# Glossip v. Gross > Supreme Court of the United States · June 29, 2015 · 25 Fla. L. Weekly Fed. S 494 URL: https://www.frixlaw.com/law-library/cases/2812588 ## Case - **Full name:** Richard E. GLOSSIP, Et Al., Petitioners v. Kevin J. GROSS, Et Al. - **Court:** Supreme Court of the United States - **Decided:** June 29, 2015 - **Citations:** 25 Fla. L. Weekly Fed. S 494; 576 U.S. 863; 83 U.S.L.W. 4656; 135 S. Ct. 2726; 192 L. Ed. 2d 761; 2015 U.S. LEXIS 4255 - **Precedential status:** Published - **Opinion:** Opinion by Alito - **Judges:** Alito - **Cited by:** 778 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2812588 ## How later opinions describe it (automated extraction) - stating, in the second paragraph, “For two independent reasons, we also affirm. . . . Second, the District Court did not 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… - explaining that a plaintiff must show “a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment” (cleaned up) (quoting Baze, 553 U.S. at 50 ) - holding that a three-Justice plurality opinion constituted the "holding” of the Court in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), because Justices Scalia and Thomas had concurred in the result reached by the plurality but on "broader” grounds - recognizing that Trop “has caused more mischief to our jurisprudence, to our federal system, and to our society than any other [case] that comes to mind” by “replac[ing] the judgments of the People with [the judiciary’s] own standards of decency” - holding that a three-Justice plurality opinion constituted the “holding” of the Court in Baze v. Rees, 553 U.S. 35 (2008), because Justices Scalia and Thomas had concurred in the result reached by the plurality but on “broader” grounds ## Opinion text (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 Judicia [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2812588. Public record. Not legal advice.