Petition for Writ of Certiorari — Stacey Johnson, et al., Petitioners v. Dexter Payne, Director, Arkansas Division of Correction, et al.

***THIS IS A CAPITAL CASE***

No. __________________________________

In the Supreme Court of the United States

STACEY JOHNSON, et al.

Petitioners

v.

DEXTER PAYNE, Director,

Arkansas Division of Correction, et al.

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

LISA G. PETERS

FEDERAL PUBLIC DEFENDER

JOHN C. WILLIAMS

Counsel of Record

Ass’t Federal Public Defender

1401 W. Capitol, Ste. 490

Little Rock, AR 72201

(501) 324-6114

john_c_williams@fd.org

Counsel for Petitioners

***THIS IS A CAPITAL CASE***

QUESTIONS PRESENTED

1.

Whether the Eighth Amendment requires a prisoner challenging the

method of his execution to show a scientific consensus that the method is

sure or very likely to cause severe pain.

2.

Whether a court may adjudicate a method-of-execution challenge by

assessing the painfulness of a State’s proposed method in a vacuum,

without addressing the prisoner’s proposed alternative method.

i

PARTIES

Petitioners are:

•

Justin Anderson

•

Ray Dansby

•

Don Davis

•

Gregory Decay

•

Kenneth Isom

•

LaTavious Johnson

•

Stacey Johnson

•

Timothy Kemp

•

Brandon Lacy

•

Zachariah Marcyniuk

•

Terrick Nooner

•

Roderick Rankin

•

Andrew Sasser

•

Mickey Thomas

•

Bruce Ward

Respondents are Dexter Payne, Director of the Arkansas Division of Correction,

and Sarah Huckabee Sanders, Governor of the State of Arkansas. Governor Sanders

is substituted for Governor Asa Hutchinson, who was Defendant/Appellee below.

ii

DIRECTLY RELATED CASES

•

McGehee v. Hutchinson, No. 17-cv-179, United States District Court for the

Eastern District of Arkansas, preliminary injunction entered April 15, 2017,

judgment entered May 31, 2020.

•

McGehee v. Hutchinson, Nos. 17-1804/1805, United States Court of Appeals

for the Eighth Circuit, vacating preliminary injunction and denying crossappellants’ motion for stay of execution, judgments entered April 17, 2017.

•

McGehee v. Hutchinson, Nos. 16-8770/8787, United States Supreme Court,

denying applications for stay of execution, April 20, 2017.

•

Johnson v. Hutchinson, No. 17-cv-181, United States District Court for the

Eastern District of Arkansas, consolidated with No. 17-cv-179 on March 30,

2017, judgment entered May 31, 2020.

•

Ward v. Hutchinson, No. 17-cv-182, United States District Court for the

Eastern District of Arkansas, consolidated with No. 17-cv-179 on March 30,

2017, judgment entered May 31, 2020.

•

Nooner v. Hutchinson, No. 17-cv-183, United States District Court for the

Eastern District of Arkansas, consolidated with No. 17-cv-179 on April 3,

2017, judgment entered May 31, 2020.

•

Davis v. Hutchinson, No. 17-cv-187, United States District Court for the

Eastern District of Arkansas, consolidated with No. 17-cv-179 on March 30,

2017, judgment entered May 31, 2020.

•

Johnson v. Hutchinson, No. 21-1965, United States Court of Appeals for the

Eighth Circuit, affirming judgment of the district court, judgment entered

August 16, 2022.

iii

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Parties ............................................................................................................................ ii

Related Proceedings...................................................................................................... iii

Table of Contents .......................................................................................................... iv

Table of Authorities ...................................................................................................... vi

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional and Statutory Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 2

A.

Preliminary-injunction stage ........................................................................... 2

B.

Executions......................................................................................................... 6

C.

Trial .................................................................................................................. 8

1. Evidence on the midazolam protocol .......................................................... 8

2. Evidence on firing squad .......................................................................... 19

D.

The district court’s judgment ......................................................................... 22

E.

The Eighth Circuit’s opinion .......................................................................... 24

Reasons for Granting the Petition .............................................................................. 26

A.

Neither the other courts of appeals nor this Court require

prisoners to present a “scientific consensus” that a

State’s execution method causes pain ........................................................... 27

B.

The Eighth Circuit’s failure to consider Petitioners’

alternatives contradicts this Court’s precedent ............................................ 29

iv

C.

The Eighth Circuit has cut off a class of claim

that this Court has explicitly kept open ........................................................ 31

Conclusion .................................................................................................................... 34

APPENDIX

Appendix A – Eighth Circuit opinion (Aug. 16, 2022)

Appendix B – District court opinion (May 31, 2020)

Appendix C – District court order denying new trial (March 31, 2021)

Appendix D – Eighth Circuit order denying rehearing (Nov. 14, 2022)

v

TABLE OF AUTHORITIES

Cases

Page(s)

Baze v. Rees,

553 U.S. 35 (2008) ............................................................................................ 27, 28

Bryan v. Moore,

528 U.S. 1133 (2000) .............................................................................................. 32

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) .......................................................................... 26, 28, 29, 30

Glossip v. Gross,

576 U.S. 863 (2015) .................................................................................... 28, 29, 32

McGehee v. Hutchinson,

854 F.3d 488 (8th Cir. 2017) (en banc) ................................................................ 5, 6

Nance v. Ward,

142 S. Ct. 2214 (2022) .....................................................................................passim

State v. Mata,

745 N.W.2d 229 (Ne. 2008) .................................................................................... 32

Statutes and Rules

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 1331 ............................................................................................................. 3

42 U.S.C. § 1983 ....................................................................................................... 3, 33

Fed. R. Civ. P. 52(b) ..................................................................................................... 24

Other Authorities

Kathryn Casteel, Greenville News, “Final Testimony Day: Expert

Witnesses Debate Pain, Consciousness in SC Execution Protocols,” ................... 32

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully seek a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Eighth Circuit,

reported at 44 F.4th 1116 (8th Cir. 2022), is at Appendix A (App. 1a). The order of

the United States District Court for the Eastern District of Arkansas, reported at

463 F. Supp. 3d 870 (2020), is at Appendix B (App. 13a). The district court’s order

denying Petitioners’ motion for new trial, for additional findings of fact, and to

amend the judgment is unreported and reproduced at Appendix C (App. 119a). The

order of the court of appeals denying rehearing is at Appendix D (App. 129a).

JURISDICTION

The Eighth Circuit entered judgment on August 16, 2022. App. A. The Eighth

Circuit denied a timely rehearing petition on November 14, 2022. App. D. On

January 19, 2023, Justice Kavanaugh extended the time to file a petition for a writ

of certiorari until April 13, 2023. No. 22A721. This Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const. amend. VIII: Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

1

STATEMENT OF THE CASE

Petitioners have been litigating this challenge to Arkansas’s method of

execution—a three-drug protocol in which midazolam serves as the initial

chemical—since 2017. The district court preliminarily enjoined the State’s use of

the protocol in 2017, but the Eighth Circuit vacated the injunction. The case

proceeded to a bench trial in 2019, after which the district court found that the

protocol does not violate the Eighth Amendment. In affirming that judgment, the

Eighth Circuit held that Petitioners were required to show a “scientific consensus”

about the protocol’s effect on humans. The Eighth Circuit also declined to consider

whether firing squad would result in a comparatively more humane execution and

held that evidence about the availability of an alternative “was not material.”

Petitioners ask the Court to review these aspects of the Eighth Circuit’s opinion.

A.

Preliminary-injunction stage.

The Arkansas Department of Correction (“ADC”) adopted the midazolam

protocol in August 2015. It calls for the executioner to first inject the prisoner with

500 mg midazolam. After a consciousness check, the prisoner is injected with 100

mg vecuronium bromide followed by 240 mEq potassium chloride. App’x 206–11.1

On February 27, 2017, Asa Hutchinson, then the Governor of Arkansas, ordered

the executions of eight men—Don Davis, Stacey Johnson, Jack Jones, Ledell Lee,

Jason McGehee, Bruce Ward, Kenneth Williams, and Marcel Williams—to occur

1 Citations denoted “App’x” are to Appellant’s Appendix in the Eighth Circuit.

Citations denoted “PI” are to the transcript of the preliminary-injunction hearing in

the district court. Citations denoted “Tr.” are to the trial transcript.

2

over a two-week period in April 2017. On March 27, 2017, these men and a ninth

death-sentenced prisoner, Terrick Nooner, filed a complaint in the district court

under 42 U.S.C. § 1983 alleging, as relevant here, that executions with the

midazolam protocol violate the Eighth Amendment.2 The district court had

jurisdiction under 28 U.S.C. § 1331. Petitioners also filed a preliminary-injunction

motion seeking to stay the executions. The district court held a four-day hearing.

Petitioners presented two experts at the hearing. Dr. Craig Stevens, a

pharmacologist, explained that, if administered alone, vecuronium bromide causes

suffocation and potassium chloride causes severe burning. PI 237–40. He also

explained that, because of their mechanism of action, the sedative effect of

benzodiazepines such as midazolam tapers off at a certain point. PI 249–55. This

phenomenon is commonly referred to as “the ceiling effect.” PI 254. Dr. Joel Zivot,

an anesthesiologist, also testified for Petitioners. He agreed that midazolam has a

ceiling effect. PI 27–28. He testified that he might use it in some emergency

procedures because of its amnestic effects but that it has no pain-blacking

properties. PI 29, 32–33. Both experts agreed that 500 mg midazolam cannot render

a person insensate to the suffering caused by the second or third drug. PI 45, 268.

Defendants’ experts were Drs. Joseph Antognini, an anesthesiologist, and Daniel

Buffington, a pharmacist. Relying on a study of mice, Dr. Antognini opined that the

amount of midazolam in the Arkansas protocol would render prisoners insensate to

2 The cases were initially given individual case numbers before being consolidated

into one case, McGehee v. Hutchinson, No. 17-cv-179 (E.D. Ark.).

3

the second and third drugs. PI 976, 979–80, App’x 503. He testified that 500 mg

midazolam would produce unconsciousness for “several hours, if not more.” PI 1004.

However, on cross-examination, Dr. Antognini was forced to admit that midazolam’s

anesthetic effect is limited because of its mechanism of action. Based on his

understanding of the literature, one starts to see a ceiling at 20 to 25 mg. PI 1026–

27.

Dr. Buffington likewise testified that the midazolam would produce anesthesia

lasting as much as thirty minutes or an hour. PI 628–32. His opinion relied on a

study in which patients were provided midazolam and then assessed on a bispectral

index (“BIS”) monitor—in particular, several data points within the study in which

patients received a BIS score below the number that the machine manufacturer

associates with general anesthesia. PI 643–46. Unlike the other three experts, Dr.

Buffington denied the existence of a ceiling effect and disputed whether the second

and third drugs in the protocol would cause pain. He described the injection of

vecuronium bromide alone as a “peaceful experience” and opined that persons

injected with significant quantities of potassium chloride “may have some more

discomfort; they may not have discomfort.” PI 671–73.

The hearing also contained limited evidence about the firing squad. Dr.

Jonathan Groner, a surgeon specializing in trauma care, opined that a firing squad

would entail much less risk of pain and suffering than the midazolam protocol. PI

588. Larry Norris, a former ADC director, testified that the ADC has firearms and

employees trained to use them. PI 726–27.

4

The district court enjoined the executions. Though it found the scientific proof at

the hearing “mixed,” App. 108a–110a, it did not believe Petitioners were required to

show a “well-established scientific consensus.” App. 119a–120a. It concluded that

the midazolam protocol likely involves a “demonstrated risk of severe pain,” App.

107a–108, and that this risk is “substantial when compared to known and available

alternative methods.” App. 115a. In particular, the court thought Petitioners likely

to demonstrate that the firing squad is a feasible alternative. App. 134a–137a.

The Eighth Circuit vacated the preliminary injunction. It determined that the

“district court’s factual findings would not support a conclusion that the prisoners

have a likelihood of success in showing that the execution protocol is sure or very

likely to cause severe pain.” McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir.

2017) (en banc). Specifically, it found that the preliminary-injunction record showed

“no scientific consensus and a paucity of reliable scientific evidence concerning the

effect of a lethal-injection protocol on humans.” Id. at 493. “The equivocal evidence

recited by the district court falls short of demonstrating a significant possibility that

the prisoners will show that the Arkansas protocol is ‘sure or very likely’ to cause

severe pain and needless suffering.” Id.

As to alternatives, the Court first articulated the legal standard: “We do not say

that an alternative method must be authorized by statute or ready to use

immediately, but . . . the State must have access to the alternative and be able to

carry out the alternative method relatively easily and reasonably quickly.” Id. Of

firing squad, it wrote:

5

The firing squad has been used by only one State since the 1920s. It

requires trained marksmen who are willing to participate and is

allegedly painless only if volleys are targeted precisely. The record

comes short of establishing a significant possibility that use of a firing

squad is readily implemented and would significantly reduce a

substantial risk of severe pain.

Id. at 494. The court also concluded that the “possibility that Arkansas could

obtain pentobarbital”—an alternative execution drug—was “too speculative

to justify stays of execution.” Id. at 493.

B.

Executions.

Three Petitioners—Davis, Stacey Johnson, and Ward—received stays unrelated

to this litigation and were not executed. McGehee received clemency in September

2017 and was later dismissed from the suit.

Ledell Lee was executed on April 20, 2017. No witness noted any visible

irregularity with his execution.

Jack Jones and Marcel Williams were executed, in that order, on April 24, 2017.

The Jones execution occasioned a new stay motion for Williams based on eyewitness

reports that Jones continued moving his lips five minutes after the execution began.

The district court denied the motion after an emergency hearing. App’x 141–62.

Williams’s execution then went forward after an additional forty-two-minute delay

during which the executioners had difficulty accessing a vein. Tr. 216, 1359.

Kelly Kissel, a reporter for the Associated Press who had previously witnessed

eight executions not involving midazolam, was present. Kissel described “labored

breathing really from the get-go.” Tr. 30. Compared to the previous executions

Kissel witnessed—in which “the men would breathe occasionally heavily, but they

6

would just go to sleep”—“the labored breathing appeared to go on longer.” Tr. 31–

32. After consciousness checks, a member of the execution team mouthed, “I don’t

know.” Tr. 35–36.

Kissel also witnessed Kenneth Williams’s execution on April 27, 2017. While

giving his final statement, Williams’s voice began to trail off. Four or five minutes

later, “the top half of his body lurched forward just violently up against the leather

restraint. And it happened 15 times in a row. . . And then there were five more at a

slower rate.” Tr. 40. After the lurching, Williams had “labored breathing or heavy

breathing throughout until it eventually tailed off and ceased.” Tr. 40–41. Though

there was no audio feed to the witness room, sounds were audible: “[W]e could hear

in the room like the thrashing against the leather straps. We could hear that in the

chamber, and there was a gasp or a moan.” Tr. 42.

Kissel summed up his experience of both executions: “The final two executions

that I saw, Marcel Williams and Kenneth Williams’s execution, those two were

more active than any of the previous eight that I’ve seen.” Tr. 45.3

Dr. Joseph Cohen performed an autopsy of Kenneth Williams on Petitioners’

behalf. He discovered a two-inch bruise on the back of Williams’s head, missed on

an initial autopsy by the State Medical Examiner’s Office. Tr. 143. The bruise

indicated a blunt-force trauma “either due to a moving head striking a fixed surface

3 The movements witnessed in the Arkansas executions are characteristic. At trial,

witnesses to midazolam executions in Alabama, Ohio, Tennessee—which used

either the same protocol or a functionally indistinct one—described the condemned

moving their heads, mouths, and limbs. Tr. 282–356.

7

or a moving object striking the head.” Tr. 151. The bruise was “very recent” and

“appears to be a few hours or less” from time of death. Tr. 152.

Williams’s head, like the heads of the other condemned, was placed against a

wooden headboard during the execution. App’x 212–13. The condemned can move

his head despite the presence of a head restraint on the execution gurney. Tr. 1389–

90; PI 1195, 1198. Any evidence of Williams hitting his head before the execution

would have been recorded, but there is no record of such an injury. Tr. 1396–97.

C.

Trial.

After intervention of additional Petitioners, App’x 163, the case proceeded to

trial in April 2019.

1. Evidence on the midazolam protocol.

At trial, Petitioners offered expert testimony and scientific studies. This proof

showed that at least seventy-two percent of patients who receive a ceiling-effect

dosage of midazolam or higher remain aware during surgery. These patients will

not feel pain if the anesthetic regimen includes an analgesic, or painkilling, drug.

While the Arkansas protocol contains no analgesic drug, it contains one drug that

causes air hunger (vecuronium bromide) and another that causes extreme burning

(potassium chloride).

Dr. Gail Van Norman, an experienced anesthesiologist, testified on these points

for Petitioners. She discussed her personal experience with patients who had been

injected with vecuronium bromide or potassium chloride without adequate

anesthesia. People who received about 7 mg vecuronium bromide described a

8

“sensation of suffocation,” “like they’re drowning and they can’t move. They describe

being terrified, as well as a feeling of extreme air hunger, like they must take a

breath, but they can’t.” Tr. 508–10. Dr. Van Norman recalled one inadequately

anesthetized patient who received a 40 mg dose of potassium chloride—one-sixth

the amount in the execution protocol—“too rapidly.” This patient “rose up and

screamed” and “said that he felt like someone had poured gasoline on him and lit

him on fire.” Tr. 513.

To block this pain, midazolam must either possess painkilling properties or

produce adequate sedation to render a prisoner unaware. But midazolam is not an

analgesic when injected intravenously. Tr. 407–08, 973, 1470, 1512; App’x 469. And

midazolam’s sedative properties are limited by its ceiling effect, a phenomenon that

is “quite mainstream and supported by every reputable pharmacologic and

anesthesiology textbook.” Tr. 520.

Petitioners presented studies pinning midazolam’s ceiling effect at between 0.2

mg/kg and 0.4 mg/kg (equivalent to 20–40 mg in a 220-pound person). Dr. Stevens,

presenting additional trial testimony, discussed a study by Miyake in which

researchers noted subjects’ brain activity on an EEG after injections of 0.2 mg/kg

midazolam and 0.3 mg/kg midazolam (20 mg and 30 mg in a 220-pound person).

Injection of 0.3 mg/kg midazolam did not produce a meaningful depressive effect

above that observed after injection of 0.2 mg/kg. Thus, the study provided a “good

estimate” that midazolam’s ceiling effect occurs between 20 and 30 mg. Tr. 383–84;

App’x 220–28. Dr. Stevens also discussed several studies documenting the real-

9

world effect of large overdoses of benzodiazepines—quantities larger than the

ceiling-effect dosage indicated in Miyake. Not only did none of the patients in these

studies die, but many of them responded to stimulus. Tr. 385–99; App’x 229–53.

Dr. Van Norman concurred in Dr. Stevens’s reading of Miyake and also

discussed another study, Inagaki. App’x 254–58. The Inagaki researchers attempted

to measure midazolam against a well-known anesthetic, halothane. To do this, they

first fully anesthetized surgical patients with halothane. Then, gradually, they

began reducing the halothane and replacing it with midazolam while looking for

signs of movement. The aim was to determine how much midazolam the patient had

to receive before halothane could be cut off completely, while still maintaining

anesthesia. But, as Dr. Van Norman explained, “the problem was, they never were

able to turn the Halothane off. They couldn’t get there.” Thus, “they concluded that

not only was midazolam not an anesthetic, which we already knew before this

study, but that it had something called a saturable effect,” which is “a synonym for

saying that midazolam has a ceiling effect.” Tr. 521–25.

The ceiling effect can be seen in in Figure 3 of Inagaki, App’x 257, which shows a

marked flattening of the curve at about 0.4 mg/kg (40 mg in a 220-pound person):

10

This dose is far lower than the 500 mg given in the Arkansas protocol.

Though midazolam stops producing sedation well below 500 mg, can it

nevertheless sufficiently sedate the prisoners to prevent pain? To address this

question, Dr. Van Norman drew a distinction between awareness, pain, and recall

during surgery.

As to awareness and recall, a patient who recalls what happened during surgery

was, by definition, aware. However, patients can be aware during surgery without

recalling it afterward. Tr. 515–16. This, in fact, happens quite frequently when the

patient’s anesthetic regimen includes a drug that causes amnesia, such as

midazolam. Tr. 589–90.

As to awareness and pain, anesthetic regimens typically include an analgesic

(such as a narcotic) to block pain, so a patient who is aware during surgery will

generally not feel pain. Tr. 541, 556, 589. Midazolam itself is not an analgesic. Tr.

407–08.

11

Finally, as to pain and recall, if a patient’s anesthetic regimen does not include

an analgesic but does include a drug that causes amnesia, the patient may be aware

and feel pain without recalling it afterward. Tr. 588–90, 1470. This would happen

most commonly in an ER, when a doctor must do an emergency procedure (such as

setting a bone) without waiting on anesthesia. In those situations, the doctor might

administer only midazolam—but the purpose would not be to block the pain, as

midazolam has no analgesic properties. Rather, the purpose would be to calm the

patient and to ensure that she does not remember the painful experience later. Tr.

1470.

With that background, Dr. Van Norman testified about the frequency with which

patients are aware during surgery. She presented data from numerous studies

using a procedure called the “isolated forearm technique.” This technique has been

used to demonstrate that anesthetized patients undergoing surgery are, in fact,

often aware of what is happening. Tr. 534–50. The isolated forearm technique works

by applying a tourniquet to a patient’s arm, blocking that arm from receiving the

paralytic surgeons have injected to prevent movement. Then, as surgery is ongoing,

the patient is asked questions and instructed to respond by opening or closing her

fist. Tr. 535.

Dr. Van Norman presented a video, with screenshots shown below, to illustrate.

As seen at the start of the video, the patient—who is anesthetized and in the midst

of abdominal surgery—has the fingers of her left hand slightly closed:

12

In the next screenshot, the patient has been instructed to “open the fingers of

your left hand” and has done so:

In the next screenshot, the patient has been instructed to “just let them close

up again” and has done so:

13

Then the patient is instructed: “If you have pain, but only if you have pain,

open your fingers.” The patient, who has also received an analgesic, leaves

her fingers closed:

App’x 259.4

4 A longer version of the video, the beginning of which instructs anesthesiologists on

how to set up the technique, is available at

https://www.youtube.com/watch?v=ZEAYsEbkJrw.

14

The literature that relies on this technique shows that seemingly unaware

patients often respond to stimulus. Dr. Van Norman testified regarding the Linassi

paper, which is a meta-analysis of twenty-two isolated-forearm-technique studies.

Tr. 541–43; App’x 260–71. This paper found that 34.8% of patients receiving any

anesthetic regimen were aware during surgery. Id. With respect to midazolam,

specifically, the Russell study showed that 72% of patients receiving midazolam at

doses “higher in the range of the ceiling effect”—between 0.3 and 0.6 mg/kg—were

aware during surgery. Tr. 543–47, 1474–75; App’x 286–90. (Because those patients

also received a narcotic, they were not in pain. Id.) Moreover, Russell likely

provided an underestimate, because researchers have demonstrated that drugs with

midazolam’s mechanism of action interfere with the thalamus and make it more

likely that a person is aware yet unable to respond. Tr. 550–55, App’x 272–85.

Dr. Van Norman found confirmation of the Russell data in her own experience as

an anesthesiologist in the 1980s, when benzodiazepines were commonly used—

alongside an analgesic—in cardiac surgeries. Dr. Van Norman testified that she

often had patients report that they were aware during surgery, and specifically

described two such patients—one given midazolam and one given diazepam—who

stated that they had been aware of and could recall the doctors cutting open their

chests (although they were not in pain, having also received a powerful analgesic).

Tr. 530–31.

The upshot of all this evidence? At least seventy-two percent of patients who

receive an amount of midazolam at around the ceiling-effect dosage remain aware of

15

what is happening. If they do not receive an analgesic drug, they will feel pain. But

because the Arkansas protocol contains no analgesic drug, at least three quarters of

condemned prisoners can expect to feel the effects of the second and third drugs

during their executions.

To rebut Petitioners’ proof, the State relied again on Drs. Buffington and

Antognini. Dr. Buffington, who holds an MBA (a business degree) and a PharmD

(the minimum degree required to practice as a pharmacist), but who has never

administered midazolam or any other anesthetic to a patient, again testified that a

20–30 mg dose of midazolam would be enough to induce general anesthesia in an

average-sized, healthy man for thirty minutes to an hour. Tr. 767–68. This opinion

was again based largely on studies using a BIS score to measure depth of

anesthesia. However, Dr. Van Norman explained that BIS monitors “don’t predict

awareness,” Tr. 534. Dr. Antognini also acknowledged that the BIS is “not a perfect

monitor.” Tr. 885.

Moreover, the papers upon which Dr. Buffington relied called his conclusions

into question. For example, one paper states that the average BIS score for patients

receiving midazolam was 69—above the device makers’ stated threshold for general

anesthesia (i.e., 60). Tr. 826. Another of his sources (Bulach) contradicted his claim

that midazolam will produce general anesthesia for 30 to 60 minutes. Bulach

reports BIS scores from immediately before receiving midazolam, four minutes after

receiving midazolam, and eight minutes after receiving midazolam. Critically, it

shows that BIS scores were higher at eight minutes than at four minutes—

16

suggesting that midazolam’s effect had begun to taper off between four and eight

minutes:

App’x 500.5

Dr. Buffington also offered an opinion, unique to him among the experts, that

midazolam does not exhibit a ceiling effect at all. He did not identify any scientific

study rebutting Miyake or Inagaki, or refuting the generally accepted notion that

there is a ceiling effect, or refuting that the ceiling effect kicks in between 20 and 40

mg. Rather, he opined that midazolam has an additional mechanism of action, not

identified by Dr. Stevens, that produces additional sedation. Tr. 838. This opinion

was based on a single study, Orser, that Dr. Buffington cited in his expert report

but that he chose not to discuss with the court on direct examination and that the

5 The table also includes a metric called “VAS.” Conversely to BIS scoring, a higher

VAS score is associated with greater sedation. App’x 498. VAS thus replicates the

result of BIS—greater awareness between four and eight minutes. Dr. Buffington

does not appear to have understood the distinction between BIS and VAS scores. He

testified that Bulach shows BIS scores “as low as 30s.” Tr. 829; see also Tr. 825. The

scores in the 30s that Dr. Buffington pointed to, however, were not BIS scores; they

were VAS scores, for which lower numbers signify greater awareness.

17

State did not even include on its exhibit list. Cross-examination and later rebuttal

by Dr. Stevens showed that Orser does not, in fact, support Dr. Buffington’s theory

about the additional mechanism of action that purportedly disproves the ceiling

effect. Tr. 839–49, Tr. 1445–49.

Dr. Antognini testified that he “wouldn’t use [midazolam] in 2019,” he wouldn’t

“want to use [it] for a long procedure,” and he “wouldn’t use it for a procedure by

itself.” Tr. 912–13. “[I]f we were on an island and that’s all I had and you needed

anesthesia for a procedure, that’s what I would give you.” Tr. 913. Dr. Antognini

nevertheless opined that midazolam would adequately anesthetize the condemned.

Tr. 894. He supported that opinion by reference to a statement on midazolam’s label

that the drug is indicated “for induction of general anesthesia.” On crossexamination, he was forced to admit that the label does not approve midazolam as a

sole agent to maintain anesthesia throughout a procedure. Rather, it is indicated

“for induction of general anesthesia, before administration of other anesthetic

agents.” Tr. 960–61; App’x 483–90. He also supported his opinion with the Miyake

paper, in which patients underwent endotracheal intubation after receiving

midazolam—but in Miyake the subjects were also given a powerful painkiller,

remifentanil, for placement of the tube. Tr. 901–03. Despite his earlier opinion that

he understood the scientific literature to find a ceiling effect at around 20–25 mg, PI

1026–27, Dr. Antognini sought to cast doubt on the ceiling-effect studies Drs.

Stevens and Van Norman discussed.

18

At the start of his testimony, Dr. Antognini described the “honor” he had

recently received in being “elected as a fellow of the American Society of

Anesthesiologists.” As he explained, that fellowship of leaders in the field is a small

group, embracing barely more than one percent of the society’s total membership.

Tr. 887–88. Yet, despite his inclusion in that group—and despite his various efforts

to justify use of midazolam as a general anesthetic—Dr. Antognini failed to tell the

court that the American Society of Anesthesiologists includes “benzodiazepines, e.g.,

midazolam, diazepam,” on its list of “sedatives not intended for general anesthesia.”

Tr. 980–81. In fact, he did not even know that the Society had made that

recommendation. Tr. 979.

2. Evidence on firing squad.

As to the feasibility and availability of a firing squad, Wendy Kelley, who was

then the Director of ADC, testified that there is no logistical barrier to the ADC’s

implementation of a firing squad. Rather, the problem is that no Arkansas statute

provides for it. Tr. 1418. Kelley formed this opinion in 2015 after contacting Utah

about the method. “[B]ased upon what Utah told me was involved in it, I didn’t feel

like it was something that I could say we could not do.” Tr. 1417–18.

Kelley further testified about ADC operations relevant to implementation of a

firing squad. ADC has about ninety prisoners working daily on construction, on top

of fifty available employees. It has the capacity to build furniture. A new armory at

the Varner Unit was in the works at the time of trial. ADC has multiple firing

ranges and firearms instructors. Tr. 1411–14.

19

Petitioners introduced a current firing-squad protocol from Utah (App’x 294–

431) and presented testimony from two officials at the Utah Department of

Corrections. Gregory Peay discussed construction of the Utah execution chamber,

which was built using “the general specs that was for the other buildings.” Tr. 615.

It is similar to a lethal-injection chamber with some limited exceptions, such as the

use of a chair to secure the condemned, gun ports from which to fire, and Kevlar

backing to prevent ricochet. Tr. 617–19. The chamber does not present any safety

concerns. Tr. 629. Stephen Turley discussed the logistics of the firing squad,

including the process for selecting and training executioners, securing weapons,

carrying out the execution, and cleaning up. Tr. 637–38, 641.

On whether a firing squad would reduce the risk of pain inherent in the

midazolam protocol, Petitioners presented testimony from Dr. James Williams, an

emergency room doctor who has treated hundreds of gunshot wounds during a

career of over two decades, including an individual who was shot twice in the chest

with a .30-caliber rifle. Tr. 672, 713. At age eighteen, he himself was shot in the

chest with a “.22 caliber bullet, high-velocity bullet.” Tr. 675–78. He is an

experienced firearms user who has been recognized for his marksmanship and who

trains law-enforcement officers on advanced firearms techniques. Tr. 673–75, 727.

Dr. Williams addressed the medical considerations surrounding firing squads

and the way in which the method produces death. During a typical firing squad, the

condemned is shot in the heart with multiple rounds from a high-powered rifle, such

as a .30-caliber rifle. It is “virtually 100-percent reliable from a medical perspective”

20

that these shots will cause unconsciousness in seconds and death shortly thereafter.

Tr. 698. “[T]he bullets that transect the condemned person’s chest cause cessation of

circulation of blood to the brain. . . . [W]ithin seven to 10 seconds, the individual will

be unconscious and brain deaths happens within a matter of minutes after that.”

Tr. 697. Dr. Williams further supported this opinion by examining an

electrocardiograph taken from a prisoner as he was executed by firing squad. Tr.

701–02; App’x 456.

Dr. Williams’s patients who have been shot in the chest with high-powered

weapons, such as those that would be used in a firing squad, “describe it as being

struck by a very, very solid blow, a blunt force. They don’t describe it as a

penetration” or a stabbing wound. Tr. 677–78. These descriptions are consistent

with Dr. Williams’s personal experience of being shot in the chest with a highvelocity bullet, which he described as feeling like a “stinger or a burner” (a typical

football injury). Tr. 677. Medically speaking, the wound “stunned the nerve

structures in the shoulder and arm of my right shoulder and arm, which is what

resulted in that sensation of numbness.” Tr. 677. Dr. Williams was able to drive

himself to the hospital after being shot. Tr. 676. The area of the gunshot wound

eventually became extremely painful, but not until hours later, when the nerve

endings regained their function and the numbing sensation went away. Tr. 675–76.

Shots to the chest are relatively painless compared to shots to joints and bone,

which “typically produce fractures, and fractures are intensely painful immediately

21

upon the fracture occurring.” Tr. 678. Shots to the chest may lead to rib fractures,

but “rib fractures are considerably less painful” than other types. Tr. 679.

Based on his experience and medical training, Dr. Williams concluded that the

condemned is unlikely to feel pain during the few seconds after the bullets make

impact and before he loses consciousness: “It would be more a matter of

experiencing the sensation of a powerful blow to the chest.” Tr. 698.

Dr. Williams also opined that the key elements needed to ensure that a firing

squad is carried out painlessly—adequately powered firearms and proficient

marksmen—are common. The weapons are readily available, and Arkansas’s

standards for peace officers require them to accurately hit a target smaller than

would be necessary for the firing squad. Tr. 684, 690–96; App’x 457–59.

Respondents’ only proof on the firing squad was the brief testimony of Dr.

Antognini. He agreed the condemned would lose consciousness within seconds of

being shot, but he nevertheless “[had] to imagine” that the experience would be

painful. Tr. 952–53. The only evidence he considered was a YouTube video of a

double execution by firing squad in Guatemala, during which the condemned were

not fully secured and did not have a target placed over their hearts. Tr. 953–54.

D.

The district court’s judgment.

On May 31, 2020, the district court entered judgment for Respondents on the

Eighth Amendment claim. Its order did not draw credibility determinations or

resolve conflicts among witnesses. It cited only one of the scientific studies the

parties introduced at trial. The discussion of this study is limited to the following:

22

Dr. Van Norman described for the Court a scientific study involving

halothane and Midazolam in which researchers examine “PRST

response,” which according to Dr. Van Norman looks at blood pressure,

heart rate, and whether the person is sweating or tearing as examples

of consciousness because the subjects of the study were paralyzed and

unable to respond in other ways.

App. 23a. The court similarly noted, without any citation or elaboration:

Dr. Van Norman described studies that, by using the isolated forearm

technique, have demonstrated that, even if individuals are prevented by

benzodiazepines and Midazolam in general from remembering things,

these types of drugs may not necessarily be good at preventing people

from being aware and experiencing them in the moment.

App. 22a.

The court concluded that Petitioners had not proven that the midazolam protocol

entails a substantial risk of severe pain. It noted that eyewitness reports of the

Arkansas executions did not swing the case Petitioners’ way because movements

and sounds observed during the executions do not necessarily indicate

consciousness. App. 82a. Additionally, the court noted that Dr. Van Norman once

used midazolam alongside a high-dose narcotic for cardiac anesthesia; that the

midazolam protocol calls for a higher dose of midazolam than the FDA-approved

dose; that “[e]ven if there is general medical consensus that Midazolam has a ceiling

effect, there is no such consensus on the dose of Midazolam at which the ceiling

effect is exhibited”; that Dr. Van Norman “is unable to say at what point any

individual would experience extreme suffering”; and that there is “no direct

scientific data to support the proposition that any inmate experienced severe pain

and suffering during an execution.” App. 81a–82a.

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The court also concluded that Petitioners had failed to show that a firing squad

would be less painful than the midazolam protocol:

Even crediting all of Dr. Williams’s testimony, he has never treated a

gunshot victim within 60 seconds of receiving an injury to the chest, nor

within 10 to 15 seconds of receiving an injury to the chest; has never

treated a gunshot wound victim who has received five gunshot wounds

to the chest with a .30 caliber rifle, which would be comparable to a firing

squad, although he has treated a victim shot twice in the chest with a

.30 caliber rifle; and acknowledges that there is nothing in the medical

literature that addresses this situation. Dr. Williams could not testify

that an execution by firing squad would be pain free. In fact, Dr.

Williams testified that, if shot in a bone or joint causing a fracture, the

gunshot wound would be painful, but he testified based on personal and

medical experience that fractures in ribs are less painful than fractures

in other bones or joints.

App. 85a–86a.

Petitioners filed a motion asking the district court to make additional factual

findings under Fed. R. Civ. P. 52(b) to account for the scientific proof presented at

trial. The motion also sought a new trial based on the post-trial emergence of

information about the federal government’s supply of pentobarbital, another

alternative Petitioners had proposed, for use in federal executions. The district

court denied the motion on March 31, 2021. App. C.

E.

The Eighth Circuit’s opinion.

The Eighth Circuit affirmed the district court’s judgment and its order denying a

new trial. It concluded that, though Drs. Stevens and Van Norman presented

studies pinning the ceiling effect at between 0.2 mg/kg and 0.4 mg/kg—that is,

approximately the dose at which the Russell-study patients were shown to remain

aware—the State’s experts “presented competing opinions.” App. 5a. The court thus

24

engaged in little analysis of the scientific proof and found no need for additional

factual findings on that proof. It concluded that Petitioners had failed to meet their

burden under the Eighth Amendment: “With no scientific consensus and a paucity

of reliable scientific evidence concerning the effect of large doses of midazolam on

humans, the district court did not clearly err.” Id.

In affirming the order denying new trial, the Eighth Circuit held that newly

available proof about pentobarbital “was not material”: “The prisoners failed to

establish that the State’s existing method was sure or very likely to cause needless

suffering, so the State was not required to consider alternative methods.” Id.

Consistent with this pronouncement, the court said nothing about Petitioners’

argument that a firing squad, unlike the midazolam protocol, would cause quick

and painless death.

Judge Kelly concurred in the judgment. Though she found that the district court

did not err under circuit precedent, she urged reconsideration of that precedent.

Despite Petitioners having presented “a substantial amount of scientific evidence

supporting their position,” the court’s “demand that prisoners present

overwhelming ‘scientific evidence’ and show a ‘scientific consensus’ about the effect

of drug dosages that will never ethically be tested on humans has shown itself to be

an insurmountable task.” App. 7a–8a. As Judge Kelly explained, no other circuit

has adopted the “scientific consensus” standard and “[e]stablishing a scientific

consensus is not required under Supreme Court precedent.” App. 10a. The

concurrence explained that the court’s standard creates a Catch-22: “[O]ne of the

25

reasons for this lack of consensus is the lack of reliable clinical studies,” but

“[b]ecause a study using 500 mg of midazolam cannot be conducted, there will

continue to be a degree of speculation—and thus a lack of consensus—about the

effect of such a dose.” App. 11a–12a. Judge Kelly summarized her concern:

In choosing an execution protocol, states can select dosages that have

not been reliably studied, and experts will likely continue to disagree

about the effect of those dosages on human subjects and about the

degree of uncertainty involved. That is, of course, the nature of science

and the scientific method. But if those disagreements persist—and

based on the evidence presented in this case, a reliable study that would

answer the midazolam ceiling effect question is not currently possible—

it is unclear how a prisoner could ever prevail in a method-of-execution

challenge to a lethal injection protocol under this circuit’s current

standard.

App. 12a.

The Eighth Circuit denied rehearing. App. D.

REASONS FOR GRANTING THE PETITION

Certiorari is warranted because the Eighth Circuit’s opinion conflicts with the

precedent of other circuits and this Court’s authorities. It does so in two different

ways. First, by requiring prisoners to present a “scientific consensus” that an

execution protocol will cause the person being executed to experience pain, the

Eighth Circuit stretched this Court’s precedent well beyond its holdings and created

conflict with other circuits. Second, by failing to consider Petitioners’ evidence of

alternative execution methods, the Eighth Circuit overlooked this Court’s

instruction that assessment of a method-of-execution challenge “is a necessarily

comparative exercise.” Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019). For all

practical purposes, the legal standard announced in the Eighth Circuit’s opinion

26

“precludes the kind of method-of-execution claim this Court told prisoners they

could bring.” Nance v. Ward, 142 S. Ct. 2214, 2225 (2022).

A.

Neither the other courts of appeals nor this Court require prisoners to present

a “scientific consensus” that a State’s execution method causes pain.

Certiorari is necessary to correct a manifest misconstruction of this Court’s

precedent—a misconstruction that makes the Eighth Circuit an outlier among the

circuits. In contrast to the legal standard the Eighth Circuit applied here, this

Court has never required a prisoner to present a “scientific consensus” that an

execution method will cause severe pain in order to successfully challenge that

method.

The Supreme Court’s modern development of the Eighth Amendment methods

standard begins with Baze v. Rees, 553 U.S. 35 (2008). In that case, Chief Justice

Roberts, joined by Justices Kennedy and Alito, wrote that the Court’s precedents do

not require a plaintiff to prove the actual infliction of pain: “Our cases recognize

that subjecting individuals to a risk of future harm—not simply actually inflicting

pain—can qualify as cruel and unusual punishment.” Id. at 49. The Chief Justice

further elaborated:

[T]he conditions presenting the risk must be sure or very likely to cause

serious illness and needless suffering, and give rise to sufficiently

imminent dangers. We have explained that to prevail on such a claim

there must be a substantial risk of serious harm, an objectively

intolerable risk of harm that prevents prison officials from pleading that

they were subjectively blameless for purposes of the Eighth

Amendment.

Id. at 50 (internal quotation marks and citations omitted).

27

In a solo concurrence, Justice Alito applied an additional gloss to this standard.

“[A]n inmate should be required to do more than simply offer the testimony of a few

experts or a few studies,” he wrote. “Instead, an inmate challenging a method of

execution should point to a well-established scientific consensus.” Id. at 67.

That is not the path the Court later took. When the Court next considered the

methods standard, it produced an opinion that commanded a majority. Thought

Justice Alito wrote that opinion, it said nothing about a need for scientific

consensus. Instead, the Court adopted the standard stated in Chief Justice

Roberts’s plurality opinion. See Glossip v. Gross, 576 U.S. 863, 877 (2015). A

prisoner must establish “that the State’s lethal-injection protocol creates a

demonstrated risk of severe pain” that is “substantial when compared to the known

and available alternatives.” Id. at 878. Stated differently, “an inmate challenging a

protocol bears the burden to show, based on the evidence presented to the court,

that there is a substantial risk of severe pain.” Id. at 882.

The Court has stayed that course each time it has taken up a question related to

lethal injection. See Nance, 142 S. Ct. at 2220 (plaintiff must show a “substantial

risk of serious harm—severe pain over and above death itself”); Bucklew, 139 S. Ct.

at 1130 (plaintiff must show an alternative that “would significantly reduce a

substantial risk of severe pain”). Indeed, in Bucklew the Court spent pages

assessing the evidence about the risk of pain from the method under challenge—an

approach that would have been superfluous had the only question been whether

28

there is a scientific consensus about that method (which obviously there was not).

See Bucklew, 139 S. Ct. at 1130–33.

By going far beyond the prevailing standard, the Eighth Circuit’s “scientific

consensus” requirement reduces constitutional protections in a manner this Court

has not authorized. And as Judge Kelly stated in her concurrence below, “[n]o other

circuit imposes such a stringent requirement.” App. 10a. Certiorari is necessary to

bring the Eighth Circuit into conformity with the precedent of other circuits and

this Court.

B.

The Eighth Circuit’s failure to consider Petitioners’ alternatives contradicts

this Court’s precedent.

The Eighth Circuit also strayed from this Court’s precedent by treating the

question of risk (or scientific consensus) as an independently sufficient basis for

adjudicating a method-of-execution claim. This Court has held—contrary to the

Eighth Circuit’s approach—that assessment of a methods claim “is a necessarily

comparative exercise.” Id. at 1126. When testing an execution method under the

Eighth Amendment, the risk of pain inherent in the method cannot be judged by

itself—it must be judged against a proposed alternative.

At one time this Court did appear to treat risk and alternatives as independent

“prongs” of a legal test. See Glossip, 576 U.S. at 878. But Bucklew put a stop to that

in clear terms. Faced with the argument that a court can judge the cruelty of an

execution method per se, the Court held:

Distinguishing between constitutionally permissible and impermissible

degrees of pain . . . is a necessarily comparative exercise. To decide

whether the State has cruelly “superadded” pain to the punishment of

29

death isn’t something that can be accomplished by examining the State’s

proposed method in a vacuum, but only by comparing that method with

a viable alternative. . . . As we’ve seen, when it comes to determining

whether a punishment is unconstitutionally cruel because of the pain

involved, the law has always asked whether the punishment

“superadds” pain well beyond what’s needed to effectuate a death

sentence. And answering that question has always involved a

comparison with available alternatives, not some abstract exercise in

“categorical” classification. . . . To determine whether the State is cruelly

superadding pain, our precedents and history require asking whether

the State had some other feasible and readily available method to carry

out its lawful sentence that would have significantly reduced a

substantial risk of pain.

Bucklew, 139 S. Ct. at 1126–27 (citations and internal quotation marks omitted);

see also Nance, 142 S. Ct. at 2220 (repeating Bucklew’s “comparative assessment”

requirement).

The Eighth Circuit departed from this Court’s comparative standard by failing to

consider Petitioners’ alternative execution methods—indeed, in the context of the

new-trial motion, by saying that evidence concerning an alternative is “not

material.” App 6a. The question is not, as the Eighth Circuit put it, simply whether

there is a scientific consensus about the ceiling effect of midazolam. The question is

whether a risk of pain inherent in the midazolam protocol is substantial when

compared to Petitioners’ proposed alternatives. Perhaps an assessment of

alternatives would not be required if an execution method poses no risk of pain. But

no one would credibly say—and the Eighth Circuit did not say—that the midazolam

protocol carries no risk of pain.

Say that a prisoner presented a perfectly painless method of execution as a

feasible and available alternative to the State’s current method (whatever that

30

current method may be). Under the Eighth Circuit’s test, the alternative would be

“not material” unless there is a scientific consensus that the current method causes

pain. But under this Court’s test, the State would be required to implement the

perfectly painless method, because continued use of the current method would

superadd pain that State officials could knowingly avoid.

In sum, the important question under the Eighth Amendment is not whether a

scientific consensus has cohered around a State’s method of execution. The

important question, per this Court’s precedent, is whether adoption of an

alternative would substantially reduce a risk of severe pain. A court cannot make

that determination without the sort of comparative risk assessment that the Eighth

Circuit omitted here.

C.

The Eighth Circuit has cut off a class of claim that this Court has explicitly

kept open.

The upshot of the Eighth Circuit’s “scientific consensus” standard is to eliminate,

for all practical purposes, method-of-execution challenges under the Eighth

Amendment. That too contradicts this Court’s guidance that a prisoner’s burden to

challenge his execution method should be kept “within reasonable bounds.” Nance,

142 S. Ct. at 2220. A prisoner’s burden is significant, but it is not the impossible one

that the Eighth Circuit’s opinion imposes.

Judge Kelly’s concurrence speaks pointedly to the impact of the “scientific

consensus” standard in the context of the midazolam protocol. There is unlikely to

ever be “scientific consensus” on the precise ceiling effect of midazolam—the proof

the Eighth Circuit called for here. To produce a definitive study on how 500 mg

31

midazolam affects humans would be unethical. The inquiry has zero utility beyond

the realm of capital punishment. Midazolam is not used in the medical field to

provide anesthesia, as Dr. Antognini attested. No scientist will ever produce the

sort of definitive study the Eighth Circuit demands.

Sensibly, then, this Court has not required one. Determination of whether there

is “a substantial risk of severe pain” must be “based on evidence presented to the

court.” Glossip, 576 U.S. at 882. Petitioners presented a significant amount of

evidence geared toward whether midazolam will render them insensate to pain. It

was the job of the district court and the Eighth Circuit to judge that evidence, not to

abdicate to an absence of “scientific consensus.”

Though Judge Kelly’s concurrence focuses on how the “scientific consensus” rule

affects challenges to the midazolam protocol, the Eighth Circuit’s opinion

undermines challenges to any method. Suppose that a State (as Tennessee has done

and South Carolina has attempted to do) brings back the electric chair—a practice

that found legal disapproval when it did not wither on its own. See State v. Mata,

745 N.W.2d 229 (Ne. 2008) (finding electric chair cruel and unusual); Bryan v.

Moore, 528 U.S. 1133 (2000) (dismissing challenge to electric chair in light of State’s

representation that petitioner’s death sentence would be carried out by lethal

injection). How would a prisoner challenge this method within the Eighth Circuit?

He would not be able to produce a definitive scientific study showing that the

electric chair causes suffering—no such study could be conducted. Naturally, the

proof would entail a battle of the experts. See Kathryn Casteel, Greenville News,

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“Final Testimony Day: Expert Witnesses Debate Pain, Consciousness in SC

Execution Protocols,” Aug. 4, 2022, available at https://bit.ly/3ewQ41j. But experts

battling—whatever their credibility—implies a lack of scientific consensus. So

rather than weigh and judge the evidence, a court need only cite contrary opinions

to dismiss the challenge. And the court certainly need not consider any less painful

method that the prisoner presents. Without a definitive showing that the electric

chair causes severe pain, any alternative is “not material.”

Eliminating methods challenges goes against what this Court said in Nance. The

issue there was whether a prisoner must plead an alternative method that is

already written in state statute to avoid moving the claim from § 1983 to habeas. As

with application of the “scientific consensus” standard, moving the claim to habeas

would not have literally eliminated such challenges, but it would have done so for

all practical purposes because of the numerous procedural bars in habeas. The

Court declined to cut off these claims and instead emphasized that prisoners do not

bear an impossible burden when challenging an execution method. “[A]llowing an

inmate to propose a method not authorized by the State keeps his burden within

reasonable bounds.” Nance, 142 S. Ct. at 2220 (internal quotation marks omitted).

The Court refused to interpret the law in a manner that would eliminate methods

challenges: “On the Eleventh Circuit’s view, Georgia law effectively prevents an

inmate like Nance from putting forward an out-of-state alternative. And Georgia

law thereby precludes the kind of method-of-execution claim this Court told

prisoners they could bring.” Id. at 2225.

33