Amicus Curiae Brief — Warner v. Gross, 135 S. Ct. 1173 (2015) (No. 14-7955)

Supreme Cuurn, US.

FiLEW

APR 14 2015

No. 14-7955 | OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

RICHARD E. GLOSSIP, et al.,

Petitioners,

Us.

KEVIN J. GROSS, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

(916) 446-0345

briefs@cjlf.org

_ Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. Does a Federal District Court correctly deny an

injunction against execution of a state prisoner in a

§ 1983 action when it finds, based on substantial evi-

dence, that the plaintiffs have failed to establish that

the protocol to be used is “sure or very likely” to cause

severe pain?

2. Is the standard for a stay set forth in Baze v. Rees

narrowly limited to execution protocols nearly identical

to the one at issue in that case, or does it apply to any

execution protocol alleged to create a risk of pain but

not designed to cause pain?

3. When challenging an execution method alleged to

create a risk of severe pain, must the prisoner show that

there is an available alternative with a substantially

lower risk?

(i)

TABLE OF CONTENTS

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CEE ccccccccccceceeccescceceusi v

Interest of amicus curiae ............-..2s+005- 1

Summary of facts and case ............-........ 2

I. c cuddeddéeesececeseedeee 4

DE 6466666 604660606b000e bbe 60bNaueeees 6

I

The Eighth Amendment does not require completely

painless executions or “best practices,” but a “risk”

claim must consider alternatives............... 6

A. Not torturous, but not painless ........... 6

B. The alternative problem ................ 8

i EE oon 06 Odin bese0ss0sdbouns 11

D. Baze, risk, and alternatives ............. 14

ii

Any relief granted in a federal court should be the

least intrusive possible, with injunction of the

execution only as a last resort ................ 20

It

The United States must not allow its justice to be

obstructed by an antidemocratic and largely foreign

GE wo ce ccessccecdusebessusceqecéeods 22

fits

iv

IV

The national consensus is that capital punishment

serves an important function and needs to be

enforced , 28

0s Sars alas) ee eee we ee

TABLE OF AUTHORITIES

Cases

Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520,

170 L. Ed. 2d 420 (2008) ... «. . Passim

Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970,

128 L. Ed. 2d 811 (1994) .. ..... .... 15, 16, 17

Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726,

33 L. Ed. 2d 346 (1972) , a 28

Gomez v. Fierro, 519 U.S. 918, 117 S. Ct. 285,

136 L. Ed. 2d 285 (1996) ............... : oe

Gomez v. U. S. District Court, 503 U. S. 653,

112 S. Ct. 1652, 118 L. Ed. 2d 293 (1992) co.

Graham v. Collins, 506 U.S. 461, 113 S. Ct. 892,

122 L. Ed. 2d 260(1993) .... . . “4 -— wae

Grant v. State, 58 P. 3d 783

(Okla. Crim. App. 2002) = <a)

Gray v. Lucas, 710 F. 2d 1048 (CA5 1983) .. 9

Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909,

49 L. Ed. 2d 859 (1976) .. . 28,32

Habeas Corpus Resource Center v. Dept. of Justice,

No. 4:13-cv-04517-CW, 2014 U.S. Dist. LEXIS

109532 (ND Cal., Aug. 7,2014). .. .. , 29

Hill v. McDonough, 547 U.S. 573, 126 S. Ct. 2096,

165 L. Ed. 2d 44 (2006) , 11, 12, 13, 21

Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995,

117 L. Ed. 2d 156 (1992) ‘ees ee Oe

In re Kemmler, 136 U. S. 436, 10 S. Ct. 930,

34 L. Ed. 519(1890) ... ...... io aes wt oo

In re Ohio Execution Protocol Litig.,

994 F. Supp. 2d 906 (S.D. Ohio 2014). ... 31

Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910,

166 L. Ed. 2d 798 (2007) . ... ..... .. 18,14

Kansas v. Cheever, 571 U.S. __, 134 S. Ct. 596,

187 L. Ed. 2d 519 (2013) 30

Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516,

165 L. Ed. 2d 429 (2006) .. ... iw wb eeekes 30

Lopez v. Smith, 574 U.S. __, 135 S. Ct. 1,

190 L. Ed. 2d 1 (2014) : 29

Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117,

158 L. Ed. 2d 924 (2004) ......... 11, 12, 20, 21

Nichols v. United States, 511 U.S. 738,

1148S. Ct. 1921, 128 L. Ed. 2d 745 (1994). .. .14

Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842,

168 L. Ed. 2d 662 (2007) wan Y |) ee

People v. Davis, 43 N. Y. 2d 17, 371 N. E. 2d 456

(1977) ee ; ;: nae’ i wo eae

People v. Taylor, 9 N. Y. 3d 129, 878 N. E. 2d 969

(2007) ae. ee . ae ee Oe ee

Roper v. Simmons, 543 U. 8S. 551, 125 S. Ct. 1183,

161 L. Ed. 2d 1 (2005) oy : . 23

Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598,

46 L. Ed. 2d 561 (1976) .. ...... . ae ee! ace

State v. Gee Jon, 46 Nev. 418, 211 P.676(1923) . 8

Stewart v. LaGrand, 526 U.S. 115, 119S. Ct. 1018,

143 L. Ed. 2d 196 (1999) ..... ...........4... 9

Warmer v. Gross, 135 S. Ct. 824, 190 L. Ed. 2d 903

(2015) . . — are . 3,16

Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed. 345

(1879) , S gh able ae be aber’ es x 8

United States Statutes

18 U.S. C. $3626 ee fs i + yee

18U.S.C.§3771 .. . ... = 21

28 U.S. C. $2254 . bk - 4 :, a:

28 U.S.C.§2265 , a ee 29

28 U.S. C.§2283 .. - , oy :, 20

42U.S.C.§$1983. .. (coe ie

Act of Mar. 2, 1793, 1 Stat. 334-335 , . 20

State Statute

N. Y. Crim. Proc. L. § 400.27 i: is oh oe

Secondary Authorities

American Veterinary Medical Association, Guidelines

for Euthanasia of Animals (2013 ed.) . so. ae

Anders Behring Breivik: Norway Court Finds Him

Sane, BBC News (Aug. 24, 2012),

http://www.bbc.com/news/world-europe-

19365616 .. . ..... : kaw bea enees SW

Vili

Ballotpedia, California 2012 Ballot Propositions,

http://ballotpedia. org/California_ 2012 ballot_

ns o e6 » ebswebeedes te «eee

Berman, Texas Finds More Lethal Injection Drugs

After All, The Washington Post (Mar. 25, 2015),

http://www.washingtonpost.com/news/post-nation/

Pont aaa -injection-

drugs-after-all/ 31

Cal. Secretary of State, Official Voter Information

Guide, California General Election (2012) .. .29

Declaration of Independence (1776) .... 22, 23

DeLaTorre, Doney, and Broyles, Oklahoma Inmate

Said His ‘Body Was on Fire’ Prior to Being

Executed for 1997 Murder and Rape, KFOR (Jan.

16, 2015), http://kfor.com/2015/01/15/oklahoma-

inmate-said-his-body-was-on-fire-prior-to-be-

executed-for-1997-murder-and-rape/ . .. .. 3

Deng & Lithwick, Liberal Guilt: In the Push to

Abolish the Capital Punishment, Opponents of the

Death Penalty Have Made It Less Safe, Slate,

(May 9, 2014), http://www.slate.com/articles/news _

and_politics/jurisprudence/2014/05/death_penalty_

in_america_how_the_push_to abolish_

capital punishment_has.html .. . ... . 27

Gibson & Lain, Death Penalty Drugs and the

International Moral Marketplace

\rev. Feb. 26, 2015), Georgetown L. J., vol. 103

(forthcoming), http://papers.ssrn.com/sol3/

papers.cfm7?abstract_id=2524124 . .. . 24, 25,26

Hands Off Cain and Reprieve, Lethal Trade:

How an Abolitionist Country is Collaborating in

Putting People to Death in the United States,

Hands Off Cain (Dec. 2, 2010),

http://www.handsoffcain.info/chisiamo/

index.php?idtema=13316650 .... .. 26

International Covenant on Civil and Political Rights,

Dec. 19, 1966, 999 U. N. T.S. 171

(entered into force Mar. 23,1976) . 23

Lopez, Why Utah Is Bringing Back the Firing Squad

for Executions, Vox (as of Mar. 27, 2015),

http://www.vox.com/2015/3/27/8301357/

Be

Lundbeck Divests Several Products in the US As Part

of Long-Term Business Strategy, H. Lundbeck A/S,

Press Release (Dec. 22, 2011),

http://investor.lundbeck.com/

releasedetail.cfm? ReleaseID=635094 ; 26

National Conference of State Legislatures,

Inside the Legislative Process (1998),

http://www.ncsl. < icra

ILP/98Tab6Pt3.pdf... ... a

R. Rhoades, The Humane Society of the United States

Euthanasia Training Manual (2002). . . . 26

Scheidegger, Americans’ Support for Death Penalty

Stable, Crime and Consequences Blog (Oct. 23,

2014), http://www.crimeandconsequences.com/

crimblog/2014/10/americans-support-for-

Dn <¢ « «4 © d66 wens wo 8 30

Smyth, Public Defender Accused of Coaching Dennis

McGuire to Exaggerate Suffocation During

Execution, Associated Press (Jan. 27, 2014),

http://www.cleveland.com/nation/index.ssf/2014/01/

public_defender_accused_of_coa.html] a 4

U. S. Department of Justice, Bureau of Justice

Statistics, Capital Punishment, 2013—

Statistical Tables 1 (2014) 29

United States Mission to the OSCE, Response to the

European Union’s Statement on the Death Penalty

(May 14, 2009), http://www.osce.org/

pc/37216?download=true —

IN THE

Supreme Court of the United States

RICHARD E. GLOSSIP, et al.,

Petitioners,

US.

KEVIN J. GROSS, et al.,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)’ is a

non-profit California corporation organized to partici-

pate in litigation relating to the criminal justice system

as it affects the public interest. CJLF seeks to bring the

constitutional protection of the accused into balance

with the rights of the victim and of society to rapid,

efficient, and reliable determination of guilt and swift

execution of punishment.

_

Both parties have filed blanket consents to the filing of amicus

briefs.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person other than amicus curiae CJLF made a monetary

contribution to its preparation or submission.

This case is part of an effort to obstruct the execu-

tion of well-deserved sentences for the worst murderers,

even when there is no doubt of guilt and even when the

penalty determination has been thoroughly reviewed

and found to be proper. Such obstruction is contrary to

the interests of victims of crime that CJLF was formed

to protect.

SUMMARY OF FACTS AND CASE

Four Oklahoma murderers sought a preliminary

injunction against the use of Oklahoma’s lethal injec-

tion protocol. J. A. 112. All four committed severely

aggravated murders for which death is clearly a just

punishment. Charles Warner anally raped and mur-

dered the eleven-month-old daughter of his girlfriend.

Richard Glossip hired another employee to beat their

employer to death with a baseball bat. Benjamin Cole

murdered his nine-month-old daughter by bending her

in half backward, snapping her spine. J. A. 113-114.

John Grant was already in prison for a de facto life

sentence, and thus “judgment proof” from any sentence

but death, when he murdered a prison food service

supervisor, stabbing her 16 times with a “shank.”

Grant v. State, 58 P 3d 783, 11 2-6 (Okla. Crim. App.

2002). As of the date of the Court of Appeals opinion,

“all four of the plaintiffs ha[d) exhausted their state

and federal court remedies and the State of Oklahoma

ha[d] established specific execution dates for each of

them.” J. A. 114.

Oklahoma for many years used a three-drug protocol

for executions, with a barbiturate for the first drug, like

the protocol upheld in Baze v. Rees, 553 U. S. 35, 44

(2008). When thiopental became unavailable, the state

substituted another barbiturate, pentobarbital, but

when that drug also became unavailable the state

substituted midazolam, “a sedative in the benzodiaz-

epine family of drugs.” J. A. 114-115. The present case

is primarily a challenge to that substitution. After

hearing expert testimony from both sides, the District

Court denied the preliminary injunction.

“T conclude on the basis of the evidence before me

that plaintiffs have failed to establish that proceed-

ing with the execution of these plaintiffs on the

basis of the revised 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,’ in the words of the Su-

preme Court at page 50 of the Baze decision.” J. A.

96

The Tenth Circuit affirmed. J. A. 111-112. This

Court denied a stay of execution for Charles Warner by

a 5-4 vote, see Warner v. Gross, 135 S. Ct. 824, 190

L. Ed. 2d 903 (2015), and Warner was executed.

Petitioners cite a press report that Warner said “my

body is on fire.” Brief for Petitioners 22. They omit the

essential fact that a media witness also reported that

Warner said this “before the three-drug cocktail was

administered.” DeLaTorre, Doney, and Broyles,

Oklahoma Inmate Said His ‘Body Was on Fire’ Prior to

Being Executed for 1997 Murder and Rape, KFOR (Jan.

16, 2015) (emphasis added).” That report continues,

“His last words before the drugs took full effect

were ‘I’m not afraid to die, we’s [we are} all gonna

die.’

2. http://kfor.com/2015/01/15/oklahoma-inmate-said-his-body-

was-on-fire-prior-to-be-executed-for-1997-murder-and-rape/ (all

Internet materials as visited April 8, 2015).

“Broyles said it did not appear Warner was in pain.

He never raised his head off the gurney and did not

convulse the way Lockett did last April.

“Sean Murphy with the Associated Press said

afterwards, ‘It appeared the sedative worked.’ ”

Warner’s pre-injection “on fire” exclamation is not

evidence that the Oklahoma protocol causes extreme

pain. It is further evidence that there is a campaign of

deception that extends to soliciting condemned inmates

to fake agony in their last moments, and some are going

along with it, though some are not. See Smyth, Public

Defender Accused of Coaching Dennis McGuire to

Exaggerate Suffocation During Execution, Associated

Press (Jan. 27, 2014).°

This Court granted certiorari on January 23, 2015.

On January 28, at the request of the State, the Court

stayed executions using midazolam.

SUMMARY OF ARGUMENT

The Eighth Amendment does not allow torturous

methods of execution but also does not require com-

pletely painless ones. The Wilkerson/Kemmiler rule

does not require an available alternative but only

applies to methods that are intended to or certainly do

cause extreme pain. The Baze standard is adapted from

th. prison conditions “deliberate indifference” cases

and applies whenever the claim relates to a risk of pain.

The Baze standard requires threshold showings of both

severity and risk of pain, and it requires comparison to

available alternatives.

3. http://www.cleveland.com/nation/index.ssf/2014/01/public_def

ender_accused_of_coa.html.

When relief is required, the Prison Litigation

Reform Act of 1995 requires that it be the least intru-

sive possible. In the context of a method-of-execution

claim, an order requiring a specific, available alterna-

tive method instead of the state’s proposed method is

less intrusive than one that simply bars use of the

state’s method. Without an approval of a specified

alternative, the state would have to start over, possibly

delaying justice for years. In addition, it is doubtful

whether a federal court in a § 1983 action has jurisdic-

tion to issue an order that amounts in practice to an

indefinite stay of execution. Nelson and Hill suggest

that such an order may require conversion to a habeas

petition, with all the limitations imposed on that form

of action.

The present case has arisen only because of a

restriction on the distribution of the preferred drugs for

lethal injection, caused primarily by European compa-

nies under pressure from European governments. The

people of the United States are entitled to decide

through the democratic process whether to have capital

punishment. We must not allow ourselves to be pres-

sured and manipulated from Europe. A rule of law that

says a state cannot proceed without the optimum drugs,

when those drugs have been cut off from abroad, would

facilitate an assault on our sovereignty and our democ-

racy.

The consensus that is most relevant in this case is

the consensus of the American people that capital

punishment has an important place in our system of

criminal justice and needs to be enforced. The fact that

most states have not yet needed to select a replacement

for barbiturates in their lethal injection protocols,

because so far they have been able to obtain them or

because executions are stalled for other reasons, does

not establish a “consensus” that midazolam is an

unacceptable substitute.

ARGUMENT

I. The Eighth Amendment does not

require completely painless executions or

“best practices,” but a “risk” claim must

consider alternatives.

A. Not Torturous, But Not Painless.

To many Americans, the amount of hand-wringing

over the risk of pain felt by murderers during execution

seems very strange. For example, Petitioners and

supporting amici make much of the fact that midazo-

lam is not considered a proper drug to use as the sole

anesthetic in surgery. See Brief for Petitioners 13;

Brief of Sixteen Professors of Pharmacology as Amici

Curiae 20. John and Jane Public would likely say, “So

what? This isn’t supposed to be a medical procedure.

It’s supposed to be punishment.”

By insisting that the state must use a drug that puts

the inmate in a “comalike” state, see Brief for Petition-

ers 26, Petitioners are arguing in essence that a mur-

derer is entitled to a completely painless execution.

The Eighth Amendment requires no such thing, and

Baze v. Rees, 553 U.S. 35 (2008), did not change that.

There is a wide gulf between torturous and painless,

and forbidding one does not equal requiring the other.

An amicus supporting Petitioners has again traced

the familiar history of the evolution of methods of

execution in the United States. See Brief for the Louis

4. This brief is labeled as being in support of neither party. It

actually attempts to support Petitioners.

Stein Center for Law and Ethics at Fordham University

School of Law as Amicus Curiae (“Fordham Brief”); see

also Baze, 553 U. S., at 42-43 (summarizing same

history). The history does indeed show that our society

has made an effort to make executions as painless as

feasible. It does not follow, though, that executions

must be completely painless. On the contrary, methods

of execution continued to be used even though they

were recognized to often be painful. Hangings contin-

ued throughout most of the nineteenth century, even

though they were known to sometimes result in “slow

strangulations.” See Fordham Brief 5.

Wilkerson v. Utah, 99 U. S. 130 (1879),

territorial case where the Eighth Amendment naiiel

directly, even before “incorporation.” “Cruel and

unusual punishments are forbidden by the Constitu-

tion, but the authorities referred to are quite sufficient

to show that the punishment of shooting. . is not

included in that category within the meaning of the

eighth amendment.” I/d., at 134-135. No one could

think that shooting is painless, and the Wilkerson Court

did not require painlessness.° The constitutional

prohibition was directed at “punishments of torture.”

Id., at 136. Electrocution was adopted in the belief that

it was a “more humane” method than the prior meth-

ods, primarily hanging. See In re Kemmler, 136 U. S.

436, 447 (1890). That is not to say it was completely

painless or that painlessness was constitutionally

required.

5. Utah has recently reinstated the firing squad as an alternative,

drawing surprising support from well known death penalty

opponent Deborah Denno. See Lopez, Why Utah Is Bringing

Back the Firing Squad for Executions, Vox (as of Mar. 27,

2015), http://www.vox.com/2015/3/27/8301357/utah-death-

penalty.

“Punishments are cruel when they involve torture

or a lingering death; but the punishment of death is

not cruel, within the meaning of that word as used

in the Constitution. It implies there something

inhuman and barbarous, something more than the

mere extinguishment of life.”° Ibid.

Pain is a part of life. All of us experience it at some

time. Some people choose to endure pain as the price of

participating in athletic activity. People often volun-

tarily endure pain during medical treatment or while

recovering from it. People may choose to endure pain

from medical conditions or in childbirth as preferable to

taking the drugs that would be needed to be pain-free.

We should not be so squeamish as to recoil in horror at

the possibility that someone who has intentionally

inflicted enormous suffering on innocent others might

suffer some pain as an incidental consequence of

receiving the punishment he richly deserves for his

crime. The Court’s decision in this case should perma-

nently put to rest any notion that a murderer is consti-

tutionally entitled to a completely painless death. See

Baze, 553 U. S., at 104 (Thomas, J., concurring in the

judgment) (“anesthetized”). Extreme or prolonged pain

is the concern here, not any pain at all.

B. The Alternative Problem.

The idea that methods of execution must be judged

relative to available alternatives is a relatively recent

development, and it came from the defense side. The

gas chamber had been regularly upheld against Eighth

Amendment challenge from its introduction through

the 1980s. See State v. Gee Jon, 46 Nev. 418, 435-437,

6. To be sure, Kemmiler’s discussion of the requirements of the

Eighth Amendment is dictum. The holding is that the Eighth

Amendment does not apply to a state case. Id., at 447-448.

211 P. 676, 681-682 (1923); Gray v. Lucas, 710 F. 2d

1048, 1057-1061 (CA5 1983). In 1992, as California

prepared to carry out its first post-Furman execution,

the Ninth Circuit stayed the execution on an Eighth

Amendment challenge to the gas chamber. This Court

vacated the stay on the ground that the inmate, Robert

Alton Harris, had abusively delayed a known claim to

the last minute. Gomez v. U. S. District Court, 503

U. S. 653, 653-654 (1992) (per curiam), but two dissent-

ing Justices agreed with the claim on the merits.

The Gomez dissenters agreed with the inmate’s

argument that “in light of the availability of more

humane and less violent methods of execution, Harris’

claim has merit.” 503 U.S., at 654 (Stevens, J., dissent-

ing). The alternative, endorsed by “numerous medical,

legal, and ethical experts,” id., at 656, was, of course,

lethal injection, exactly the method attacked in Baze v.

Rees. See Baze, 553 U.S., at 104 (Thomas, J., concur-

ring in the judgment).’

In the abstract, it is easy to say that states should

move to methods inflicting less pain or creating less risk

of severe pain as improved methods become available.

As the history noted above indicates, they have gener-

ally done that. Imposing such a requirement as a

constitutional mandate, however, would severely distort

the democratic process of deciding whether a state will

have capital punishment.

Enacting or repealing a statute is not easy, by

design. Most states follow the federal model where

enacting a statute requires majorities in both houses of

the state legislature plus concurrence of the governor or

7. Later challenges to the gas chamber after the lethal injection

alternative was made available were rejected in Gomez v.

Fierro, 519 U. S. 918 (1996) (grant, vacate, remand) and

Stewart v. LaGrand, 526 U. S. 115, 119 (1999) (waiver).

10

2 two-thirds majority in both houses to override a veto.

See National Conference of State Legislatures, Inside

the Legislative Process 6-33 (1998).° Once the lawmak-

ing authorities have come to this level of agreement, the

decision should remain in place unless and until there

is the same level of agreement to change it. Repealing

a statute therefore requires the same process as enact-

ment. In the legislative process, blocking legislation is

far easier than repealing legislation. If a state is

constitutionally required to enact new legislation to

maintain an existing law, then a determined minority

can effectively repeal a law merely by blocking the

maintenance bill in one house or convincing the gover-

nor to veto it.

New York provides an example. Murder in the first

degree is a capital offense by statute in New York and

has been throughout the modern era, see N. Y. Crim.

Proc. L. § 400.27, but opponents of the death penalty

have been able to nullify the law most of that time by

blocking the legislation to fix real or fabricated prob-

lems with it. See People v. Davis, 43 N. Y. 2d 17, 32,

371 N. E. 2d 456, 463 (1977) (1974 mandatory law);

People v. Taylor, 9 N. Y. 3d 129, 156-157, 878 N. E. 2d

969, 984-985 (2007) (Smith, J, concurring) (precedent

striking down 1995 law was wrongly decided, but not

overruled as a matter of stare decisis). Such repeal-by-

deadlock would become a frequent occurrence if states

were required to regularly enact new execution meth-

ods from time to time, allowing opponents to effectively

repeal laws that they are unable to actually repeal

through the regular democratic process. And that is

precisely the idea. Cf. Baze, 553 U.S., at 71 (Alito, J.,

concurring) (warning of de facto ban by litigation

8. http://www.ncsl.org/documents/legismgt/ILP/98Tab6Pt3. pdf.

11

gridlock); id., at 105 (Thomas, J., concurring in the

judgment).

Making the “best practices” a constitutional man-

date could actually inhibit the adoption of improve-

ments. If opponents of the death penalty believe that

they have a chance of getting a state’s law struck down

by blocking a new, better, more humane method, they

might well oppose it for that reason. Indeed, the

present case arises precisely because of such a cynical

blockage, though it occurs in the commercial realm

rather than the legislative one. Oklahoma is forced to

use the suboptimum drug because and only because

opponents of the death penalty have blocked the

optimum one.

C. Nelson and Hill.

Yet alternatives are relevant under Baze. The case

Petitioners cite as rejecting a need to show an alterna-

tive does not support their argument.

The switch to lethal injection seemed to eliminate

method-of-execution litigation for about a decade, but

then it was back as the formerly preferred alternative

came under attack. One preliminary question that

needed to be resolved was whether a habeas corpus

petition or a civil rights suit under 42 U. S. C. § 1983

was the correct procedure. This procedural question,

not the substantive Eighth Amendment question, was

at issue in Nelson v. Campbell, 541 U. S. 637, 639

(2004) and Hill v. McDonough, 547 U. S. 573, 585

(2006).

In Nelson, an inmate with compromised veins

challenged the state’s plan to use a “cut down” proce-

dure as a last resort to gain venous access. 541 U.S., at

641-642. The Court held that this particular claim, not

“method-of-execution claims generally,” could proceed

12

as a § 1983 action. Id., at 644. The Court emphasized

that “the gravamen of petitioner’s entire claim is that

use of the cut-down would be gratuitous.” Id., at 645

(emphasis in original). If on remand the challenged

procedure turned out to actually be necessary to

execute the judgment, the holding that the case could

proceed under § 1983 rather than habeas would not

apply. /d., at 646.

Significantly, the Nelson Court noted that a stay of

execution, initially requested by Nelson, undermined

his position on the applicability of § 1983. Relief that

goes beyond prohibiting the specific practice complained

of to prevent the execution altogether raises doubt as to

whether the case can proceed as a civil rights action and

potentially conflicts with the requirement of the Prison

Litigation Reform Act that relief extend no further than

necessary. /d., at 648. See Part II, infra, at 20-22.

Hill v. McDonough, which Petitioners rely on

heavily, see Brief for Petitioners 48-49, was also a

habeas versus §1983 case. See 547 U. S., at 576.

Essential to the holding that the case could proceed

under § 1983 was the fact that “respondents do not

contend, at least to this point in the litigation, that

granting Hill’s injunction would leave the State without

any other practicable, legal method of executing Hill by

lethal injection.” Jd., at 580 (emphasis added).

The Hill Court did decline the suggestion of amicus

United States to create a special pleading requirement

for all method-of-execution challenges under § 1983

that “the prisoner [must)} identifly] an alternative,

authorized method of execution.” Jd., at 582. However,

Petitioners place more weight on this holding than it

can bear. The Court’s reluctance to impose a special

pleading requirement through case law when such

requirements are more properly established by rule, see

ibid., does not mean that the fact at issue is irrelevant

13

to either the substance of claim or the proper form of

action. Quite the contrary, Hill says the existence of an

alternative is quite relevant to the latter point. “If the

relief sought would foreclose execution, recharacteriz-

ing a complaint as an action for habeas corpus might be

proper.” 547 U.S., at 582.° Of course “Baze did not

overrule” Hill. See Brief for Petitioners 28, 51. There

was no reason to do so. The cases addressed different

questions. Hill addressed jurisdiction to proceed under

§ 1983 rather than habeas and whether special pleading

requirements apply, while Baze addressed the merits of

the underlying Eighth Amendment claim, an issue Hill

expressly disclaimed any opinion on. See 547 U. S., at

585.

Petitioners rely on Jones v. Bock, 549 U.S. 199, 213

(2007), for their expansive interpretation of Hill, Brief

for Petitioners 28, but in context Jones’s citation of Hill

cuts the other way. The question the Court was consid-

ering there is succinctly stated at the beginning of Part

II of the opinion.

“There is no question that exhaustion is mandatory

under the PLRA and that unexhausted claims

cannot be brought in court. [Citation.] What is less

clear is whether it falls to the prisoner to plead and

demonstrate exhaustion in the complaint, or to the

defendant to raise lack of exhaustion as an affirma-

tive defense.” Id., at 211.

This is all about who has to raise in the pleadings a fact

of unquestioned importance to the decision. That is the

9. Recharacterization as habeas would invoke limitations as to

exhaustion if the inmate had not presented his claims to the

state courts and deference if he had, see 28 U.S. C. §§ 2254(b),

(d), such that it would be unlikely he could prevail in federal

court. The successive petition limitation might also bar some

petitions. See Hill, supra, at 576.

14

context in which Jones cites Hill, right after it says that

discrimination plaintiffs do not have to “specifically

allege the elements of a prima facie case of discrimina-

tion.” Jd., at 213. They still must establish the ele-

ments to prevail, obviously. A pleading requirement is

not a rule of substantive law.

Nothing in Nelson or Hill, therefore, negates the

relevance of the existence of “other legal, practicable

method[s]” as a factor in the substance of an Eighth

Amendment challenge to a method of execution. The

gas chamber cases did not address that issue on the

merits. See supra, at 9, and n. 7. Baze v. Rees was

therefore the first case in this Court in the modern era

to squarely present the substantive Eighth Amendment

question.

D. Baze, Risk, and Alternatives.

In Baze, unlike previous method of execution

challenges, the method was concededly painless as

designed. See Baze, 553 U. S., at 41 (plurality opinion).

Under Wilkerson and Kemmler, that would be the end

of the case, as only intentionally torturous methods

violate the Eighth Amendment. Justice Thomas, joined

by Justice Scalia, concurring in judgment, would so

hold. See id., at 94, 102. However, the plurality

opinion allowed for the possibility of an Eighth Amend-

ment violation based on a risk of unintentionally

inflicted pain.

“When there is no majority opinion, the narrower

holding controls.” Panetti v. Quarterman, 551 U. S.

930, 949 (2007) (citing Marks v. United States, 430

U.S. 188, 193 (1977)). In some cases this rule is “more

easily stated than applied,” Nichols v. United States,

511 U.S. 738, 745 (1994), but in this case there appears

to be general agreement that the plurality opinion is

15

controlling in Baze. See J. A. 123-124, n. 6 (Court of

Appeals opinion, collecting cases).’°

The Baze plurality standard requires “a demon-

strated risk of severe pain” that is “substantial when

compared to the known and available alternatives.”

553 U.S., at 61; see also id., at 52. Amicus submits

that severity, degree of risk, and alternatives are

conjunctive requirements that apply to all claims of

unintended, or at least unknowing, pain in execution.

The first question is what kinds of claims this three-

part standard applies to. That is, what are the

“grounds such as those asserted here,” referred to by

the Baze plurality. See 553 U.S., at61. After review-

ing the Wilkerson and Kemmler decisions and their

formulation of the intentional] infliction of pain “super-

added” to death as additional punishment, see id., at

48-49, the plurality turned to cases regarding civil

liability for injuries to prisoners for recognition of an

additional Eighth Amendment prohibition against

“subjecting individuals to a risk of future harm.” See

id., at 49-50 (citing Helling v. McKinney, 509 U.S. 25

(1993) and Farmer v. Brennan, 511 U.S. 825 (1994)).

In this line of cases, we see that different rules apply

based on the mental state of the prison officials. If

injury is caused “maliciously and sadistically for the

very purpose of causing harm,” then liability can be

imposed even if the use of force occurs while putting

down a prison disturbance, and there is no threshold

requirement of a serious injury. See Hudson v.

McMillian, 503 U. S. 1, 6-7 (1992) (internal quotation

marks omitted). In contrast, a claim of “deliberate

indifference” to a risk requires a “substantial risk of

serious harm,” Farmer v. Brennan, 511 U.S. 825, 834

10. All further Baze citations are to the plurality opinion unless

otherwise indicated.

16

(1994), and such claims are not available at all for uses

of force that “are typically made in haste, under pres-

sure, and without the luxury of a second chance.” /d.,

at 835 (citations and internal quotation marks omitted).

Farmer refers to the mens rea categories of the criminal

law, defining “deliberate indifference” as less than

“purpose or knowledge,” id., at 836, and equivalent to

“subjective recklessness as used in the criminal law.”

Td., at 839-840.

The Baze plurality’s adoption of the Helling/Farmer

standards suggests where to draw the line on its appli-

cation. If a method is adopted with the purpose of

causing pain, that is an Eighth Amendment violation

under Wilkerson and Kemmler. The existence of

alternatives is irrelevant for such a claim. See Baze,

553 U. S., at 102 (Thomas, J., concurring in the judg-

ment) (no “comparative analysis” in Wilkerson and

Kemmler). From Farmer’s reference to “purpose or

knowledge” together, we can infer that a state’s method

of execution would similarly be unconstitutional! if it

were known to cause extreme pain without a need to

consider the availability of alternatives. See Warner v.

Gross, 135 S. Ct. 824, 826, 190 L. Ed. 2d 903, 906

(2015) (Sotomayor, J., dissenting) (“burned alive”);

Brief for Petitioners 47-48. It is when we move from

purpose to cause pain or knowledge that a method will

cause extreme pain into claims of deliberate indiffer-

ence to a risk it will do so that alternatives become

important.

The requirement to consider available alternatives

also comes from root Eighth Amendment principles.

There is no dispute in these cases that the Eighth

Amendment only prohibits unnecessary pain. See Baze,

553 U.S., at 114 (Ginsburg, J., dissenting); Warner, 135

S. Ct., at 828, 190 L. Ed. 2d, at 907 (Sotomayor, J.,

dissenting). Carrying out the well-deserved and thor-

17

oughly reviewed sentence for a horrific crime is neces-

sary. The extreme delays presently (and unnecessarily)

being incurred to review cases multiple times in multi-

ple courts, typically on claims having nothing to do with

actual guilt, are bad enough. For justice to be further

delayed, perhaps by years, for further litigation over

method of execution is a travesty. Given the necessity

to execute the judgment, a state is not causing unneces-

sary pain if it endeavors to execute the judgment via a

method that does not have a risk of severe pain that is

substantially greater than any other method available

to it.

The requirement that the pain in question be severe

is also worth noting here. The Baze plurality quotes

Farmer referring to a “substantial risk of serious harm”

and adopts that standard, 553 U. S., at 52, but in

applying the word “harm” in this standard it is impor-

tant to consider the different contexts of the cases. In

Farmer and the other cases involving injuries to per-

sons sentenced to incarceration, physical harm was

“simply not ‘part of the penalty’” to which the inmates

were sentenced. See Farmer, 511 U. S., at 834. Ina

method-of-execution case, the ultimate physical harm,

death, is the very sentence imposed. Further, from the

earliest days of the republic until fairly recently, it was

understood that some degree of pain in the execution of

the sentence was to be expected though not intended.

Baze did not need to go into the degree of pain in any

detail because the method in question was conceded to

be painless if it worked as designed, but the claimed

risk was of excruciating pain. See 553 U. S., at 113

(Ginsburg, J., dissenting). In stating that the standard

resolves a great many cases, the plurality says the

prisoner must show “a demonstrated risk of severe

pain.” Jd., at 61 (emphasis added). Thus there is a

threshold requirement for severity of pain. Cf. id., at

116 (Ginsburg, J., dissenting). A risk, however large

18

and however avoidable, of some lesser degree of pain

incident to an execution does not establish an Eighth

Amendment violation or entitle a prisoner alleging it to

a stay.

Do the Petitioners have a Wilkerson claim rather

than a Baze claim? That is, is midazolam so completely

incapable of preventing the extreme pain that an

unanesthetized person would feel upon the injection of

the second and third drugs that such pain is essentially

certain, and has this been established so clearly that the

Oklahoma officials can be charged with knowledge that

this result will follow, not merely deliberate indiffer-

ence to a risk that it might follow? The thrust of Part

III of their argument, see Brief for Petitioners 46-48,

seems to imply something along these lines. If that is

the argument, though, it appears to be unsupported by

the record in this case.

In their extensive discussion of the testimony

regarding the protocol at issue in this case, Petitioners

do not point to a single statement in any of their ex-

perts’ testimony or reports that this protocol would

necessarily result in extreme pain. See Brief for Peti-

tioners 9-19. Instead, they hammer over and over on

the minimally relevant testimony that midazolam is not

considered a sufficient anesthetic for surgery and

cannot induce a comalike state. See id., at 12, 13, 16.

Producing the degree of pain reduction or complete

elimination that doctors want for their patients is not

the test. It is not the Eighth Amendment requirement.

There is a wide gap, indeed a chasm, between the

standard of care for patients in medicine and the

minimal requirement that murderers not be tortured.

To say that midazolam is not “adequate anesthesia” in

a medical context, see id., at 13-14, is not to say that it

cannot meet the far lower standard of reducing any

19

pain experienced in execution to a level that is accept-

able for Eighth Amendment purposes.

In addition to the record in this case, the Court has

been presented with an amicus brief devoted entirely to

the properties of midazolam. See Brief for Sixteen

Professors of Pharmacology as Amici Curiae. This brief

similarly fails to address the actual question. It begins

with the assumption that a “comalike unconsciousness”

like that produced by thiopental is required, see id., at

9, and then proceeds to describe why midazolam cannot

provide that. The graph on page 19 indicates that the

effects of midazolam reach a plateau a bit short of full

anesthesia. That effect may not result in the complete

painlessness achievable with barbiturates, but is it

sufficient to avoid the extreme pain forbidden by the

Eighth Amendment? The brief does not say.

Neither in the District Court, nor as supplemented

in the Court of Appeals, nor as further supplemented in

this Court does the case for the Petitioners rise to the

level of a Wilkerson claim. The state is not using a

method for the purpose or with the knowledge that it

will result in a torturous level of pain. That leaves the

Baze standard, and again their case fails as already

described by the District Court, the Court of Appeals,

and the Brief for Respondents. Petitioners must show

that there is “a demonstrated risk of severe pain” that

is “substantial when compared to the known and

available alternatives.” Thiopental and pentobarbital

are not alternatives available to the State of Oklahoma

at present due to a concerted effort by opponents of the

death penalty to make them unavailable. The state

may constitutionally proceed with a method available to

it that is not substantially, demonstrably inferior to

other available methods.

20

II. Any relief granted in a federal court

should be the least intrusive possible,

with injunction of the execution only as

a last regort.

In the Prison Litigation Reform Act of 1995 (PLRA),

Congress limited the authority of federal courts to grant

relief in prison conditions cases, which include actions

“with respect to the effects of actions by govern-

ment officials on the lives of persons confined in prison

... ” 18U.5. C. §3626(g)(2). That language is broad

enough to include method-of-execution cases. See

Nelson v. Campbell, 541 U. S. 637, 650 (2004) (noting

PLRA applies). That Act provides,

“Prospective relief in any civil action with respect to

prison conditions shal] extend no further than

necessary to correct the violation of the Federal

right of a particular plaintiff or plaintiffs. The court

shall not grant or approve any prospective relief

unless the court finds that such relief is narrowly

drawn, extends no further than necessary to correct

the violation of the Federal right, and is the least

intrusive means necessary to correct the violation of

the Federal right. The court shall give substantial

weight to any adverse impact on public safety ar the

operation of a criminal justice system caused by the

relief.” 18 U.S. C. §3626(a)(1)(A) (emphasis add-

ed).

Preventing the execution of a valid judgment of a

state court is a particularly intrusive form of relieR’ As

far back as the Second Congress, there has been a

general prohibition of federal court stays of state court

proceedings. See Act of Mar. 2, 1793, ch. 22, §5, 1 Stat.

334-335. That prohibition is now codified as 28 U.S. C.

§ 2283. Although the civil rights private action statute,

42 U. S. C. § 1983, has been held to be an exception,

prudence still requires that federal injunctions interfere

21

with state criminal justice systems as little as possible.

See Rizzo v. Goode, 423 U.S. 362, 379-380 (1976).

Congress has further recognized that victims of

crime have a “right to proceedings free from unreason-

able delay.” 18 U. S. C. §3771(a)(7). Congress has

extended the explicit protection of this right to federal

habeas corpus petitions by state prisoners, id., subd.

(b)(2)(A), which has been the primary means by which

federal courts have violated the rights of victims of

state crimes. Though the act may not directly apply to

federal civil actions, the principles that motivated

Congress to enact it should be considered in the same

way that Rizzo noted with the Anti-Injunction Act. By

the time capital cases complete state court review and

federal habeas, the families of the victims have typically

waited far too long for justice already. To further delay

justice with a federal civil action, possibly for years,

would require the most compelling justification.

Finally, there is reason to doubt whether a federal

court in a § 1983 action even has jurisdiction to issue an

injunction that, in practice, amounts to an indefinite

stay of execution. If the plaintiff seeks an injunction

that prohibits the use of the only method that state law

allows, that “may amount to a challenge to the fact of

the sentence itself,” and thus require a habeas corpus

petition rather than a §1983 action. See Nelson v.

Campbell, 541 U. S., at 644; Hill v. McDonough, 547

U. S., at 582; see also supra, at 13, n. 9.

As explained in Part I, supra, the existence of an

available alternative is an important factor in determin-

ing whether a given protocol violates the Eighth

Amendment so that any relief at all is warranted. Ifa

court finds that there is a violation and relief is war-

ranted, it may need to choose between an order that

says “do not use method X” or ene that says “use

method ¥ instead of method X.” In most cases, amicus

22

CJLF submits, the latter will be less intrusive, more

respectful of federalism, more respectful of the rights of

the victims, and more clearly within the court’s § 1983

jurisdiction.

An order that simply bars one method may require

the state to start over and formally adopt another

method. Condemned inmates may then start the

litigation process over, file new challenges to the new

method, and demand new temporary restraining orders

and preliminary injunctions while they litigate that new

method. Victims of crime who have already waited far

too long may have to wait years longer. Where the

relief granted directs that the execution of the state

judgment proceed but by a different method, the

jurisdictional problem identified in Nelson and Hill

does not arise. Without such an alternative, the court

issues an order that it may not have jurisdiction to

issue.

For all of these reasons, a federal court hearing a

method-of-execution challenge in a § 1983 action should

not only require the plaintiff to identify an available

alternative method, but the relief granted, if any,

should direct the use of that method rather than simply

forbid use of the state’s original method.

Ill. The United States must not allow its

justice to be obstructed by an antidemocratic

and largely foreign conspiracy.

Each Fourth of July, we celebrate the day that the

Second Continental Congress declared that the United

States of America were ready “to assume among the

Powers of the Earth the separate and equal Station to

which the Laws of Nature and of Nature’s God entitle

them .. .” See Declaration of Independence, para. 1

(1776). While acknowledging the need for “a decent

23

Respect to the Opinions of Mankind,” ibid., the whole

point was not to be governed by others but rather for

the people of the country “to institute new Government,

laying its Foundations on such Principles . . . as to them

shall seem most likely to effect their Safety and Happi-

ness.” Id., para. 2 (emphasis added).

The consensus of the people of the United States,

the law of its federal government, and the law of an

overwhelming majority of its states is that death is the

appropriate punishment for the worst murders. See

Part IV, infra. The United States must not allow the

execution of the sentences that most of its people

believe to be just to be blocked by the actions of foreign

governments, foreign corporations, or a minority within

the United States that has failed to achieve its goals by

democratic means and therefore resorts to undemo-

cratic ones. That would be the result if a rule of law is

created that requires use of only the optimum methods

of execution when those optimum methods can be

rendered unavailable by agreements in restraint of

trade, particularly those erected under foreign pressure.

While the United States should refrain from actions

that violate the treaties it has duly ratified, other

countries should respect the right of the United States

to make its own choices within the bounds allowed by

those same treaties. The relevant treaty to which the

United States and the countries of Europe are parties

is the International Covenant on Civil and Political

Rights (ICCPR), Dec. 19, 1966, 999 U. N. T. S. 171

(entered into force Mar. 23, 1976). Article 6 of that

agreement permits capital punishment under certain

conditions, all of which the United States complies

with. Although the United States originally made a

reservation regarding Article 6(5), see Roper v. Sim-

mons, 543 U. S. 551, 567 (2005), that reservation was

rendered moot by Roper.

24

Continued use of capital punishment by the United

States in compliance with all the conditions of the

ICCPR is therefore no legitimate concern of European

governments. They can let their own murderers off

with absurdly light punishments if they choose. See,

e.g., Anders Behring Breivik: Norway Court Finds Him

Sane, BBC News (Aug. 24, 2012) (21 years for murder-

ing 77 people, 3% months per life).'’ They can make

further agreements among themselves, and they can

bludgeon other countries into abolition of capital

punishment as the price for the economic advantages of

joining the European Union. See Gibson & Lain, Death

Penalty Drugs and the International Moral Marketplace

22 (rev. Feb. 26, 2015), Georgetown L. J., vol. 103

(forthcoming).”* None of this amounts to a license for

meddling in America’s contrary choice.

“The use of the death penalty in the United States

is a decision of democratically elected governments

at the federal and individual State levels and is not

prohibited by international law. Capital punishment

does not violate any OSCE commitments. The

people of the United States, acting through their

freely elected representatives, have chosen, in most

States, not to abolish the death penalty.” United

States Mission to the OSCE, Response to the Euro-

pean Union’s Statement on the Death Penalty (May

14, 2009). *

11. http://www.bbc.com/news/world-europe- 19365616.

12. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2524124.

Amicus CJLF cites this paper only for its historical

information. Amicus does not endorse the views of the

authors, who seem to think that European government

meddling in American criminal justice policy is a good thing.

13. http://www.osce.org/pc/37216?download = true.

25

Yet they meddle nonetheless, and their meddling led

to Oklahoma’s adoption of midazolam and to the

present case.

There is no doubt that barbiturates are the pre-

ferred agents if the goal is to induce a painless death.

The American Veterinary Medical Association endorses

injectable barbiturates as the preferred method of

euthanasia for primates. See American Veterinary

Medical Association, Guidelines for Euthanasia of

Animals 50, 99 (2013 ed.).'* Thiopental was the pri-

mary agent in the physician-assisted euthanasia method

developed in the Netherlands. See Baze v. Rees, 553

U. S. 35, 58 (2008) (plurality opinion of Roberts, C.J.).

Oklahoma would use them if they were available. See

J. A. 79.

The history of the supply restriction, including the

underappreciated role of European governments, is

traced in a forthcoming article in the Georgetown Law

Journal, Gibson & Lain, supra. “At first blush, the

drug shortage appears to be the result of pharmaceuti-

cal industry norms; companies that make drugs for

healing have little interest in being merchants of death.

But closer inspection reveals that European govern-

ments are the true instigators of the shortage.” I/d.,

Abstract.

Sodium thiopental was the drug used in the first

step of the three-drug protocol in most if not all states

with capital punishment at the time of Baze v. Rees.

See 553 U. S., at 44. For reasons unrelated to capital

punishment, the sole American manufacturer of

thiopental, Hospira, decided to move its production to

a facility in Italy. The Italian subsidiary of Hospira

14. The AVMA specifies “nonhuman primates” in accordance with

their scope of practice. See id., § 12.3, at 6.

26

initially took the position that what was done with its

drugs was not its concern. See Hands Off Cain and

Reprieve, Lethal Trade: How an Abolitionist Country

is Collaborating in Putting People to Death in the

United States, Hands Off Cain (Dec. 2, 2010)."° The

Italian government then threatened the company with

denial of a license and with legal liability for itself and

its employees, and Hospira got out of the thiopental

market altogether. Gibson & Lain, supra, at 25-27.

Other European governments then moved to cut off

other sources. Jd., at 27. “European governments were

driving this train; the pharmaceutical industry merely

climbed on board once it became clear that state actors

were serious about using the market to fight capital

punishment.” IJd., at 28.

States then turned to pentobarbital. This is the

drug of choice for animal euthanasia. See R. Rhoades,

The Humane Society of the United States Euthanasia

Training Manual 3-4 (2002). This drug was manufac-

tured in the United States by a Danish company,

H. Lundbeck A/S. Lundbeck restricted its distribution

to buyers who agreed not to redistribute the drug for

capital punishment. See Gibson & Lain, supra, at 12-

13. Again, however, it did so only after being pressured

by European governments. Id., at 29.°° When Lund-

beck sold the rights to the drug to an American com-

pany, Akorn, Inc., the sale agreement required continu-

ation of the restrictive distribution system. See Lund-

beck Divests Several Products in the US As Part of

15. http://www.handsoffcain.info/chisiamo/index.php?idtema= 13

316650.

16. Whether this amounts to growing a backbone, see ibid., or

lacking one is debatable.

27

Long-Term Business Strategy, H. Lundbeck A/S, Press

Release (Dec. 22, 2011)."’

The stratagem of cutting off the supply of the

optimum drugs for lethal injection has, so far, not

succeeded in producing a major reduction in the num-

ber of executions in the United States. States have

gone to other drugs or found other sources of supply.

The paradoxical result that a campaign by death

penalty opponents may have resulted in unneeded pain

being inflicted on the inmates they were supposedly

trying to help has not gone unnoticed. See Deng &

Lithwick, Liberal Guilt: In the Push to Abolish the

Capital Punishment, Opponents of the Death Penalty

Have Made It Less Safe, Slate (May 9, 2014).”* Partici-

pants in this conspiracy are no doubt hoping that a rule

of law will emerge from this case that enhances their

ability to meddle in the American criminal justice

system and frustrate the will of the people as expressed

in democratically enacted laws. If this Court cuts off all

methods that are less than optimum and if market

manipulation or coercion can cut off the optimum

methods, then the stratagem may yet succeed.

For the sake of American sovereignty and democ-

racy, it is important that this stratagem fail. The

people of the United States must retain the ability to

decide how best to punish the perpetrators of the most

heinous crimes committed within our country. We

must not allow ourselves to be dictated to by European

governments or by a handful of corporations. So long

17. http://investor.!undbeck.com/releasedetail.cfm?ReleaseID=6

35094.

18. http://www.slate.com/articles/news_and_politics/jurisprudenc

e/2014/05/death_penalty_in_america_how_the push_to_abolish

_capital_ punishment_has.html.

28

as the less-than-optimum methods are not torturous,

they must remain available unless and until the opti-

mum methods become available again.

IV. The national consensus is

that capital punishment serves an important

function and needs to be enforced.

A group calling itself the National Consensus Project

(NCP) has filed an amicus curiae brief contending that

a national consensus supports a decision in favor of the

murderers in this case. See generally Brief of the

National Consensus Project, et al., as Amici Curiae

(NCP Brief). Actually, the one clear national consensus

in this area is that death is the appropriate punishment

for the worst murderers, and the sentences need to be

carried out.

After this Court declared unconstitutional the then-

existing death penalty statutes in Furman v. Georgia,

408 U. S. 238 (1972), the reaction of the American

people through the democratic process was swift and

overwhelming.

“The most marked indication of society’s en-

dorsement of the death penalty for murder is the

legislative response to Furman. The legislatures of

at least 35 States have enacted new statutes that

provide for the death penalty for at least some

crimes that result in the death of another person.

And the Congress of the United States, in 1974,

enacted a statute providing the death penalty for

aircraft piracy that results in death.” Gregg v.

Georgia, 428 U.S. 153, 179-180 (1976) (lead opin-

ion) (footnotes omitted).

That “marked indication” remains essentially

unchanged today. Over two-thirds of the states and the

29

federal government have current death penalty laws,

outstanding death sentences, or both. U.S. Depart-

ment of Justice, Bureau of Justice Statistics, Capital

Punishment, 2013—Statistical Tables 1 (2014). Al-

though a few state legislatures have decided not to seek

new death sentences for future crimes, these statutes

do not represent a rejection of death as an appropriate

punishment, as demonstrated by the fact that all but

one of the recent repeal statutes have provided for the

continuation of existing sentences. See id., at 1, n. *

Instead, recent repeal efforts have been largely based on

practical arguments invoking the extreme delays and

high costs.’ For example, in a 2012 initiative to repeal

the death penalty in California, the proponents men-

tioned only the risk of executing an innocent person as

an argument against capital punishment as such. The

rest of the argument was devoted entirely to matters of

cost. Not a single word in the argument even suggests

that death is an unjust punishment for a person guilty

of the worst kind of murder. Cal. Secretary of State,

Official Voter Information Guide, California General

Election 40 (2012) (argument in favor of Proposition

19. Reasons for the extreme delays and costs include the bloating

of the constitutional requirement of mitigating evidence to

include vast amounts of irrelevant or minimally relevant

information, see Graham v. Collins, 506 U. S. 461, 500 (1993)

(Thomas, J., concurring), massive resistance of some federal

courts to the Chapter“153 reforms of the Antiterrorism and

Effective Death Penalty Act of 1996, see Lopez v. Smith, 574

U.S. __, 135S. Ct. 1, 2, 190 L. Ed. 2d 1, 2 (2014) (per curiam)

(“time and again”), and the obstruction of the Chapter 154

reforms. See Habeas Corpus Resource Center v. Dept. of

Justice, No. 4:13-cv-04517-CW, 2014 U. S. Dist. LEXIS 109532

(ND Cal., Aug. 7, 2014) (appeal pending) (enjoining

implementing regulations); cf. 28 U. S. C. § 2265(c)(2)

(exclusive jurisdiction in the D.C. Circuit).

30

34). Even the most intractable opponents of the death

penalty know that they have no chance of convincing

the American people on the basic moral correctness of

capital punishment for the worst murderers.”

NCP purports to show a “consensus” against the use

of midazolam by adding up jurisdictions that have no

death penalty (including New York, where the demo-

cratically enacted statute is still on the books, blocked

by a dubious judicial decision, see supra, at 10), NCP

Brief 11, jurisdictions where execution has been blocked

by the unilateral act of a governor misusing the re-

prieve power, id., at 11-13, states that have not con-

ducted executions because of a combination of having

smal] death row populations and lengthy judicial delays,

id., at 13-14,” states that have not carried out many

executions without reasons given for the rarity, id., at

20. Despite a massive campaign funding imbalance, the initiative

still lost. See Ballotpedia, California 2012 Ballot Propositions,

http://ballotpedia.org/California_2012_ballot_propositions

(Prop. 34).

21. For what it is worth, properly asked poll questions consistently

show strong support for the death penalty. See Scheidegger,

Americans’ Support for Death Penalty Stable, Crime and

Consequences Blog (Oct. 23, 2014), http://www.

crimeandconsequences.com/crimblog/2014/10/americans-

support-for-death-pe. html, and they have for a longtime. Only

very badly skewed questions show an even split. See ibid.

22. The extreme hostility of the Supreme Court of Kansas to

capital punishment says nothing about a consensus of the

people of that state. Despite its small death row, this Court has

found it mecessary to take up a disproportionately large

number of that court’s capital case reversals. See Kansas v.

Cheever, 571 U.S. __, 1384S. Ct. 596, 187 L. Ed. 2d 519 (2013)

(unanimously reversed); Kansas v. Marsh, 548 U.S. 163 (2006)

(reversed); Kansas v. Carr (Jonathan), No. 14-449 (cert.

granted); Kansas v. Carr (Reginald), No. 14-450 (cert. granted);

Kansas v. Gleason, No. 14-452 (cert. granted).

31

14-15, and states that so far have not needed to resort

to midazolam, with one exception. See id., at 15-17.

The last group warrants a closer look. Of the states

listed in this group, only Ohio has actually used midazo-

lam and then suspended executions rather than con-

tinue using it. NCP Brief 16, n. 21. The protocol in use

there was midazolam plus hydromorphone, a different

protocol than the one at issue in this case. See In re

Ohio Execution Protocol Litig., 994 F. Supp. 2d 906, 912

(SD Ohio 2014). Other states actively carrying out

executions have, so far, been able to obtain pentobarbi-

tal, but the future is uncertain. See Berman, Texas

Finds More Lethal Injection Drugs After All, The

Washington Post (Mar. 25, 2015).”

The only consensus that NCP’s collection estab-

lishes is that pentobarbital or thiopental is preferable to

midazolam when the state can get it. That is not in

dispute. Oklahoma agrees. See J. A. 79. NCP has not

demonstrated a consensus that halting executions that

would otherwise go forward is preferable to using

midazolam. There is no such consensus and cannot be

because most states have not been faced with that

question. In the vast majority of jurisdictions, either

executions are halted for reasons having nothing to do

with the issue in this case or they are going forward

with the drugs that everyone agrees is preferred when

available. It is preposterous to assert that a state’s

nondecision on a question it does not face can be

counted in determining a national consensus.

The consensus that counts for the purpose of the

Eighth Amendment is the consensus of the people.

Legislation enacted by state legislatures and direct

23. http://www.washingtonpost.com/news/pust-nation/wp/2015/

03/25/texas-finds-more-lethal-injection-drugs-after-all/.

32

votes by the people are strong indications, see Gregg v.

Georgia, 428 U. S., at 179-181, but actions by other

state actors have far less value. The primary, enduring

consensus of American society in this area is that death

is the appropriate punishment for the worst murders.

Execution of these judgments, after the cases have been

thoroughly reviewed, should not be halted merely

hecause the preferred method has been blocked by

nefarious means so long as an acceptable one remains

available.

CONCLUSION

The decision of the Court of Appeals for the Tenth

Circuit should be affirmed.

April, 2015

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation