 1973, Are There

Unlawful Racial, Gender, and Geographic Disparities? 11

J. of Empirical Legal Studies 637, 644–645 (2014). This

exercise in some ways approximates the function per-

formed by jurors, but there is at least one critical differ-

ence: The law students make their moral judgments based

on written summaries—they do not sit through hours,

days, or weeks of evidence detailing the crime; they do not

have an opportunity to assess the credibility of witnesses,

to see the remorse of the defendant, to feel the impact of

the crime on the victim’s family; they do not bear the

burden of deciding the fate of another human being; and

they are not drawn from the community whose sense of

security and justice may have been torn asunder by an act

of callous disregard for human life. They are like appel-

4 GLOSSIP v. GROSS

THOMAS, J., concurring

late judges and justices, reviewing only a paper record of

each side’s case for life or death.

There is a reason the choice between life and death,

within legal limits, is left to the jurors and judges who sit

through the trial, and not to legal elites (or law students).2

That reason is memorialized not once, but twice, in our

Constitution: Article III guarantees that “[t]he Trial of all

Crimes, except in cases of Impeachment, shall be by Jury”

and that “such Trial shall be held in the State where the

said Crimes shall have been committed.” Art. III, §2, cl. 3.

And the Sixth Amendment promises that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a . . .

trial, by an impartial jury of the State and district wherein

the crime shall have been committed.” Those provisions

ensure that capital defendants are given the option to be

sentenced by a jury of their peers who, collectively, are

better situated to make the moral judgment between life

and death than are the products of contemporary Ameri-

can law schools.

It should come as no surprise, then, that the primary

explanation a regression analysis revealed for the gap

between the egregiousness scores and the actual sentences

was not the race or sex of the offender or victim, but the

locality in which the crime was committed. Donohue,

supra, at 640; see also post, at 12 (BREYER, J., dissenting).

What is more surprising is that JUSTICE BREYER considers

——————

2 For some, a faith in the jury seems to be correlated to that institu-

tion’s likelihood of preventing imposition of the death penalty. See, e.g.,

Ring v. Arizona, 536 U. S. 584, 614 (2002) (BREYER, J., concurring in

judgment) (arguing that “the Eighth Amendment requires that a jury,

not a judge, make the decision to sentence a defendant to death”);

Wainwright v. Witt, 469 U. S. 412, 440, n. 1 (1985) (Brennan, J., dis-

senting) (“However heinous Witt’s crime, the majority’s vivid portrait of

its gruesome details has no bearing on the issue before us. It is not for

this Court to decide whether Witt deserves to die. That decision must

first be made by a jury of his peers”).

Cite as: 576 U. S. ____ (2015) 5

THOMAS, J., concurring

this factor to be evidence of arbitrariness. See ibid. The

constitutional provisions just quoted, which place such

decisions in the hands of jurors and trial courts located

where “the crime shall have been committed,” seem delib-

erately designed to introduce that factor.

In any event, the results of these studies are inherently

unreliable because they purport to control for egregious-

ness by quantifying moral depravity in a process that is

itself arbitrary, not to mention dehumanizing. One such

study’s explanation of how the author assigned “depravity

points” to identify the “worst of the worst” murderers

proves the point well. McCord, Lightning Still Strikes, 71

Brooklyn L. Rev. 797, 833–834 (2005). Each aggravating

factor received a point value based on the “blame-

worth[iness]” of the action associated with it. Id., at 830.

Killing a prison guard, for instance, earned a defendant

three “depravity points” because it improved the case for

complete incapacitation, while killing a police officer

merited only two, because, “considered dispassionately,”

such acts do “not seem be a sine qua non of the worst

criminals.” Id., at 834–836. (Do not worry, the author

reassures us, “many killers of police officers accrue de-

pravity points in other ways that clearly put them among

the worst criminals.” Id., at 836.) Killing a child under

the age of 12 was worth two depravity points, because

such an act “seems particularly heartless,” but killing

someone over the age of 70 earned the murderer only one,

for although “elderly victims tug at our hearts,” they do so

“less” than children “because the promise of a long life is

less.” Id., at 836, 838. Killing to make a political state-

ment was worth three depravity points; killing out of

racial hatred, only two. Id., at 835, 837. It goes on, but

this small sample of the moral judgments on which this

study rested shows just how unsuitable this evidence is to

serve as a basis for a judicial decision declaring unconsti-

tutional a punishment duly enacted in more than 30

6 GLOSSIP v. GROSS

THOMAS, J., concurring

States, and by the Federal Government.

We owe victims more than this sort of pseudoscientific

assessment of their lives. It is bad enough to tell a mother

that her child’s murder is not “worthy” of society’s ulti-

mate expression of moral condemnation. But to do so

based on cardboard stereotypes or cold mathematical

calculations is beyond my comprehension. In my decades

on the Court, I have not seen a capital crime that could

not be considered sufficiently “blameworthy” to merit a

death sentence (even when genuine constitutional errors

justified a vacatur of that sentence).3

A small sample of the applications for a stay of execu-

tion that have come before the Court this Term alone

proves my point. Mark Christeson was due to be executed

in October 2014 for his role in the murder of Susan Brouk

and her young children, Adrian and Kyle. After raping

——————

3 For his part, JUSTICE BREYER explains that his experience on the

Court has shown him “discrepancies for which [he] can find no rational

explanations.” Post, at 16. Why, he asks, did one man receive death for

a single-victim murder, while another received life for murdering a

young mother and nearly killing her infant? Ibid. The outcomes in

those two cases may not be morally compelled, but there was certainly

a rational explanation for them: The first man, who had previously

confessed to another murder, killed a disabled man who had offered

him a place to stay for the night. State v. Badgett, 361 N. C. 234, 239–

240, 644 S. E. 2d 206, 209–210 (2007). The killer stabbed his victim’s

throat and prevented him from seeking medical attention until he bled

to death. Ibid. The second man expressed remorse for his crimes and

claimed to suffer from mental disorders. See Charbonneau, Andre

Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26,

2004, online at http://www.wral.com/news/local/story/109648 (all Inter-

net materials as visited June 25, 2015, and available in Clerk of Court’s

case file); Charbonneau, Jury Finds Andre Edwards Guilty of First-Degree

Murder, WRAL, Mar. 23, 2004, online at http://www.wral.com/news/local/

story/109563. The other “discrepancies” similarly have “rational”

explanations, even if reasonable juries could have reached different

results.

Cite as: 576 U. S. ____ (2015) 7

THOMAS, J., concurring

Ms. Brouk at gunpoint, he and his accomplice drove the

family to a remote pond, where Christeson cut Ms. Brouk’s

throat with a bone knife. State v. Christeson, 50 S. W. 3d

251, 257–258 (Mo. 2001). Although bleeding profusely,

she stayed alive long enough to tell her children she loved

them and to watch as Christeson murdered them—her

son, by cutting his throat twice and drowning him; her

daughter, by pressing down on her throat until she suffo-

cated. Ibid. Christeson and his accomplice then threw

Ms. Brouk—alive but barely breathing—into the pond to

drown on top of her dead children. Ibid. This Court

granted him a stay of execution. Christeson v. Roper, 574

U. S. ___ (2014). Lisa Ann Coleman was not so lucky. She

was executed on September 17, 2014, for murdering her

girlfriend’s son, 9-year-old Davontae Williams, by slowly

starving him to death. Coleman v. State, 2009 WL

4696064, *1 (Tex. Crim. App., Dec. 9, 2009). When he

died, Davontae had over 250 distinct injuries—including

cigarette burns and ligature marks—on his 36-pound

frame. Id., at *2. Infections from untreated wounds con-

tributed to his other cause of death: pneumonia. Id., at

*1–*2. And Johnny Shane Kormondy, who met his end on

January 15, 2015, did so after he and his two accomplices

invaded the home of a married couple, took turns raping

the wife and forcing her to perform oral sex at gunpoint—

at one point, doing both simultaneously—and then put a

bullet in her husband’s head during the final rape. Kor-

mondy v. Secretary, Fla. Dept. of Corrections, 688 F. 3d

1244, 1247–1248 (CA11 2012).

Some of our most “egregious” cases have been those in

which we have granted relief based on an unfounded

Eighth Amendment claim. For example, we have granted

relief in a number of egregious cases based on this Court’s

decision in Atkins v. Virginia, 536 U. S. 304 (2002), ex-

empting certain “mentally retarded” offenders from the

death penalty. Last Term, the Court granted relief to a

8 GLOSSIP v. GROSS

THOMAS, J., concurring

man who kidnaped, beat, raped, and murdered a 21-year-

old pregnant newlywed, Karol Hurst, also murdering her

unborn child, and then, on the same day, murdered a

sheriff ’s deputy acting in the line of duty. Hall v. Florida,

572 U. S. ___, ___ (2014) (slip op., at 1). And in Atkins

itself, the Court granted relief to a man who carjacked

Eric Michael Nesbitt, forced him to withdraw money from

a bank, drove him to a secluded area, and then shot him

multiple times before leaving him to bleed to death. At-

kins v. Commonwealth, 257 Va. 160, 166–167, 510 S. E. 2d

445, 449–450 (1999).

The Court has also misinterpreted the Eighth Amend-

ment to grant relief in egregious cases involving rape. In

Kennedy v. Louisiana, 554 U. S. 407 (2008), the Court

granted relief to a man who had been sentenced to death

for raping his 8-year-old stepdaughter. The rape was so

violent that it “separated her cervix from the back of her

vagina, causing her rectum to protrude into the vaginal

structure,” and tore her “entire perineum . . . from the

posterior fourchette to the anus.” Id., at 414. The evi-

dence indicated that the petitioner spent at least an hour

and half attempting to destroy the evidence of his crime

before seeking emergency assistance, even as his step-

daughter bled profusely from her injuries. Id., at 415.

And in Coker v. Georgia, 433 U. S. 584 (1977) (plurality

opinion), the Court granted relief to a petitioner who had

escaped from prison, broken into the home of a young

married couple and their newborn, forced the wife to bind

her husband, gagged her husband with her underwear,

raped her (even after being told that she was recovering

from a recent childbirth), and then kidnaped her after

threatening her husband, Coker v. State, 234 Ga. 555,

556–557, 216 S. E. 2d 782, 786–787 (1975). In each case,

the Court crafted an Eighth Amendment right to be free

from execution for the crime of rape—whether it be of an

adult, Coker, 433 U. S., at 592, or a child, Kennedy, supra,

Cite as: 576 U. S. ____ (2015) 9

THOMAS, J., concurring

at 413.

The Court’s recent decision finding that the Eighth

Amendment prohibits the execution of those who commit-

ted their crimes as juveniles is no different. See Roper v.

Simmons, 543 U. S. 551 (2005). Although the Court had

rejected the claim less than two decades earlier, Stanford

v. Kentucky, 492 U. S. 361 (1989), it decided to revisit the

issue for a petitioner who had slain his victim because “he

wanted to murder someone” and believed he could “get

away with it” because he was a few months shy of his 18th

birthday. 543 U. S., at 556. His randomly chosen victim

was Shirley Crook, whom he and his friends kidnaped in

the middle of the night, bound with duct tape and electri-

cal wire, and threw off a bridge to drown in the river

below. Id., at 556–557. The State of Alabama’s brief in

that case warned the Court that its decision would free

from death row a number of killers who had been sen-

tenced for crimes committed as juveniles. Brief for State

of Alabama et al. as Amici Curiae in Roper v. Simmons, O.

T. 2014, No. 03–633. Mark Duke, for example, murdered

his father for refusing to loan him a truck, and his father’s

girlfriend and her two young daughters because he wanted

no witnesses to the crime. Id., at 4. He shot his father

and his father’s girlfriend pointblank in the face as they

pleaded for their lives. Id., at 5–6. He then tracked the

girls down in their hiding places and slit their throats,

leaving them alive for several minutes as they drowned in

their own blood. Id., at 6–7.

Whatever one’s views on the permissibility or wisdom of

the death penalty, I doubt anyone would disagree that

each of these crimes was egregious enough to merit the

severest condemnation that society has to offer. The only

constitutional problem with the fact that these criminals

were spared that condemnation, while others were not, is

10 GLOSSIP v. GROSS

THOMAS, J., concurring

that their amnesty came in the form of unfounded claims.

Arbitrariness has nothing to do with it.4 To the extent

that we are ill at ease with these disparate outcomes, it

seems to me that the best solution is for the Court to stop

making up Eighth Amendment claims in its ceaseless

quest to end the death penalty through undemocratic

means.

——————

4 JUSTICE BREYER appears to acknowledge that our decision holding

mandatory death penalty schemes unconstitutional, Woodson v. North

Carolina, 428 U. S. 280 (1976) (plurality opinion), may have introduced

the problem of arbitrary application. Post, at 14. I agree that Woodson

eliminated one reliable legislative response to concerns about arbitrari-

ness. Graham v. Collins, 506 U. S. 461, 486 (1993) (THOMAS, J., concur-

ring). Because that decision was also questionable on constitutional

grounds, id., at 486–488, I would be willing to revisit it in a future case.

Cite as: 576 U. S. ____ (2015) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 14–7955

_________________

RICHARD E. GLOSSIP, ET AL., PETITIONERS v.

KEVIN J. GROSS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 29, 2015]

JUSTICE BREYER, with whom JUSTICE GINSBURG joins,

dissenting.

For the reasons stated in JUSTICE SOTOMAYOR’s opinion,

I dissent from the Court’s holding. But rather than try to

patch up the death penalty’s legal wounds one at a time, I

would ask for full briefing on a more basic question:

whether the death penalty violates the Constitution.

The relevant legal standard is the standard set forth in

the Eighth Amendment. The Constitution there forbids

the “inflict[ion]” of “cruel and unusual punishments.”

Amdt. 8. The Court has recognized that a “claim that

punishment is excessive is judged not by the standards

that prevailed in 1685 when Lord Jeffreys presided over

the ‘Bloody Assizes’ or when the Bill of Rights was adopted,

but rather by those that currently prevail.” Atkins v.

Virginia, 536 U. S. 304, 311 (2002). Indeed, the Constitu­

tion prohibits various gruesome punishments that were

common in Blackstone’s day. See 4 W. Blackstone, Com­

mentaries on the Laws of England 369–370 (1769) (listing

mutilation and dismembering, among other punishments).

Nearly 40 years ago, this Court upheld the death pen­

alty under statutes that, in the Court’s view, contained

safeguards sufficient to ensure that the penalty would be

applied reliably and not arbitrarily. See Gregg v. Georgia,

428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell,

2 GLOSSIP v. GROSS

BREYER, J., dissenting

and Stevens, JJ.); Proffitt v. Florida, 428 U. S. 242, 247

(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);

Jurek v. Texas, 428 U. S. 262, 268 (1976) (joint opinion of

Stewart, Powell, and Stevens, JJ.); but cf. Woodson v.

North Carolina, 428 U. S. 280, 303 (1976) (plurality opin­

ion) (striking down mandatory death penalty); Roberts v.

Louisiana, 428 U. S. 325, 331 (1976) (plurality opinion)

(similar). The circumstances and the evidence of the

death penalty’s application have changed radically since

then. Given those changes, I believe that it is now time to

reopen the question.

In 1976, the Court thought that the constitutional in­

firmities in the death penalty could be healed; the Court in

effect delegated significant responsibility to the States to

develop procedures that would protect against those con­

stitutional problems. Almost 40 years of studies, surveys,

and experience strongly indicate, however, that this effort

has failed. Today’s administration of the death penalty

involves three fundamental constitutional defects: (1)

serious unreliability, (2) arbitrariness in application, and

(3) unconscionably long delays that undermine the death

penalty’s penological purpose. Perhaps as a result, (4)

most places within the United States have abandoned its

use.

I shall describe each of these considerations, emphasiz­

ing changes that have occurred during the past four dec­

ades. For it is those changes, taken together with my own

20 years of experience on this Court, that lead me to be­

lieve that the death penalty, in and of itself, now likely

constitutes a legally prohibited “cruel and unusual pun­

ishmen[t].” U. S. Const., Amdt. 8.

I

“Cruel”—Lack of Reliability

This Court has specified that the finality of death cre­

ates a “qualitative difference” between the death penalty

Cite as: 576 U. S. ____ (2015) 3

BREYER, J., dissenting

and other punishments (including life in prison). Wood-

son, 428 U. S., at 305 (plurality opinion). That “qualita­

tive difference” creates “a corresponding difference in the

need for reliability in the determination that death is the

appropriate punishment in a specific case.” Ibid. There is

increasing evidence, however, that the death penalty as

now applied lacks that requisite reliability. Cf. Kansas v.

Marsh, 548 U. S. 163, 207–211 (2006) (Souter, J., dis­

senting) (DNA exonerations constitute “a new body of

fact” when considering the constitutionality of capital

punishment).

For one thing, despite the difficulty of investigating the

circumstances surrounding an execution for a crime that

took place long ago, researchers have found convincing

evidence that, in the past three decades, innocent people

have been executed. See, e.g., Liebman, Fatal Injustice;

Carlos DeLuna’s Execution Shows That a Faster, Cheaper

Death Penalty is a Dangerous Idea, L. A. Times, June 1,

2012, p. A19 (describing results of a 4-year investigation,

later published as The Wrong Carlos: Anatomy of a

Wrongful Execution (2014), that led its authors to con­

clude that Carlos DeLuna, sentenced to death and executed

in 1989, six years after his arrest in Texas for stabbing

a single mother to death in a convenience store, was inno­

cent); Grann, Trial By Fire: Did Texas Execute An Inno­

cent Man? The New Yorker, Sept. 7, 2009, p. 42 (describ­

ing evidence that Cameron Todd Willingham was

convicted, and ultimately executed in 2004, for the appar­

ently motiveless murder of his three children as the result

of invalid scientific analysis of the scene of the house fire

that killed his children). See also, e.g., Press Release: Gov.

Ritter Grants Posthumous Pardon in Case Dating Back to

1930s, Jan. 7, 2011, p. 1 (Colorado Governor granted full

and unconditional posthumous pardon to Joe Arridy, a

man with an IQ of 46 who was executed in 1936, because,

according to the Governor, “an overwhelming body of

4 GLOSSIP v. GROSS

BREYER, J., dissenting

evidence indicates the 23-year-old Arridy was innocent,

including false and coerced confessions, the likelihood that

Arridy was not in Pueblo at the time of the killing, and an

admission of guilt by someone else”); R. Warden, Wilkie

Collins’s The Dead Alive: The Novel, the Case, and Wrong­

ful Convictions 157–158 (2005) (in 1987, Nebraska Gover­

nor Bob Kerrey pardoned William Jackson Marion, who

had been executed a century earlier for the murder of

John Cameron, a man who later turned up alive; the

alleged victim, Cameron, had gone to Mexico to avoid a

shotgun wedding).

For another, the evidence that the death penalty has

been wrongly imposed (whether or not it was carried out),

is striking. As of 2002, this Court used the word “disturb­

ing” to describe the number of instances in which individ­

uals had been sentenced to death but later exonerated. At

that time, there was evidence of approximately 60

exonerations in capital cases. Atkins, 536 U. S., at

320, n. 25; National Registry of Exonerations, online at

http://www.law.umich.edu/special/exoneration/Pages/about.

aspx (all Internet materials as visited June 25, 2015, and

available in Clerk of Court’s case file). (I use “exonera­

tion” to refer to relief from all legal consequences of a

capital conviction through a decision by a prosecutor, a

Governor or a court, after new evidence of the defendant’s

innocence was discovered.) Since 2002, the number of

exonerations in capital cases has risen to 115. Ibid.; Na­

tional Registry of Exonerations, Exonerations in the United

States, 1989–2012, pp. 6–7 (2012) (Exonerations 2012

Report) (defining exoneration); accord, Death Penalty

Information Center (DPIC), Innocence: List of Those Freed

from Death Row, online at http://www.deathpenaltyinfo.

org/innocence-and-death-penalty (DPIC Innocence List)

(calculating, under a slightly different definition of exon­

eration, the number of exonerations since 1973 as 154).

Last year, in 2014, six death row inmates were exonerated

Cite as: 576 U. S. ____ (2015) 5

BREYER, J., dissenting

based on actual innocence. All had been imprisoned for

more than 30 years (and one for almost 40 years) at the

time of their exonerations. National Registry of Exonera­

tions, Exonerations in 2014, p. 2 (2015).

The stories of three of the men exonerated within the

last year are illustrative. DNA evidence showed that

Henry Lee McCollum did not commit the rape and murder

for which he had been sentenced to death. Katz & Eck­

holm, DNA Evidence Clears Two Men in 1983 Murder,

N. Y. Times, Sept. 3, 2014, p. A1. Last Term, this Court

ordered that Anthony Ray Hinton, who had been convicted

of murder, receive further hearings in state court; he was

exonerated earlier this year because the forensic evidence

used against him was flawed. Hinton v. Alabama, 571

U. S. ___ (2014) (per curiam); Blinder, Alabama Man on

Death Row for Three Decades Is Freed as State’s Case

Erodes, N. Y. Times, Apr. 4, 2014, p. A11. And when

Glenn Ford, also convicted of murder, was exonerated, the

prosecutor admitted that even “[a]t the time this case was

tried there was evidence that would have cleared Glenn

Ford.” Stroud, Lead Prosecutor Apologizes for Role in

Sending Man to Death Row, Shreveport Times, Mar. 27,

2015. All three of these men spent 30 years on death row

before being exonerated. I return to these examples infra.

Furthermore, exonerations occur far more frequently

where capital convictions, rather than ordinary criminal

convictions, are at issue. Researchers have calculated that

courts (or State Governors) are 130 times more likely to

exonerate a defendant where a death sentence is at issue.

They are nine times more likely to exonerate where a

capital murder, rather than a noncapital murder, is at

issue. Exonerations 2012 Report 15–16, and nn. 24–26.

Why is that so? To some degree, it must be because the

law that governs capital cases is more complex. To some

degree, it must reflect the fact that courts scrutinize capi­

tal cases more closely. But, to some degree, it likely also

6 GLOSSIP v. GROSS

BREYER, J., dissenting

reflects a greater likelihood of an initial wrongful convic­

tion. How could that be so? In the view of researchers

who have conducted these studies, it could be so because

the crimes at issue in capital cases are typically horren­

dous murders, and thus accompanied by intense community

pressure on police, prosecutors, and jurors to secure a

conviction. This pressure creates a greater likelihood of

convicting the wrong person. See Gross, Jacoby, Mathe-

son, Montgomery, & Patil, Exonerations in the United

States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531–

533 (2005); Gross & O’Brien, Frequency and Predictors of

False Conviction: Why We Know So Little, and New Data

on Capital Cases, 5 J. Empirical L. Studies 927, 956–957

(2008) (noting that, in comparing those who were exoner­

ated from death row to other capital defendants who were

not so exonerated, the initial police investigations tended

to be shorter for those exonerated); see also B. Garrett,

Convicting the Innocent: Where Criminal Prosecutions Go

Wrong (2011) (discussing other common causes of wrong­

ful convictions generally including false confessions, mis­

taken eyewitness testimony, untruthful jailhouse inform­

ants, and ineffective defense counsel).

In the case of Cameron Todd Willingham, for example,

who (as noted earlier) was executed despite likely inno­

cence, the State Bar of Texas recently filed formal miscon­

duct charges against the lead prosecutor for his actions—

actions that may have contributed to Willingham’s convic­

tion. Possley, Prosecutor Accused of Misconduct in Death

Penalty Case, Washington Post, Mar. 19, 2015, p. A3. And

in Glenn Ford’s case, the prosecutor admitted that he was

partly responsible for Ford’s wrongful conviction, issuing a

public apology to Ford and explaining that, at the time of

Ford’s conviction, he was “not as interested in justice as

[he] was in winning.” Stroud, supra.

Other factors may also play a role. One is the practice

of death-qualification; no one can serve on a capital jury

Cite as: 576 U. S. ____ (2015) 7

BREYER, J., dissenting

who is not willing to impose the death penalty. See

Rozelle, The Principled Executioner: Capital Juries’ Bias

and the Benefits of True Bifurcation, 38 Ariz. S. L. J. 769,

772–793, 807 (2006) (summarizing research and conclud­

ing that “[f]or over fifty years, empirical investigation has

demonstrated that death qualification skews juries toward

guilt and death”); Note, Mandatory Voir Dire Questions in

Capital Cases: A Potential Solution to the Biases of Death

Qualification, 10 Roger Williams Univ. L. Rev. 211, 214–

223 (2004) (similar).

Another is the more general problem of flawed forensic

testimony. See Garrett, supra, at 7. The Federal Bureau

of Investigation (FBI), for example, recently found that

flawed microscopic hair analysis was used in 33 of 35

capital cases under review; 9 of the 33 had already been

executed. FBI, National Press Releases, FBI Testimony

on Microscopic Hair Analysis Contained Errors in at Least

90 Percent of Cases in Ongoing Review, Apr. 20, 2015.

See also Hsu, FBI Admits Errors at Trials: False Matches

on Crime-Scene Hair, Washington Post, Apr. 19, 2015,

p. A1 (in the District of Columbia, which does not have the

death penalty, five of seven defendants in cases with

flawed hair analysis testimony were eventually exonerated).

In light of these and other factors, researchers estimate

that about 4% of those sentenced to death are actually

innocent. See Gross, O’Brien, Hu, & Kennedy, Rate of

False Conviction of Criminal Defendants Who Are Sen­

tenced to Death, 111 Proceeding of the National Academy

of Sciences 7230 (2014) (full-scale study of all death sen­

tences from 1973 through 2004 estimating that 4.1% of

those sentenced to death are actually innocent); Risinger,

Innocents Convicted: An Empirically Justified Factual

Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007)

(examination of DNA exonerations in death penalty cases

for murder-rapes between 1982 and 1989 suggesting an

analogous rate of between 3.3% and 5%).

8 GLOSSIP v. GROSS

BREYER, J., dissenting

Finally, if we expand our definition of “exoneration”

(which we limited to errors suggesting the defendant was

actually innocent) and thereby also categorize as “errone­

ous” instances in which courts failed to follow legally

required procedures, the numbers soar. Between 1973

and 1995, courts identified prejudicial errors in 68% of the

capital cases before them. Gelman, Liebman, West, &

Kiss, A Broken System: The Persistent Patterns of Rever­

sals of Death Sentences in the United States, 1 J. Empiri­

cal L. Studies 209, 217 (2004). State courts on direct and

postconviction review overturned 47% of the sentences

they reviewed. Id., at 232. Federal courts, reviewing

capital cases in habeas corpus proceedings, found error in

40% of those cases. Ibid.

This research and these figures are likely controversial.

Full briefing would allow us to scrutinize them with more

care. But, at a minimum, they suggest a serious problem

of reliability. They suggest that there are too many in­

stances 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. See Earley, A Pink Cadillac, An IQ of 63, and A

Fourteen-Year-Old from South Carolina: Why I Can No

Longer Support the Death Penalty, 49 U. Rich. L. Rev.

811, 813 (2015) (“I have come to the conclusion that the

death penalty is based on a false utopian premise. That

false premise is that we have had, do have, will have 100%

accuracy in death penalty convictions and executions”);

Earley, I Oversaw 36 Executions. 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). Unlike 40 years ago, we

Cite as: 576 U. S. ____ (2015) 9

BREYER, J., dissenting

now have plausible evidence of unreliability that (perhaps

due to DNA evidence) is stronger than the evidence we

had before. In sum, there is significantly more research-

based evidence today indicating that courts sentence to

death individuals who may well be actually innocent or

whose convictions (in the law’s view) do not warrant the

death penalty’s application.

II

“Cruel”—Arbitrariness

The arbitrary imposition of punishment is the antithesis

of the rule of law. For that reason, Justice Potter Stewart

(who supplied critical votes for the holdings in Furman v.

Georgia, 408 U. S. 238 (1972) (per curiam), and Gregg)

found the death penalty unconstitutional as administered

in 1972:

“These death sentences are cruel and unusual in the

same way that being struck by lightning is cruel and

unusual. For, of all the people convicted of [death­

eligible crimes], many just as reprehensible as these,

the[se] petitioners are among a capriciously selected

random handful upon which the sentence of death has

in fact been imposed.” Furman, 408 U. S., at 309–310

(concurring opinion).

See also id., at 310 (“[T]he Eighth and Fourteenth

Amendments cannot tolerate the infliction of a sentence of

death under legal systems that permit this unique penalty

to be so wantonly and so freakishly imposed”); id., at 313

(White, J., concurring) (“[T]he death penalty is exacted

with great infrequency even for the most atrocious crimes

and . . . there is no meaningful basis for distinguishing the

few cases in which it is imposed from the many cases in

which it is not”).

When the death penalty was reinstated in 1976, this

Court acknowledged that the death penalty is (and would

10 GLOSSIP v. GROSS

BREYER, J., dissenting

be) unconstitutional if “inflicted in an arbitrary and capri­

cious manner.” Gregg, 428 U. S., at 188 (joint opinion of

Stewart, Powell, and Stevens, JJ.); see also id., at 189

(“[W]here discretion is afforded a sentencing body on a

matter so grave as the determination of whether a human

life should be taken or spared, that discretion must be

suitably directed and limited so as to minimize the risk of

wholly arbitrary and capricious action”); Godfrey v. Geor­

gia, 446 U. S. 420, 428 (1980) (plurality opinion) (similar).

The Court has consequently sought to make the applica­

tion of the death penalty less arbitrary by restricting its

use to those whom Justice Souter called “ ‘the worst of the

worst.’ ” Kansas v. Marsh, 548 U. S., at 206 (dissenting

opinion); see also Roper v. Simmons, 543 U. S. 551, 568

(2005) (“Capital punishment must be limited to those

offenders who commit a narrow category of the most seri­

ous crimes and whose extreme culpability makes them the

most deserving of execution” (internal quotation marks

omitted)); Kennedy v. Louisiana, 554 U. S. 407, 420 (2008)

(citing Roper, supra, at 568).

Despite the Gregg Court’s hope for fair administration of

the death penalty, 40 years of further experience make it

increasingly clear that the death penalty is imposed arbi­

trarily, i.e., without the “reasonable consistency” legally

necessary to reconcile its use with the Constitution’s

commands. Eddings v. Oklahoma, 455 U. S. 104, 112

(1982).

Thorough studies of death penalty sentences support

this conclusion. A recent study, for example, examined all

death penalty sentences imposed between 1973 and 2007

in Connecticut, a State that abolished the death penalty in

2012. Donohue, An Empirical Evaluation of the Connecti­

cut Death Penalty System Since 1973: Are There Unlawful

Racial, Gender, and Geographic Disparities? 11 J. Empiri­

cal Legal Studies 637 (2014). The study reviewed treat­

ment of all homicide defendants. It found 205 instances in

Cite as: 576 U. S. ____ (2015) 11

BREYER, J., dissenting

which Connecticut law made the defendant eligible for a

death sentence. Id., at 641–643. Courts imposed a death

sentence in 12 of these 205 cases, of which 9 were sus­

tained on appeal. Id., at 641. The study then measured

the “egregiousness” of the murderer’s conduct in those 9

cases, developing a system of metrics designed to do so.

Id., at 643–645. It then compared the egregiousness of the

conduct of the 9 defendants sentenced to death with the

egregiousness of the conduct of defendants in the remain­

ing 196 cases (those in which the defendant, though found

guilty of a death-eligible offense, was ultimately not sen­

tenced to death). Application of the studies’ metrics made

clear that only 1 of those 9 defendants was indeed the

“worst of the worst” (or was, at least, within the 15%

considered most “egregious”). The remaining eight were

not. Their behavior was no worse than the behavior of at

least 33 and as many as 170 other defendants (out of a

total pool of 205) who had not been sentenced to death.

Id., at 678–679.

Such studies indicate that the factors that most clearly

ought to affect application of the death penalty—namely,

comparative egregiousness of the crime—often do not.

Other studies show that circumstances that ought not to

affect application of the death penalty, such as race, gen­

der, or geography, often do.

Numerous studies, for example, have concluded that

individuals accused of murdering white victims, as op­

posed to black or other minority victims, are more likely to

receive the death penalty. See GAO, Report to the Senate

and House Committees on the Judiciary: Death Penalty

Sentencing 5 (GAO/GGD–90–57, 1990) (82% of the 28

studies conducted between 1972 and 1990 found that race

of victim influences capital murder charge or death sen­

tence, a “finding . . . remarkably consistent across data

sets, states, data collection methods, and analytic tech­

niques”); Shatz & Dalton, Challenging the Death Penalty

12 GLOSSIP v. GROSS

BREYER, J., dissenting

with Statistics: Furman, McCleskey, and a Single County

Case Study, 34 Cardozo L. Rev. 1227, 1245–1251 (2013)

(same conclusion drawn from 20 plus studies conducted

between 1990 and 2013).

Fewer, but still many, studies have found that the gen­

der of the defendant or the gender of the victim makes a

not-otherwise-warranted difference. Id., at 1251–1253

(citing many studies).

Geography also plays an important role in determining

who is sentenced to death. See id., at 1253–1256. And

that is not simply because some States permit the death

penalty while others do not. Rather within a death pen­

alty State, the imposition of the death penalty heavily de-

pends on the county in which a defendant is tried. Smith,

The Geography of the Death Penalty and its Ramifica­

tions, 92 B. U. L. Rev. 227, 231–232 (2012) (hereinafter

Smith); see also Donohue, supra, at 673 (“[T]he single

most important influence from 1973–2007 explaining

whether a death-eligible defendant [in Connecticut] would

be sentenced to death was whether the crime occurred in

Waterbury [County]”). Between 2004 and 2009, for exam­

ple, just 29 counties (fewer than 1% of counties in the

country) accounted for approximately half of all death

sentences imposed nationwide. Smith 233. And in 2012,

just 59 counties (fewer than 2% of counties in the country)

accounted for all death sentences imposed nationwide.

DPIC, The 2% Death Penalty: How A Minority of Counties

Produce Most Death Cases At Enormous Costs to All 9

(Oct. 2013).

What accounts for this county-by-county disparity?

Some studies indicate that the disparity reflects the deci­

sionmaking authority, the legal discretion, and ultimately

the power of the local prosecutor. See, e.g., Goelzhauser,

Prosecutorial Discretion Under Resource Constraints:

Budget Allocations and Local Death-Charging Decisions,

96 Judicature 161, 162–163 (2013); Barnes, Sloss, &

Cite as: 576 U. S. ____ (2015) 13

BREYER, J., dissenting

Thaman, Place Matters (Most): An Empirical Study of

Prosecutorial Decision-Making in Death-Eligible Cases, 51

Ariz. L. Rev. 305 (2009) (analyzing Missouri); Donohue,

An Empirical Evaluation of the Connecticut Death Pen-

alty System, at 681 (Connecticut); Marceau, Kamin, &

Foglia, Death Eligibility in Colorado: Many Are Called,

Few Are Chosen, 84 U. Colo. L. Rev. 1069 (2013) (Colo-

rado); Shatz & Dalton, supra, at 1260–1261 (Alameda

County).

Others suggest that the availability of resources for

defense counsel (or the lack thereof) helps explain geo­

graphical differences. See, e.g., Smith 258–265 (counties

with higher death-sentencing rates tend to have weaker

public defense programs); Liebman & Clarke, Minority

Practice, Majority’s Burden: The Death Penalty Today, 9

Ohio S. J. Crim. L. 255, 274 (2011) (hereinafter Liebman

& Clarke) (similar); see generally Bright, Counsel for the

Poor: The Death Sentence Not for the Worst Crime but for

the Worst Lawyer, 103 Yale L. J. 1835 (1994).

Still others indicate that the racial composition of and

distribution within a county plays an important role. 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.

513, 533–536 (2014) (summarizing research on this point);

see also Shatz & Dalton, supra, at 1275 (describing re­

search finding that death-sentencing rates were lowest in

counties with the highest nonwhite population); cf. Cohen

& Smith, The Racial Geography of the Federal Death

Penalty, 85 Wash. L. Rev. 425 (2010) (arguing that the

federal death penalty is sought disproportionately where

the federal district, from which the jury will be drawn, has

a dramatic racial difference from the county in which the

federal crime occurred).

Finally, some studies suggest that political pressures,

including pressures on judges who must stand for election,

14 GLOSSIP v. GROSS

BREYER, J., dissenting

can make a difference. See Woodward v. Alabama, 571

U. S. ___, ___ (2013) (SOTOMAYOR, J., dissenting from

denial of certiorari) (slip op., at 7) (noting that empirical

evidence suggests that, when Alabama judges reverse jury

recommendations, these “judges, who are elected in parti­

san proceedings, appear to have succumbed to electoral

pressures”); Harris v. Alabama, 513 U. S. 504, 519 (1995)

(Stevens, J., dissenting) (similar); Gelman, 1 J. Empirical

L. Studies, at 247 (elected state judges are less likely to

reverse flawed verdicts in capital cases in small towns

than in larger communities).

Thus, whether one looks at research indicating that

irrelevant or improper factors—such as race, gender, local

geography, and resources—do significantly determine who

receives the death penalty, or whether one looks at re­

search indicating that proper factors—such as “egregious­

ness”—do not determine who receives the death penalty,

the legal conclusion must be the same: The research

strongly suggests that the death penalty is imposed

arbitrarily.

JUSTICE THOMAS catalogues the tragic details of various

capital cases, ante, at 6–10 (concurring opinion), but this

misses my point. 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. And this extensive

body of evidence suggests that it is not so limited.

Four decades ago, the Court believed it possible to in­

terpret the Eighth Amendment in ways that would signifi­

cantly limit the arbitrary application of the death sen­

tence. See Gregg, 428 U. S., at 195 (joint opinion of

Stewart, Powell, and Stevens, JJ.) (“[T]he concerns ex­

pressed in Furman that the penalty of death not be im­

posed in an arbitrary or capricious manner can be met”).

But that no longer seems likely.

Cite as: 576 U. S. ____ (2015) 15

BREYER, J., dissenting

The Constitution does not prohibit the use of prosecuto­

rial discretion. Id., at 199, and n. 50 (joint opinion of

Stewart, Powell, and Stevens, JJ.); McCleskey v. Kemp,

481 U. S. 279, 307–308, and n. 28, 311–312 (1987). It has

not proved possible to increase capital defense funding

significantly. Smith, The Supreme Court and the Politics

of Death, 94 Va. L. Rev. 283, 355 (2008) (“Capital defend­

ers are notoriously underfunded, particularly in states . . .

that lead the nation in executions”); American Bar Assn.

(ABA) Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases, Guideline 9.1,

Commentary (rev. ed. Feb. 2003), in 31 Hofstra L. Rev.

913, 985 (2003) (“[C]ompensation of attorneys for death

penalty representation remains notoriously inadequate”).

And courts cannot easily inquire into judicial motivation.

See, e.g., Harris, supra.

Moreover, racial and gender biases may, unfortunately,

reflect deeply rooted community biases (conscious or un­

conscious), which, despite their legal irrelevance, may

affect a jury’s evaluation of mitigating evidence, see

Callins v. Collins, 510 U. S. 1141, 1153 (1994) (Blackmun,

J., dissenting from denial of certiorari) (“Perhaps it should

not be surprising that the biases and prejudices that infect

society generally would influence the determination of

who is sentenced to death”). Nevertheless, it remains the

jury’s task to make the individualized assessment of

whether the defendant’s mitigation evidence entitles him

to mercy. See, e.g., Penry v. Lynaugh, 492 U. S. 302, 319

(1989); Lockett v. Ohio, 438 U. S. 586, 604–605 (1978)

(opinion of Burger, C. J.); Woodson, 428 U. S., at 304–305

(plurality opinion).

Finally, since this Court held that comparative propor­

tionality review is not constitutionally required, Pulley v.

Harris, 465 U. S. 37 (1984), it seems unlikely that appeals

can prevent the arbitrariness I have described. See

Kaufman-Osborn, Capital Punishment, Proportionality

16 GLOSSIP v. GROSS

BREYER, J., dissenting

Review, and Claims of Fairness (with Lessons from Wash­

ington State), 79 Wash. L. Rev. 775, 791–792 (2004) (after

Pulley, many States repealed their statutes requiring

comparative proportionality review, and most state high

courts “reduced proportionality review to a perfunctory

exercise” (internal quotation marks omitted)).

The studies bear out my own view, reached after consid­

ering thousands of death penalty cases and last-minute

petitions over the course of more than 20 years. I see

discrepancies for which I can find no rational explana­

tions. Cf. Godfrey, 446 U. S., at 433 (plurality opinion)

(“There is no principled way to distinguish this case, in

which the death penalty was imposed, from the many

cases in which it was not”). Why does one defendant who

committed a single-victim murder receive the death pen­

alty (due to aggravators of a prior felony conviction and an

after-the-fact robbery), while another defendant does not,

despite having kidnapped, raped, and murdered a young

mother while leaving her infant baby to die at the scene of

the crime. Compare State v. Badgett, 361 N. C. 234, 644

S. E. 2d 206 (2007), and Pet. for Cert. in Badgett v. North

Carolina, O. T. 2006, No. 07–6156, with Charbonneau,

Andre Edwards Sentenced to Life in Prison for 2001 Mur­

der, WRAL, Mar. 26, 2004, online at http://www.wral.

com/news/local/story/109648. Why does one defendant who

committed a single-victim murder receive the death pen­

alty (due to aggravators of a prior felony conviction and

acting recklessly with a gun), while another defendant

does not, despite having committed a “triple murder” by

killing a young man and his pregnant wife? Compare

Commonwealth v. Boxley, 596 Pa. 620, 948 A. 2d 742

(2008), and Pet. for Cert., O. T. 2008, No. 08–6172, with

Shea, Judge Gives Consecutive Life Sentences for Triple

Murder, Philadelphia Inquirer, June 29, 2004, p. B5. For

that matter, why does one defendant who participated in a

single-victim murder-for-hire scheme (plus an after-the­

Cite as: 576 U. S. ____ (2015) 17

BREYER, J., dissenting

fact robbery) receive the death penalty, while another

defendant does not, despite having stabbed his wife 60

times and killed his 6-year-old daughter and 3-year-old

son while they slept? See Donohue, Capital Punishment

in Connecticut, 1973–2007: A Comprehensive Evaluation

from 4686 Murders to One Execution, pp. 128–134 (2013),

online at http://works.bepress.com/john_donohue/87. In

each instance, the sentences compared were imposed in

the same State at about the same time.

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 Stew­

art, Justice Powell, and others raised over the course of

several decades: The imposition and implementation of the

death penalty seems capricious, random, indeed, arbi­

trary. From a defendant’s perspective, to receive that

sentence, and certainly to find it implemented, is the

equivalent of being struck by lightning. How then can we

reconcile the death penalty with the demands of a Consti­

tution that first and foremost insists upon a rule of law?

III

“Cruel”—Excessive Delays

The problems of reliability and unfairness almost inevi­

tably lead to a third independent constitutional problem:

excessively long periods of time that individuals typically

spend on death row, alive but under sentence of death.

That is to say, delay is in part a problem that the Consti­

tution’s own demands create. Given the special need for

reliability and fairness in death penalty cases, the Eighth

Amendment does, and must, apply to the death penalty

“with special force.” Roper, 543 U. S., at 568. Those who

face “that most severe sanction must have a fair oppor­

tunity to show that the Constitution prohibits their execu­

tion.” Hall v. Florida, 572 U. S. ___, ___ (2014) (slip op., at

22). At the same time, the Constitution insists that “every

18 GLOSSIP v. GROSS

BREYER, J., dissenting

safeguard” be “observed” when “a defendant’s life is at

stake.” Gregg, 428 U. S., at 187 (joint opinion of Stewart,

Powell, and Stevens, JJ.); Furman, 408 U. S., at 306

(Stewart, J., concurring) (death “differs from all other

forms of criminal punishment, not in degree but in kind”);

Woodson, supra, at 305 (plurality opinion) (“Death, in its

finality, differs more from life imprisonment than a 100­

year prison term differs from one of only a year or two”).

These procedural necessities take time to implement.

And, unless we abandon the procedural requirements that

assure fairness and reliability, we are forced to confront

the problem of increasingly lengthy delays in capital cases.

Ultimately, though these legal causes may help to explain,

they do not mitigate the harms caused by delay itself.

A

Consider first the statistics. In 2014, 35 individuals

were executed. Those executions occurred, on average,

nearly 18 years after a court initially pronounced its

sentence of death. DPIC, Execution List 2014, online

at http: / / www.deathpenaltyinfo.org / execution - list-2014

(showing an average delay of 17 years, 7 months). In some

death penalty States, the average delay is longer. In

an oral argument last year, for example, the State admit­

ted that the last 10 prisoners executed in Florida had

spent an average of nearly 25 years on death row before

execution. Tr. of Oral Arg. in Hall v. Florida, O. T. 2013,

No. 12–10882, p. 46.

The length of the average delay has increased dramati­

cally over the years. In 1960, the average delay between

sentencing and execution was two years. See Aarons, Can

Inordinate Delay Between a Death Sentence and Execu­

tion Constitute Cruel and Unusual Punishment? 29 Seton

Hall L. Rev. 147, 181 (1998). Ten years ago (in 2004) the

average delay was about 11 years. See Dept. of Justice,

Bureau of Justice Statistics (BJS), T. Snell, Capital Pun­

Cite as: 576 U. S. ____ (2015) 19

BREYER, J., dissenting

ishment, 2013—Statistical Tables 14 (Table 10) (rev. Dec.

2014) (hereinafter BJS 2013 Stats). By last year the

average had risen to about 18 years. DPIC, Execution List

2014, supra. Nearly half of the 3,000 inmates now on

death row have been there for more than 15 years. And,

at present execution rates, it would take more than 75

years to carry out those 3,000 death sentences; thus, the

average person on death row would spend an additional

37.5 years there before being executed. BJS 2013 Stats, at

14, 18 (Tables 11 and 15).

I cannot find any reasons to believe the trend will soon

be reversed.

B

These lengthy delays create two special constitutional

difficulties. See Johnson v. Bredesen, 558 U. S. 1067, 1069

(2009) (Stevens, J., statement respecting denial of certio­

rari). First, a lengthy delay in and of itself is especially

cruel because it “subjects death row inmates to decades of

especially severe, dehumanizing conditions of confine­

ment.” Ibid.; Gomez v. Fierro, 519 U. S. 918 (1996) (Ste­

vens, J., dissenting) (excessive delays from sentencing to

execution can themselves “constitute cruel and unusual

punishment prohibited by the Eighth Amendment”); see

also Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum

of Stevens, J., respecting denial of certiorari); Knight v.

Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting

from denial of certiorari). Second, lengthy delay under­

mines the death penalty’s penological rationale. Johnson,

supra, at 1069; Thompson v. McNeil, 556 U. S. 1114,

1115 (2009) (statement of Stevens, J., respecting denial of

certiorari).

1

Turning to the first constitutional difficulty, nearly all

death penalty States keep death row inmates in isolation

20 GLOSSIP v. GROSS

BREYER, J., dissenting

for 22 or more hours per day. American Civil Liberties

Union (ACLU), A Death Before Dying: Solitary Confine­

ment on Death Row 5 (July 2013) (ACLU Report). This

occurs even though the ABA has suggested that death row

inmates be housed in conditions similar to the general

population, and the United Nations Special Rapporteur on

Torture has called for a global ban on solitary confinement

longer than 15 days. See id., at 2, 4; ABA Standards for

Criminal Justice: Treatment of Prisoners 6 (3d ed. 2011).

And it is well documented that such prolonged solitary

confinement produces numerous deleterious harms. See,

e.g., Haney, Mental Health Issues in Long-Term Solitary

and “Supermax” Confinement, 49 Crime & Delinquency

124, 130 (2003) (cataloguing studies finding that solitary

confinement can cause prisoners to experience “anxiety,

panic, rage, loss of control, paranoia, hallucinations, and

self-mutilations,” among many other symptoms); Grassian,

Psychiatric Effects of Solitary Confinement, 22 Wash

U. J. L. & Policy 325, 331 (2006) (“[E]ven a few days of

solitary confinement will predictably shift the [brain’s]

electroencephalogram (EEG) pattern toward an abnormal

pattern characteristic of stupor and delirium”); accord, In

re Medley, 134 U. S. 160, 167–168 (1890); see also Davis v.

Ayala, ante, at 1–4 (KENNEDY, J., concurring).

The dehumanizing effect of solitary confinement is

aggravated by uncertainty as to whether a death sentence

will in fact be carried out. In 1890, this Court recognized

that, “when a prisoner sentenced by a court to death is

confined in the penitentiary awaiting the execution of the

sentence, one of the most horrible feelings to which he can

be subjected during that time is the uncertainty during

the whole of it.” Medley, supra, at 172. The Court was

there describing a delay of a mere four weeks. In the past

century and a quarter, little has changed in this respect—

except for duration. Today we must describe delays meas­

ured, not in weeks, but in decades. Supra, at 18–19.

Cite as: 576 U. S. ____ (2015) 21

BREYER, J., dissenting

Moreover, we must consider death warrants that have

been issued and revoked, not once, but repeatedly. See,

e.g., Pet. for Cert. in Suárez Medina v. Texas, O. T. 2001,

No. 02–5752, pp. 35–36 (filed Aug. 13, 2002) (“On fourteen

separate occasions since Mr. Suárez Medina’s death sen­

tence was imposed, he has been informed of the time, date,

and manner of his death. At least eleven times, he

has been asked to describe the disposal of his bodily

remains”); Lithwick, Cruel but not Unusual, Slate,

Apr. 1, 2011, online at http://www.slate.com/articles/

news_and_politics/jurisprudence/2011/04/cruel_but_not_

unusual.html (John Thompson had seven death warrants

signed before he was exonerated); see also, e.g., WFMZ-TV

69 News, Michael John Parrish’s Execution Warrant

Signed by Governor Corbett (Aug. 18, 2014), online at

http: / / www.wfmz.com /news/Regional-Poconos-Coal / Local/

michael-john-parrishs-execution-warrant-signed-by-governor-

corbett/27595356 (former Pennsylvania Governor signed

36 death warrants in his first 3.5 years in office even

though Pennsylvania has not carried out an execution

since 1999).

Several inmates have come within hours or days of

execution before later being exonerated. Willie Manning

was four hours from his scheduled execution before the

Mississippi Supreme Court stayed the execution. See

Robertson, With Hours to Go, Execution is Postponed,

N. Y. Times, Apr. 8, 2015, p. A17. Two years later, Man­

ning was exonerated after the evidence against him, in­

cluding flawed testimony from an FBI hair examiner, was

severely undermined. Nave, Why Does the State Still

Want to Kill Willie Jerome Manning? Jackson Free Press,

Apr. 29, 2015. Nor is Manning an outlier case. See, e.g.,

Martin, Randall Adams, 61, Dies; Freed With Help of

Film, N. Y. Times, June 26, 2011, p. 24 (Randall Adams:

stayed by this Court three days before execution; later

exonerated); N. Davies, White Lies 231, 292, 298, 399

22 GLOSSIP v. GROSS

BREYER, J., dissenting

(1991) (Clarence Lee Brandley: execution stayed twice,

once 6 days and once 10 days before; later exonerated); M.

Edds, An Expendable Man 93 (2003) (Earl Washington,

Jr.: stayed 9 days before execution; later exonerated).

Furthermore, given the negative effects of confinement

and uncertainty, it is not surprising that many inmates

volunteer to be executed, abandoning further appeals.

See, e.g., ACLU Report 8; Rountree, Volunteers for Execu­

tion: Directions for Further Research into Grief, Culpabil­

ity, and Legal Structures, 82 UMKC L. Rev. 295 (2014)

(11% of those executed have dropped appeals and volun­

teered); ACLU Report 3 (account of “ ‘guys who dropped

their appeals because of the intolerable conditions’ ”).

Indeed, one death row inmate, who was later exonerated,

still said he would have preferred to die rather than to

spend years on death row pursuing his exoneration.

Strafer, Volunteering for Execution: Competency, Volun­

tariness and the Propriety of Third Party Intervention, 74

J. Crim. L. & C. 860, 869 (1983). Nor is it surprising that

many inmates consider, or commit, suicide. Id., at 872, n.

44 (35% of those confined on death row in Florida at­

tempted suicide).

Others have written at great length about the constitu­

tional problems that delays create, and, rather than re­

peat their facts, arguments, and conclusions, I simply

refer to some of their writings. See, e.g., Johnson, 558

U. S., at 1069 (statement of Stevens, J.) (delay “subjects

death row inmates to decades of especially severe, dehu­

manizing conditions of confinement”); Furman, 408 U. S.,

at 288 (Brennan, J., concurring) (“long wait between the

imposition of sentence and the actual infliction of death” is

“inevitable” and often “exacts a frightful toll”); Solesbee v.

Balkcom, 339 U. S. 9, 14 (1950) (Frankfurter, J., dissent­

ing) (“In the history of murder, the onset of insanity while

awaiting execution of a death sentence is not a rare phe­

nomenon”); People v. Anderson, 6 Cal. 3d 628, 649, 493 P.

Cite as: 576 U. S. ____ (2015) 23

BREYER, J., dissenting

2d 880, 894 (1972) (collecting sources) (“[C]ruelty of capital

punishment lies not only in the execution itself and the

pain incident thereto, but also in the dehumanizing effects

of the lengthy imprisonment prior to execution during

which the judicial and administrative procedures essential

to due process of law are carried out” (footnote omitted));

District Attorney for Suffolk Dist. v. Watson, 381 Mass.

648, 673, 411 N. E. 2d 1274, 1287 (1980) (Braucher, J.,

concurring) (death penalty unconstitutional under State

Constitution in part because “[it] will be carried out only

after agonizing months and years of uncertainty”); see also

Riley v. Attorney General of Jamaica, [1983] 1 A. C. 719,

734–735 (P. C. 1982) (Lord Scarman, joined by Lord

Brightman, dissenting) (“execution after inordinate delay”

would infringe prohibition against “cruel and unusual

punishments” in §10 of the “Bill of Rights of 1689,” the

precursor to our Eighth Amendment); Pratt v. Attorney

Gen. of Jamaica, [1994] 2 A. C. 1, 4 (P. C. 1993); id., at 32–

33 (collecting cases finding inordinate delays unconstitu­

tional or the equivalent); State v. Makwanyane 1995 (3)

SA391 (CC) (S. Afr.); Catholic Commission for Justice &

Peace in Zimbabwe v. Attorney-General, [1993] 1 Zim.

L. R. 242, 282 (inordinate delays unconstitutional); Soer­

ing v. United Kingdom, 11 Eur. Ct. H. R. (ser. A), p. 439

(1989) (extradition of murder suspect to United States

would violate the European Convention on Human Rights

in light of risk of delay before execution); United States v.

Burns, [2001] 1 S. C. R. 283, 353, ¶123 (similar).

2

The second constitutional difficulty resulting from

lengthy delays is that those delays undermine the death

penalty’s penological rationale, perhaps irreparably so.

The rationale for capital punishment, as for any punish­

ment, classically rests upon society’s need to secure deter­

rence, incapacitation, retribution, or rehabilitation. Capi­

24 GLOSSIP v. GROSS

BREYER, J., dissenting

tal punishment by definition does not rehabilitate. It

does, of course, incapacitate the offender. But the major

alternative to capital punishment—namely, life in prison

without possibility of parole—also incapacitates. See Ring

v. Arizona, 536 U. S. 584, 615 (2002) (BREYER, J., concur­

ring in judgment).

Thus, as the Court has recognized, the death penalty’s

penological rationale in fact rests almost exclusively upon

a belief in its tendency to deter and upon its ability to

satisfy a community’s interest in retribution. See, e.g.,

Gregg, 428 U. S., at 183 (joint opinion of Stewart, Powell,

and Stevens, JJ.). 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. Compare ante, at 5 (SCALIA, J., concurring) (collect­

ing studies finding deterrent effect), with e.g., Sorensen,

Wrinkle, Brewer, & Marquart, Capital Punishment and

Deterrence: Examining the Effect of Executions on Murder

in Texas, 45 Crime & Delinquency 481 (1999) (no evidence

of a deterrent effect); Bonner & Fessenden, Absence of

Executions: A Special Report, States With No Death Pen­

alty Share Lower Homicide Rates, N. Y. Times, Sept. 22,

2000, p. A1 (from 1980–2000, homicide rate in death-

penalty States was 48% to 101% higher than in non-death­

penalty States); Radelet & Akers, Deterrence and the

Death Penalty: The Views of the Experts, 87 J. Crim. L. &

C. 1, 8 (1996) (over 80% of criminologists believe existing

research fails to support deterrence justification); Donohue

& Wolfers, Uses and Abuses of Empirical Evidence in the

Death Penalty Debate, 58 Stan. L. Rev. 791, 794 (2005)

(evaluating existing statistical evidence and concluding

that there is “profound uncertainty” about the existence of

a deterrent effect).

Recently, the National Research Council (whose mem­

bers are drawn from the councils of the National Academy

of Sciences, the National Academy of Engineering, and the

Cite as: 576 U. S. ____ (2015) 25

BREYER, J., dissenting

Institute of Medicine) reviewed 30 years of empirical

evidence and concluded that it was insufficient to estab­

lish a deterrent effect and thus should “not be used to

inform” discussion about the deterrent value of the death

penalty. National Research Council, Deterrence and the

Death Penalty 2 (D. Nagin & J. Pepper eds. 2012); accord,

Baze v. Rees, 553 U. S. 35, 79 (2008) (Stevens, J., concur­

ring in judgment) (“Despite 30 years of empirical re-

search in the area, there remains no reliable statistical evi­

dence that capital punishment in fact deters potential

offenders”).

I recognize that a “lack of evidence” for a proposition

does not prove the contrary. See Ring, supra, at 615 (one

might believe the studies “inconclusive”). But suppose

that we add to these studies the fact that, today, very few

of those sentenced to death are actually executed, and that

even those executions occur, on average, after nearly two

decades on death row. DPIC, Execution List 2014, supra.

Then, does it still seem likely that the death penalty has a

significant deterrent effect?

Consider, for example, what actually happened to the

183 inmates sentenced to death in 1978. As of 2013 (35

years later), 38 (or 21% of them) had been executed; 132

(or 72%) had had their convictions or sentences overturned

or commuted; and 7 (or 4%) had died of other (likely natu­

ral) causes. Six (or 3%) remained on death row. BJS 2013

Stats, at 19 (Table 16).

The example illustrates a general trend. Of the 8,466

inmates under a death sentence at some point between

1973 and 2013, 16% were executed, 42% had their convic­

tions or sentences overturned or commuted, and 6% died

by other causes; the remainder (35%) are still on death

row. Id., at 20 (Table 17); see also Baumgartner & Die­

trich, Most Death Penalty Sentences Are Overturned:

Here’s Why That Matters, Washington Post Blog, Monkey

Cage, Mar. 17, 2015 (similar).

26 GLOSSIP v. GROSS

BREYER, J., dissenting

Thus an offender who is sentenced to death is two or

three times more likely to find his sentence overturned or

commuted than to be executed; and he has a good chance

of dying from natural causes before any execution (or

exoneration) can take place. In a word, executions are

rare. And an individual contemplating a crime but evalu­

ating the potential punishment would know that, in any

event, he faces a potential sentence of life without parole.

These facts, when recurring, must have some offsetting

effect on a potential perpetrator’s fear of a death penalty.

And, even if that effect is no more than slight, it makes it

difficult to believe (given the studies of deterrence cited

earlier) that such a rare event significantly deters horren­

dous crimes. See Furman, 408 U. S., at 311–312 (White,

J., concurring) (It cannot “be said with confidence that

society’s need for specific deterrence justifies death for so

few when for so many in like circumstances life imprison­

ment or shorter prison terms are judged sufficient”).

But what about retribution? Retribution is a valid

penological goal. I recognize that surviving relatives of

victims of a horrendous crime, or perhaps the community

itself, may find vindication in an execution. And a com­

munity that favors the death penalty has an understand-

able interest in representing their voices. But see A. Sarat,

Mercy on Trial: What It Means To Stop an Execution 130

(2005) (Illinois Governor George Ryan explained his deci­

sion to commute all death sentences on the ground that it

was “cruel and unusual” for “family members to go

through this . . . legal limbo for [20] years”).

The relevant question here, however, is whether a

“community’s sense of retribution” can often find vindica­

tion in “a death that comes,” if at all, “only several decades

after the crime was committed.” Valle v. Florida, 564

U. S. ___, ___ (2011) (BREYER, J., dissenting from denial of

stay) (slip op., at 3). By then the community is a different

group of people. The offenders and the victims’ families

Cite as: 576 U. S. ____ (2015) 27

BREYER, J., dissenting

have grown far older. Feelings of outrage may have sub­

sided. The offender may have found himself a changed

human being. And sometimes repentance and even for­

giveness can restore meaning to lives once ruined. At the

same time, the community and victims’ families will know

that, even without a further death, the offender will serve

decades in prison under a sentence of life without parole.

I recognize, of course, that this may not always be the

case, and that sometimes the community believes that an

execution could provide closure. Nevertheless, the delays

and low probability of execution must play some role in

any calculation that leads a community to insist on death

as retribution. As I have already suggested, they may well

attenuate the community’s interest in retribution to the

point where it cannot by itself amount to a significant

justification for the death penalty. Id., at ___ (slip op., at

3). In any event, I believe that whatever interest in retri­

bution might be served by the death penalty as currently

administered, that interest can be served almost as well

by a sentence of life in prison without parole (a sentence

that every State now permits, see ACLU, A Living Death:

Life Without Parole for Nonviolent Offenses 11, and n. 10

(2013)).

Finally, the fact of lengthy delays undermines any effort

to justify the death penalty in terms of its prevalence

when the Founders wrote the Eighth Amendment. When

the Founders wrote the Constitution, there were no 20- or

30-year delays. Execution took place soon after sentenc­

ing. See P. Mackey, Hanging in the Balance: The Anti-

Capital Punishment Movement in New York State, 1776–

1861, p. 17 (1982); T. Jefferson, A Bill for Proportioning

Crimes and Punishments (1779), reprinted in The Com­

plete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of

John Marshall 207–209 (C. Cullen & H. Johnson eds.

1977) (describing petition for commutation based in part

on 5-month delay); Pratt v. Attorney Gen. of Jamaica,

28 GLOSSIP v. GROSS

BREYER, J., dissenting

[1994] 2 A. C., at 17 (same in United Kingdom) (collecting

cases). And, for reasons I shall describe, infra, at 29–33,

we cannot return to the quick executions in the founding

era.

3

The upshot is that lengthy delays both aggravate the

cruelty of the death penalty and undermine its jurispru­

dential rationale. And this Court has said that, if the

death penalty does not fulfill the goals of deterrence or

retribution, “it is nothing more than the purposeless and

needless imposition of pain and suffering and hence an

unconstitutional punishment.” Atkins, 536 U. S., at 319

(quoting Enmund v. Florida, 458 U. S. 782, 798 (1982);

internal quotation marks omitted); see also Gregg, 428

U. S., at 183 (joint opinion of Stewart, Powell, and Ste­

vens, JJ.) (“sanction imposed cannot be so totally without

penological justification that it results in the gratuitous

infliction of suffering”); Furman, supra, at 312 (White, J.,

concurring) (a “penalty with such negligible returns to the

State would be patently excessive and cruel and unusual

punishment violative of the Eighth Amendment”); Thomp­

son, 556 U. S., at 1115 (statement of Stevens, J., respect­

ing denial of certiorari) (similar).

Indeed, Justice Lewis Powell (who provided a crucial

vote in Gregg) came to much the same conclusion, albeit

after his retirement from this Court. Justice Powell had

come to the Court convinced that the Federal Constitution

did not outlaw the death penalty but rather left the matter

up to individual States to determine. Furman, supra, at

431–432 (Powell, J., dissenting); see also J. J

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