BAZE et al. v. REES, COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS, et al.

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BAZE et al. v. REES, COMMISSIONER, KENTUCKY
DEPARTMENT OF CORRECTIONS, et al.
certiorari to the supreme court of kentucky
No. 07–5439. Argued January 7, 2008—Decided April 16, 2008
Lethal injection is used for capital punishment by the Federal Government
and 36 States, at least 30 of which (including Kentucky) use the same
combination of three drugs: The first, sodium thiopental, induces uncon
sciousness when given in the specified amounts and thereby ensures
that the prisoner does not experience any pain associated with the paral
ysis and cardiac arrest caused by the second and third drugs, pancuro
nium bromide and potassium chloride. Among other things, Kentucky’s
lethal injection protocol reserves to qualified personnel having at least
one year’s professional experience the responsibility for inserting the
intravenous (IV) catheters into the prisoner, leaving it to others to mix
the drugs and load them into syringes; specifies that the warden and
deputy warden will remain in the execution chamber to observe the
prisoner and watch for any IV problems while the execution team ad
ministers the drugs from another room; and mandates that if, as deter
mined by the warden and deputy, the prisoner is not unconscious within
60 seconds after the sodium thiopental’s delivery, a new dose will be
given at a secondary injection site before the second and third drugs
are administered.
Petitioners, convicted murderers sentenced to death in Kentucky
state court, filed suit asserting that the Commonwealth’s lethal injection
protocol violates the Eighth Amendment’s ban on “cruel and unusual
punishments.” The state trial court held extensive hearings and en
tered detailed factfindings and conclusions of law, ruling that there was
minimal risk of various of petitioners’ claims of improper administration
of the protocol, and upholding it as constitutional. The Kentucky Su
preme Court affirmed, holding that the protocol does not violate the
Eighth Amendment because it does not create a substantial risk of wan
ton and unnecessary infliction of pain, torture, or lingering death.
Held: The judgment is affirmed.
217 S. W. 3d 207, affirmed.
Chief Justice Roberts, joined by Justice Kennedy and Justice
Alito, concluded that Kentucky’s lethal injection protocol satisfies the
Eighth Amendment. Pp. 47–63.
1. To constitute cruel and unusual punishment, an execution method
must present a “substantial” or “objectively intolerable” risk of serious

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36 BAZE v. REES
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harm. A State’s refusal to adopt proffered alternative procedures may
violate the Eighth Amendment only where the alternative procedure is
feasible, readily implemented, and in fact significantly reduces a sub
stantial risk of severe pain. Pp. 47–52.
(a) This Court has upheld capital punishment as constitutional.
See Gregg v. Georgia, 428 U. S. 153, 177. Because some risk of pain is
inherent in even the most humane execution method, if only from the
prospect of error in following the required procedure, the Constitution
does not demand the avoidance of all risk of pain. Petitioners contend
that the Eighth Amendment prohibits procedures that create an “unnec
essary risk” of pain, while Kentucky urges the Court to approve the
“ ‘substantial risk’ ” test used below. Pp. 47–48.
(b) This Court has held that the Eighth Amendment forbids “pun
ishments of torture, . . . and all others in the same line of unnecessary
cruelty,” Wilkerson v. Utah, 99 U. S. 130, 136, such as disemboweling,
beheading, quartering, dissecting, and burning alive, all of which share
the deliberate infliction of pain for the sake of pain, id., at 135. Observ
ing also that “[p]unishments are cruel when they involve torture or a
lingering death[,] . . . something inhuman and barbarous [and] . . . more
than the mere extinguishment of life,” the Court has emphasized that
an electrocution statute it was upholding “was passed in the effort to
devise a more humane method of reaching the result.” In re Kemmler,
136 U. S. 436, 447. Pp. 48–49.
(c) Although conceding that an execution under Kentucky’s proce
dures would be humane and constitutional if performed properly, peti
tioners claim that there is a significant risk that the procedures will not
be properly followed—particularly, that the sodium thiopental will not
be properly administered to achieve its intended effect—resulting in
severe pain when the other chemicals are administered. Subjecting in
dividuals to a substantial risk of future harm can be cruel and unusual
punishment if the conditions presenting the risk are “sure or very likely
to cause serious illness and needless suffering” and give rise to “suffi
ciently imminent dangers.” Helling v. McKinney, 509 U. S. 25, 33, 34–
35. To prevail, such a claim must present a “substantial risk of serious
harm,” an “objectively intolerable risk of harm.” Farmer v. Brennan,
511 U. S. 825, 842, 846, and n. 9. For example, the Court has held that
an isolated mishap alone does not violate the Eighth Amendment, Loui
siana ex rel. Francis v. Resweber, 329 U. S. 459, 463–464, because such
an event, while regrettable, does not suggest cruelty or a “substantial
risk of serious harm.” Pp. 49–50.
(d) Petitioners’ primary contention is that the risks they have iden
tified can be eliminated by adopting certain alternative procedures.
Because allowing a condemned prisoner to challenge a State’s execution

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method merely by showing a slightly or marginally safer alternative
finds no support in this Court’s cases, would embroil the courts in ongo
ing scientific controversies beyond their expertise, and would substan
tially intrude on the role of state legislatures in implementing execution
procedures, petitioners’ proposed “unnecessary risk” standard is re
jected in favor of Farmer’s “substantial risk of serious harm” test. To
effectively address such a substantial risk, a proffered alternative proce
dure must be feasible, readily implemented, and in fact significantly re
duce a substantial risk of severe pain. A State’s refusal to adopt such
an alternative in the face of these documented advantages, without a
legitimate penological justification for its current execution method, can
be viewed as “cruel and unusual.” Pp. 51–52.
2. Petitioners have not carried their burden of showing that the risk
of pain from maladministration of a concededly humane lethal injection
protocol, and the failure to adopt untried and untested alternatives, con
stitute cruel and unusual punishment. Pp. 53–61.
(a) It is uncontested that failing a proper dose of sodium thiopental
to render the prisoner unconscious, there is a substantial, constitution
ally unacceptable risk of suffocation from the administration of pancuro
nium bromide and of pain from potassium chloride. It is, however, dif
ficult to regard a practice as “objectively intolerable” when it is in fact
widely tolerated. Probative but not conclusive in this regard is the
consensus among the Federal Government and the States that have
adopted lethal injection and the specific three-drug combination Ken
tucky uses. Pp. 53–54.
(b) In light of the safeguards Kentucky’s protocol puts in place, the
risks of administering an inadequate sodium thiopental dose identified
by petitioners are not so substantial or imminent as to amount to an
Eighth Amendment violation. The charge that Kentucky employs un
trained personnel unqualified to calculate and mix an adequate dose was
answered by the state trial court’s finding, substantiated by expert tes
timony, that there would be minimal risk of improper mixing if the man
ufacturers’ thiopental package insert instructions were followed. Like
wise, the IV line problems alleged by petitioners do not establish a
sufficiently substantial risk because IV team members must have at
least one year of relevant professional experience, and the presence of
the warden and deputy warden in the execution chamber allows them to
watch for IV problems. If an insufficient dose is initially administered
through the primary IV site, an additional dose can be given through
the secondary site before the last two drugs are injected. Pp. 54–56.
(c) Nor does Kentucky’s failure to adopt petitioners’ proposed alter
natives demonstrate that the state execution procedure is cruel and un
usual. Kentucky’s continued use of the three-drug protocol cannot be

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38 BAZE v. REES
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viewed as posing an “objectively intolerable risk” when no other State
has adopted the one-drug method and petitioners have proffered no
study showing that it is an equally effective manner of imposing a death
sentence. Petitioners contend that Kentucky should omit pancuronium
bromide because it serves no therapeutic purpose while suppressing
muscle movements that could reveal an inadequate administration of
sodium thiopental. The state trial court specifically found that pancu
ronium bromide serves two purposes: (1) preventing involuntary convul
sions or seizures during unconsciousness, thereby preserving the proce
dure’s dignity, and (2) hastening death. Petitioners assert that their
barbiturate-only protocol is used routinely by veterinarians for putting
animals to sleep and that 23 States bar veterinarians from using a neu
romuscular paralytic agent like pancuronium bromide. These argu
ments overlook the States’ legitimate interest in providing for a quick,
certain death, and in any event, veterinary practice for animals is not
an appropriate guide for humane practices for humans. Petitioners
charge that Kentucky’s protocol lacks a systematic mechanism, such as
a Bispectral Index monitor, blood pressure cuff, or electrocardiogram,
for monitoring the prisoner’s “anesthetic depth.” But expert testimony
shows both that a proper thiopental dose obviates the concern that a
prisoner will not be sufficiently sedated, and that each of the proposed
alternatives presents its own concerns. Pp. 56–61.
Justice Stevens concluded that instead of ending the controversy,
this case will generate debate not only about the constitutionality of the
three-drug protocol, and specifically about the justification for the use
of pancuronium bromide, but also about the justification for the death
penalty itself. States wishing to decrease the risk that future litigation
will delay executions or invalidate their protocol would do well to recon
sider their continued use of pancuronium bromide. Moreover, although
experience demonstrates that imposing that penalty constitutes the
pointless and needless extinction of life with only negligible social or
public returns, this conclusion does not justify a refusal to respect this
Court’s precedents upholding the death penalty and establishing a
framework for evaluating the constitutionality of particular execution
methods, under which petitioners’ evidence fails to prove that Ken
tucky’s protocol violates the Eighth Amendment. Pp. 71–87.
Justice Thomas, joined by Justice Scalia, concluded that the plu
rality’s formulation of the governing standard finds no support in the
original understanding of the Cruel and Unusual Punishments Clause
or in this Court’s previous method-of-execution cases; casts constitu
tional doubt on long-accepted methods of execution; and injects the
Court into matters it has no institutional capacity to resolve. The his
torical practices leading to the Clause’s inclusion in the Bill of Rights,

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the views of early commentators on the Constitution, and this Court’s
cases, see, e. g., Wilkerson v. Utah, 99 U. S. 130, 135–136, all demon
strate that an execution method violates the Eighth Amendment only if
it is deliberately designed to inflict pain. Judged under that standard,
this is an easy case: Because it is undisputed that Kentucky adopted its
lethal injection protocol in an effort to make capital punishment more
humane, not to add elements of terror, pain, or disgrace to the death
penalty, petitioners’ challenge must fail. Pp. 94–107.
Justice Breyer concluded that there cannot be found, either in the
record or in the readily available literature, sufficient grounds to believe
that Kentucky’s lethal injection method creates a significant risk of un
necessary suffering. Although the death penalty has serious risks—
e. g., that the wrong person may be executed, that unwarranted animus
about the victims’ race, for example, may play a role, and that those
convicted will find themselves on death row for many years—the pen
alty’s lawfulness is not before the Court. And petitioners’ proof and
evidence, while giving rise to legitimate concern, do not show that
Kentucky’s execution method amounts to “cruel and unusual punish
men[t].” Pp. 107–113.
Roberts, C. J., announced the judgment of the Court and delivered
an opinion, in which Kennedy and Alito, JJ., joined. Alito, J., filed a
concurring opinion, post, p. 63. Stevens, J., filed an opinion concurring
in the judgment, post, p. 71. Scalia, J., filed an opinion concurring in the
judgment, in which Thomas, J., joined, post, p. 87. Thomas, J., filed an
opinion concurring in the judgment, in which Scalia, J., joined, post, p. 94.
Breyer, J., filed an opinion concurring in the judgment, post, p. 107.
Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined,
post, p. 113.
Donald B. Verrilli, Jr., argued the cause for petitioners.
With him on the briefs were David M. Barron, Ginger D.
Anders, and John Anthony Palombi.
Roy T. Englert, Jr., argued the cause for respondents. On
the brief were Gregory D. Stumbo, Attorney General of Ken
tucky, David A. Smith, Assistant Attorney General, Jeffrey
T. Middendorf, and John C. Cummings.
Deputy Solicitor General Garre argued the cause for the
United States as amicus curiae in support of respondents.
With him on the brief were Solicitor General Clement, As

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40 BAZE v. REES
Opinion of Roberts, C. J.
sistant Attorney General Fisher, Kannon K. Shanmugam,
and Robert J. Erickson.*
Chief Justice Roberts announced the judgment of the
Court and delivered an opinion, in which Justice Kennedy
and Justice Alito join.
Like 35 other States and the Federal Government, Ken
tucky has chosen to impose capital punishment for certain
crimes. As is true with respect to each of these States and
the Federal Government, Kentucky has altered its method
*Briefs of amici curiae urging reversal were filed for the American
Civil Liberties Union et al. by John Holdridge, John W. Whitehead, and
Steven R. Shapiro; for the Fordham University School of Law, Louis Stein
Center for Law and Ethics, by Alison J. Nathan, Bruce A. Green, and
Bruce V. Spiva; for Human Rights Watch by Andrew J. Pincus and
Charles A. Rothfeld; and for Michael Morales et al. by Elisabeth Semel
and Ty Alper.
Briefs of amici curiae urging affirmance were filed for the State of
Texas et al. by Greg Abbott, Attorney General of Texas, Kent C. Sullivan,
First Assistant Attorney General, Eric J. R. Nichols, Deputy Attorney
General for Criminal Justice, R. Ted Cruz, Solicitor General, and Sean D.
Jordan, Deputy Solicitor General, by Kevin T. Kane, Chief State’s Attor
ney of Connecticut, and by the Attorneys General for their respective
States as follows: Troy King of Alabama, Dustin McDaniel of Arkansas,
John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Bill Mc-
Collum of Florida, Thurbert E. Baker of Georgia, Lawrence G. Wasden of
Idaho, Paul J. Morrison of Kansas, Jim Hood of Mississippi, Jeremiah W.
(Jay) Nixon of Missouri, Mike McGrath of Montana, Catherine Cortez
Masto of Nevada, W. A. Drew Edmondson of Oklahoma, Henry D. McMas
ter of South Carolina, Lawrence E. Long of South Dakota, Robert E.
Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, and Bruce A. Salz
burg of Wyoming; and for the Criminal Justice Legal Foundation by Kent
S. Scheidegger.
Briefs of amici curiae were filed for the American Association of Jewish
Lawyers and Jurists by Nathan Lewin, Alyza D. Lewin, Stephen R.
Greenwald, and Robert L. Weinberg; for the American Society of Anesthe
siologists by Lawrence J. Fox and Lisa S. McCalmont; for the Anesthesia
Awareness Campaign, Inc., by Richard M. Wyner; for Critical Care Pro
viders et al. by Bradley S. Phillips, Paul Watford, and Julie D. Cantor;
and for Dr. Kevin Concannon et al. by Simona G. Strauss.

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of execution over time to more humane means of carrying
out the sentence. That progress has led to the use of le
thal injection by every jurisdiction that imposes the death
penalty.
Petitioners in this case—each convicted of double homi
cide—acknowledge that the lethal injection procedure, if
applied as intended, will result in a humane death. They
nevertheless contend that the lethal injection protocol is
unconstitutional under the Eighth Amendment’s ban on
“cruel and unusual punishments,” because of the risk that
the protocol’s terms might not be properly followed, result
ing in significant pain. They propose an alternative proto
col, one that they concede has not been adopted by any State
and has never been tried.
The trial court held extensive hearings and entered de
tailed findings of fact and conclusions of law. It recog
nized that “[t]here are no methods of legal execution that are
satisfactory to those who oppose the death penalty on moral,
religious, or societal grounds,” but concluded that Ken
tucky’s procedure “complies with the constitutional require
ments against cruel and unusual punishment.” App. 769.
The State Supreme Court affirmed. We too agree that peti
tioners have not carried their burden of showing that the
risk of pain from maladministration of a concededly humane
lethal injection protocol, and the failure to adopt untried and
untested alternatives, constitute cruel and unusual punish
ment. The judgment below is affirmed.
I
A
By the middle of the 19th century, “hanging was the
‘nearly universal form of execution’ in the United States.”
Campbell v. Wood, 511 U. S. 1119 (1994) (Blackmun, J., dis
senting from denial of certiorari) (quoting State v. Framp
ton, 95 Wash. 2d 469, 492, 627 P. 2d 922, 934 (1981)); Denno,
Getting to Death: Are Executions Constitutional? 82 Iowa

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L. Rev. 319, 364 (1997) (counting 48 States and Territories
that employed hanging as a method of execution). In 1888,
following the recommendation of a commission empaneled
by the Governor to find “ ‘the most humane and practical
method known to modern science of carrying into effect the
sentence of death,’ ” New York became the first State to au
thorize electrocution as a form of capital punishment. Glass
v. Louisiana, 471 U. S. 1080, 1082, and n. 4 (1985) (Brennan,
J., dissenting from denial of certiorari); Denno, supra, at 373.
By 1915, 11 other States had followed suit, motivated by the
“well-grounded belief that electrocution is less painful and
more humane than hanging.” Malloy v. South Carolina,
237 U. S. 180, 185 (1915).
Electrocution remained the predominant mode of execu
tion for nearly a century, although several methods, includ
ing hanging, firing squad, and lethal gas were in use at one
time. Brief for Fordham University School of Law, Louis
Stein Center for Law and Ethics, as Amicus Curiae 5–9
(hereinafter Fordham Brief). Following the 9-year hiatus
in executions that ended with our decision in Gregg v. Geor
gia, 428 U. S. 153 (1976), however, state legislatures began
responding to public calls to reexamine electrocution as a
means of ensuring a humane death. See S. Banner, The
Death Penalty: An American History 192–193, 296–297
(2002). In 1977, legislators in Oklahoma, after consulting
with the head of the anesthesiology department at the Uni
versity of Oklahoma College of Medicine, introduced the first
bill proposing lethal injection as the State’s method of execu
tion. See Brief for Petitioners 4; Fordham Brief 21–22. A
total of 36 States have now adopted lethal injection as the
exclusive or primary means of implementing the death pen
alty, making it by far the most prevalent method of execution
in the United States.1 It is also the method used by the
1 Twenty-seven of the thirty-six States that currently provide for capital
punishment require execution by lethal injection as the sole method. See
Ariz. Rev. Stat. Ann. § 13–704 (West 2001); Ark. Code Ann. § 5–4–617

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Federal Government. See 18 U. S. C. § 3591 et seq. (2000 ed.
and Supp. V); App. to Brief for United States as Amicus
Curiae 1a–6a (lethal injection protocol used by the Federal
Bureau of Prisons).
(2006); Colo. Rev. Stat. Ann. § 18–1.3–1202 (2007); Conn. Gen. Stat. § 54–100
(2007); Del. Code Ann., Tit. 11, § 4209 (2006 Supp.); Ga. Code Ann. § 17–
10–38 (2004); Ill. Comp. Stat., ch. 725, § 5/119–5 (West 2006); Ind. Code
§ 35–38–6–1 (West 2004); Kan. Stat. Ann. § 22–4001 (2006 Cum. Supp.); Ky.
Rev. Stat. Ann. § 431.220 (West 2006); La. Stat. Ann. § 15:569 (West 2005);
Md. Crim. Law Code Ann. § 2–303 (Lexis Supp. 2007); Miss. Code Ann.
§ 99–19–51 (2007); Mont. Code Ann. § 46–19–103 (2007); Nev. Rev. Stat.
§ 176.355 (2007); N. M. Stat. Ann. § 31–14–11 (2000); N. Y. Correc. Law
Ann. § 658 (West 2003) (held unconstitutional in People v. LaValle, 3 N. Y.
3d 88, 130–131, 817 N. E. 2d 341, 367 (2004)); N. C. Gen. Stat. Ann. § 15–187
(Lexis 2007); Ohio Rev. Code Ann. § 2949.22 (Lexis 2006); Okla. Stat., Tit.
22, § 1014 (West 2001); Ore. Rev. Stat. § 137.473 (2003); Pa. Stat. Ann., Tit.
61, § 3004 (Purdon 1999); S. D. Codified Laws § 23A–27A–32 (Supp. 2007);
Tenn. Code Ann. § 40–23–114 (2006); Tex. Code Crim. Proc. Ann., Art.
43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. § 77–18–5.5 (Lexis
Supp. 2007); Wyo. Stat. Ann. § 7–13–904 (2007). Nine States allow for
lethal injection in addition to an alternative method, such as electrocution,
see Ala. Code §§ 15–18–82 to 82.1 (Supp. 2007); Fla. Stat. § 922.105 (2006);
S. C. Code Ann. § 24–3–530 (2007); Va. Code Ann. § 53.1–234 (Lexis Supp.
2007), hanging, see N. H. Rev. Stat. Ann. § 630:5 (2007); Wash. Rev. Code
§ 10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. § 3604 (West 2000);
Mo. Rev. Stat. § 546.720 (2007 Cum. Supp.), or firing squad, see Idaho Code
§ 19–2716 (Lexis 2004). Nebraska is the only State whose statutes specify
electrocution as the sole method of execution, see Neb. Rev. Stat. § 29–2532
(1995), but the Nebraska Supreme Court recently struck down that
method under the Nebraska Constitution, see State v. Mata, 275 Neb. 1,
39, 745 N. W. 2d 229, 278 (2008).
Although it is undisputed that the States using lethal injection adopted
the protocol first developed by Oklahoma without significant independent
review of the procedure, it is equally undisputed that, in moving to lethal
injection, the States were motivated by a desire to find a more humane
alternative to then-existing methods. See Fordham Brief 2–3. In this
regard, Kentucky was no different. See id., at 29–30 (quoting statement
by the State Representative who sponsored the bill to replace electrocu
tion with lethal injection in Kentucky: “[I]f we are going to do capital
punishment, it needs to be done in the most humane manner” (internal
quotation marks omitted)).

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Of these 36 States, at least 30 (including Kentucky) use
the same combination of three drugs in their lethal injection
protocols. See Workman v. Bredesen, 486 F. 3d 896, 902
(CA6 2007). The first drug, sodium thiopental (also known
as Pentothol), is a fast-acting barbiturate sedative that in
duces a deep, comalike unconsciousness when given in the
amounts used for lethal injection. App. 762–763, 631–632.
The second drug, pancuronium bromide (also known as Pavu
lon), is a paralytic agent that inhibits all muscular-skeletal
movements and, by paralyzing the diaphragm, stops respi
ration. Id., at 763. Potassium chloride, the third drug, in
terferes with the electrical signals that stimulate the con
tractions of the heart, inducing cardiac arrest. Ibid. The
proper administration of the first drug ensures that the pris
oner does not experience any pain associated with the paral
ysis and cardiac arrest caused by the second and third drugs.
Id., at 493–494, 541, 558–559.
B
Kentucky replaced electrocution with lethal injection in
1998. 1998 Ky. Acts ch. 220, p. 777. The Kentucky statute
does not specify the drugs or categories of drugs to be used
during an execution, instead mandating that “every death
sentence shall be executed by continuous intravenous injec
tion of a substance or combination of substances sufficient
to cause death.” Ky. Rev. Stat. Ann. § 431.220(1)(a) (West
2006). Prisoners sentenced before 1998 have the option of
electing either electrocution or lethal injection, but lethal in
jection is the default if—as is the case with petitioners—the
prisoner refuses to make a choice at least 20 days before the
scheduled execution. § 431.220(1)(b). If a court invalidates
Kentucky’s lethal injection method, Kentucky law provides
that the method of execution will revert to electrocution.
§ 431.223.
Shortly after the adoption of lethal injection, officials
working for the Kentucky Department of Corrections set

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about developing a written protocol to comply with the re
quirements of § 431.220(1)(a). Kentucky’s protocol called for
the injection of 2 grams of sodium thiopental, 50 milligrams
of pancuronium bromide, and 240 milliequivalents of potas
sium chloride. In 2004, as a result of this litigation, the de
partment chose to increase the amount of sodium thiopental
from 2 grams to 3 grams. App. 762–763, 768. Between in
jections, members of the execution team flush the intrave
nous (IV) lines with 25 milligrams of saline to prevent clog
ging of the lines by precipitates that may form when residual
sodium thiopental comes into contact with pancuronium bro
mide. Id., at 761, 763–764. The protocol reserves responsi
bility for inserting the IV catheters to qualified personnel
having at least one year of professional experience. Id., at
984. Currently, Kentucky uses a certified phlebotomist and
an emergency medical technician (EMT) to perform the veni
punctures necessary for the catheters. Id., at 761–762.
They have up to one hour to establish both primary and sec
ondary peripheral IV sites in the arm, hand, leg, or foot of
the inmate. Id., at 975–976. Other personnel are responsi
ble for mixing the solutions containing the three drugs and
loading them into syringes. Id., at 761.
Kentucky’s execution facilities consist of the execution
chamber, a control room separated by a one-way window,
and a witness room. Id., at 203. The warden and deputy
warden remain in the execution chamber with the prisoner,
who is strapped to a gurney. The execution team adminis
ters the drugs remotely from the control room through five
feet of IV tubing. Id., at 286. If, as determined by the
warden and deputy warden through visual inspection, the
prisoner is not unconscious within 60 seconds following the
delivery of the sodium thiopental to the primary IV site, a
new 3-gram dose of thiopental is administered to the second
ary site before injecting the pancuronium and potassium
chloride. Id., at 978–979. In addition to ensuring that the
first dose of thiopental is successfully administered, the war

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46 BAZE v. REES
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den and deputy warden also watch for any problems with
the IV catheters and tubing.
A physician is present to assist in any effort to revive the
prisoner in the event of a last-minute stay of execution. Id.,
at 764. By statute, however, the physician is prohibited
from participating in the “conduct of an execution,” ex
cept to certify the cause of death. Ky. Rev. Stat. Ann.
§ 431.220(3). An electrocardiogram (EKG) verifies the
death of the prisoner. App. 764. Only one Kentucky pris
oner, Eddie Lee Harper, has been executed since the Com
monwealth adopted lethal injection. There were no re
ported problems at Harper’s execution.
C
Petitioners Ralph Baze and Thomas C. Bowling were each
convicted of two counts of capital murder and sentenced to
death. The Kentucky Supreme Court upheld their convic
tions and sentences on direct appeal. See Baze v. Common
wealth, 965 S. W. 2d 817, 819–820, 826 (1997), cert. denied,
523 U. S. 1083 (1998); Bowling v. Commonwealth, 873 S. W.
2d 175, 176–177, 182 (1993), cert. denied, 513 U. S. 862 (1994).
After exhausting their state and federal collateral reme
dies, Baze and Bowling sued three state officials in the
Franklin Circuit Court for the Commonwealth of Kentucky,
seeking to have Kentucky’s lethal injection protocol declared
unconstitutional. After a 7-day bench trial during which
the trial court received the testimony of approximately 20
witnesses, including numerous experts, the court upheld the
protocol, finding there to be minimal risk of various claims
of improper administration of the protocol. App. 765–769.
On appeal, the Kentucky Supreme Court stated that a
method of execution violates the Eighth Amendment when
it “creates a substantial risk of wanton and unnecessary in
fliction of pain, torture or lingering death.” 217 S. W. 3d
207, 209 (2006). Applying that standard, the court affirmed.
Id., at 212.

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We granted certiorari to determine whether Kentucky’s
lethal injection protocol satisfies the Eighth Amendment.
551 U. S. 1192, amended, 552 U. S. 945 (2007). We hold that
it does.
II
The Eighth Amendment to the Constitution, applicable to
the States through the Due Process Clause of the Fourteenth
Amendment, see Robinson v. California, 370 U. S. 660, 666
(1962), provides that “[e]xcessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punish
ments inflicted.” We begin with the principle, settled by
Gregg, that capital punishment is constitutional. See 428
U. S., at 177 ( joint opinion of Stewart, Powell, and Stevens,
JJ.). It necessarily follows that there must be a means of
carrying it out. Some risk of pain is inherent in any method
of execution—no matter how humane—if only from the pros
pect of error in following the required procedure. It is
clear, then, that the Constitution does not demand the avoid
ance of all risk of pain in carrying out executions.
Petitioners do not claim that it does. Rather, they con
tend that the Eighth Amendment prohibits procedures that
create an “unnecessary risk” of pain. Brief for Petitioners
38. Specifically, they argue that courts must evaluate “(a)
the severity of pain risked, (b) the likelihood of that pain
occurring, and (c) the extent to which alternative means are
feasible, either by modifying existing execution procedures
or adopting alternative procedures.” Ibid. Petitioners en
vision that the quantum of risk necessary to make out an
Eighth Amendment claim will vary according to the severity
of the pain and the availability of alternatives, Reply Brief
for Petitioners 23–24, n. 9, but that the risk must be “signifi
cant” to trigger Eighth Amendment scrutiny, see Brief for
Petitioners 39–40; Reply Brief for Petitioners 25–26.
Kentucky responds that this “unnecessary risk” standard
is tantamount to a requirement that States adopt the “ ‘least
risk’ ” alternative in carrying out an execution, a standard

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the Commonwealth contends will cast recurring constitu
tional doubt on any procedure adopted by the States. Brief
for Respondents 29, 35. Instead, Kentucky urges the Court
to approve the “ ‘substantial risk’ ” test used by the courts
below. Id., at 34–35.
A
This Court has never invalidated a State’s chosen proce
dure for carrying out a sentence of death as the infliction of
cruel and unusual punishment. In Wilkerson v. Utah, 99
U. S. 130 (1879), we upheld a sentence to death by firing
squad imposed by a territorial court, rejecting the argument
that such a sentence constituted cruel and unusual punish
ment. Id., at 134–135. We noted there the difficulty of “de
fin[ing] with exactness the extent of the constitutional provi
sion which provides that cruel and unusual punishments shall
not be inflicted.” Id., at 135–136. Rather than undertake
such an effort, the Wilkerson Court simply noted that “it is
safe to affirm that punishments of torture, . . . and all others
in the same line of unnecessary cruelty, are forbidden” by
the Eighth Amendment. Id., at 136. By way of example,
the Court cited cases from England in which “terror, pain,
or disgrace were sometimes superadded” to the sentence,
such as where the condemned was “embowelled alive, be
headed, and quartered,” or instances of “public dissection in
murder, and burning alive.” Id., at 135. In contrast, we
observed that the firing squad was routinely used as a
method of execution for military officers. Id., at 134. What
each of the forbidden punishments had in common was the
deliberate infliction of pain for the sake of pain—“superadd
[ing]” pain to the death sentence through torture and the
like.
We carried these principles further in In re Kemmler, 136
U. S. 436 (1890). There we rejected an opportunity to incor
porate the Eighth Amendment against the States in a chal
lenge to the first execution by electrocution, to be carried

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out by the State of New York. Id., at 449. In passing over
that question, however, we observed: “Punishments are cruel
when they involve torture or a lingering death; but the pun
ishment of death is not cruel, within the meaning of that
word as used in the Constitution. It implies there some
thing inhuman and barbarous, something more than the
mere extinguishment of life.” Id., at 447. We noted that
the New York statute adopting electrocution as a method of
execution “was passed in the effort to devise a more humane
method of reaching the result.” Ibid.
B
Petitioners do not claim that lethal injection or the proper
administration of the particular protocol adopted by Ken
tucky by themselves constitute the cruel or wanton infliction
of pain. Quite the contrary, they concede that “if performed
properly,” an execution carried out under Kentucky’s proce
dures would be “humane and constitutional.” Brief for Peti
tioners 31. That is because, as counsel for petitioners ad
mitted at oral argument, proper administration of the first
drug, sodium thiopental, eliminates any meaningful risk that
a prisoner would experience pain from the subsequent injec
tions of pancuronium and potassium chloride. See Tr. of
Oral Arg. 5; App. 493–494 (testimony of petitioners’ expert
that, if sodium thiopental is “properly administered” under
the protocol, “[i]n virtually every case, then that would be a
humane death”).
Instead, petitioners claim that there is a significant risk
that the procedures will not be properly followed—in partic
ular, that the sodium thiopental will not be properly adminis
tered to achieve its intended effect—resulting in severe pain
when the other chemicals are administered. Our cases rec
ognize that subjecting individuals to a risk of future harm—
not simply actually inflicting pain—can qualify as cruel and
unusual punishment. To establish that such exposure vio

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lates the Eighth Amendment, however, the conditions pre
senting the risk must be “sure or very likely to cause serious
illness and needless suffering,” and give rise to “sufficiently
imminent dangers.” Helling v. McKinney, 509 U. S. 25, 33,
34–35 (1993) (emphasis added). 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 “sub
jectively blameless for purposes of the Eighth Amendment.”
Farmer v. Brennan, 511 U. S. 825, 842, 846, and n. 9 (1994).
Simply because an execution method may result in pain,
either by accident or as an inescapable consequence of death,
does not establish the sort of “objectively intolerable risk of
harm” that qualifies as cruel and unusual. In Louisiana ex
rel. Francis v. Resweber, 329 U. S. 459 (1947), a plurality of
the Court upheld a second attempt at executing a prisoner
by electrocution after a mechanical malfunction had inter
fered with the first attempt. The principal opinion noted
that “[a]ccidents happen for which no man is to blame,” id.,
at 462, and concluded that such “an accident, with no sugges
tion of malevolence,” id., at 463, did not give rise to an
Eighth Amendment violation, id., at 463–464.
As Justice Frankfurter noted in a separate opinion based
on the Due Process Clause, however, “a hypothetical situa
tion” involving “a series of abortive attempts at electrocu
tion” would present a different case. Id., at 471 (concurring
opinion). In terms of our present Eighth Amendment anal
ysis, such a situation—unlike an “innocent misadventure,”
id., at 470—would demonstrate an “objectively intolerable
risk of harm” that officials may not ignore. See Farmer, 511
U. S., at 846, and n. 9. In other words, an isolated mishap
alone does not give rise to an Eighth Amendment violation,
precisely because such an event, while regrettable, does not
suggest cruelty, or that the procedure at issue gives rise to
a “substantial risk of serious harm.” Id., at 842.

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C
Much of petitioners’ case rests on the contention that they
have identified a significant risk of harm that can be elimi
nated by adopting alternative procedures, such as a one-drug
protocol that dispenses with the use of pancuronium and po
tassium chloride, and additional monitoring by trained per
sonnel to ensure that the first dose of sodium thiopental has
been adequately delivered. Given what our cases have said
about the nature of the risk of harm that is actionable under
the Eighth Amendment, a condemned prisoner cannot suc
cessfully challenge a State’s method of execution merely by
showing a slightly or marginally safer alternative.
Permitting an Eighth Amendment violation to be estab
lished on such a showing would threaten to transform courts
into boards of inquiry charged with determining “best prac
tices” for executions, with each ruling supplanted by another
round of litigation touting a new and improved methodology.
Such an approach finds no support in our cases, would em
broil the courts in ongoing scientific controversies beyond
their expertise, and would substantially intrude on the role
of state legislatures in implementing their execution proce
dures—a role that by all accounts the States have fulfilled
with an earnest desire to provide for a progressively more
humane manner of death. See Bell v. Wolfish, 441 U. S. 520,
562 (1979) (“The wide range of ‘judgment calls’ that meet
constitutional and statutory requirements are confided to of
ficials outside of the Judicial Branch of Government”). Ac
cordingly, we reject petitioners’ proposed “unnecessary risk”
standard, as well as the dissent’s “untoward” risk variation.
See post, at 114, 123 (opinion of Ginsburg, J.).2
2 The difficulties inherent in such approaches are exemplified by the con
troversy surrounding the study of lethal injection published in the April
2005 edition of the British medical journal the Lancet. After examining
thiopental concentrations in toxicology reports based on blood samples
drawn from 49 executed inmates, the study concluded that “most of the

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Instead, the proffered alternatives must effectively ad
dress a “substantial risk of serious harm.” Farmer, supra,
at 842. To qualify, the alternative procedure must be feasi
ble, readily implemented, and in fact significantly reduce a
substantial risk of severe pain. If a State refuses to adopt
such an alternative in the face of these documented advan
tages, without a legitimate penological justification for
adhering to its current method of execution, then a State’s
refusal to change its method can be viewed as “cruel and
unusual” under the Eighth Amendment.3
executed inmates had concentrations that would not be expected to
produce a surgical plane of anaesthesia, and 21 (43%) had concentrations
consistent with consciousness.” Koniaris, Zimmers, Lubarsky, & Sheldon,
Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet
1412, 1412–1413. The study was widely cited around the country in mo
tions to stay executions and briefs on the merits. See, e. g., Denno, The
Lethal Injection Quandary: How Medicine Has Dismantled the Death
Penalty, 76 Ford. L. Rev. 49, 105, n. 366 (2007) (collecting cases in which
claimants cited the Lancet study). But shortly after the Lancet study
appeared, peer responses by seven medical researchers criticized the
methodology supporting the original conclusions. See Groner, Inade
quate Anaesthesia in Lethal Injection for Execution, 366 Lancet 1073,
1073–1074 (Sept. 2005). These researchers noted that because the blood
samples were taken “several hours to days after” the inmates’ deaths,
the postmortem concentrations of thiopental—a fat-soluble compound that
passively diffuses from blood into tissue—could not be relied on as accu
rate indicators for concentrations during life. Id., at 1073. The authors
of the original study responded to defend their methodology. Id., at 1074–
1076. See also post, at 108–110 (Breyer, J., concurring in judgment).
We do not purport to take sides in this dispute. We cite it only to
confirm that a “best practices” approach, calling for the weighing of
relative risks without some measure of deference to a State’s choice of
execution procedures, would involve the courts in debatable matters far
exceeding their expertise.
3 Justice Thomas agrees that courts have neither the authority nor the
expertise to function as boards of inquiry determining best practices for
executions, see post, at 101 (opinion concurring in judgment) (quoting this
opinion); post, at 105–106, but contends that the standard we adopt inevit

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III
In applying these standards to the facts of this case, we
note at the outset that it is difficult to regard a practice as
“objectively intolerable” when it is in fact widely tolerated.
Thirty-six States that sanction capital punishment have
adopted lethal injection as the preferred method of execu
tion. The Federal Government uses lethal injection as well.
See supra, at 42–43, and n. 1. This broad consensus goes
not just to the method of execution, but also to the specific
three-drug combination used by Kentucky. Thirty States,
as well as the Federal Government, use a series of sodium
thiopental, pancuronium bromide, and potassium chloride, in
varying amounts. See supra, at 44. No State uses or has
ever used the alternative one-drug protocol belatedly urged
by petitioners. This consensus is probative but not conclu
sive with respect to that aspect of the alternatives proposed
by petitioners.
In order to meet their “heavy burden” of showing that
Kentucky’s procedure is “cruelly inhumane,” Gregg, 428
U. S., at 175 ( joint opinion of Stewart, Powell, and Stevens,
JJ.), petitioners point to numerous aspects of the protocol
that they contend create opportunities for error. Their
claim hinges on the improper administration of the first drug,
sodium thiopental. It is uncontested that, failing a proper
dose of sodium thiopental that would render the prisoner
unconscious, there is a substantial, constitutionally unaccept
able risk of suffocation from the administration of pancuro
nium bromide and pain from the injection of potassium chlo
ride. See Tr. of Oral Arg. 27. We agree with the state trial
court and State Supreme Court, however, that petitioners
ably poses such concerns. In our view, those concerns are effectively ad
dressed by the threshold requirement reflected in our cases of a “ ‘substan
tial risk of serious harm’ ” or an “ ‘objectively intolerable risk of harm,’ ”
see supra, at 50, and by the substantive requirements in the articulated
standard.

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have not shown that the risk of an inadequate dose of the
first drug is substantial. And we reject the argument that
the Eighth Amendment requires Kentucky to adopt the un
tested alternative procedures petitioners have identified.
A
Petitioners contend that there is a risk of improper admin
istration of thiopental because the doses are difficult to mix
into solution form and load into syringes; because the proto
col fails to establish a rate of injection, which could lead to a
failure of the IV; because it is possible that the IV catheters
will infiltrate into surrounding tissue, causing an inadequate
dose to be delivered to the vein; because of inadequate facili
ties and training; and because Kentucky has no reliable
means of monitoring the anesthetic depth of the prisoner
after the sodium thiopental has been administered. Brief
for Petitioners 12–20.
As for the risk that the sodium thiopental would be im
properly prepared, petitioners contend that Kentucky em
ploys untrained personnel who are unqualified to calculate
and mix an adequate dose, especially in light of the omission
of volume and concentration amounts from the written proto
col. Id., at 45–46. The state trial court, however, specifi
cally found that “[i]f the manufacturers’ instructions for re
constitution of Sodium Thiopental are followed, . . . there
would be minimal risk of improper mixing, despite converse
testimony that a layperson would have difficulty performing
this task.” App. 761. We cannot say that this finding is
clearly erroneous, see Hernandez v. New York, 500 U. S. 352,
366 (1991) (plurality opinion), particularly when that finding
is substantiated by expert testimony describing the task of
reconstituting powder sodium thiopental into solution form
as “[n]ot difficult at all. . . . You take a liquid, you inject it
into a vial with the powder, then you shake it up until the
powder dissolves and, you’re done. The instructions are on
the package insert.” 5 Tr. 695 (Apr. 19, 2005).

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Likewise, the asserted problems related to the IV lines do
not establish a sufficiently substantial risk of harm to meet
the requirements of the Eighth Amendment. Kentucky has
put in place several important safeguards to ensure that an
adequate dose of sodium thiopental is delivered to the con
demned prisoner. The most significant of these is the writ
ten protocol’s requirement that members of the IV team
must have at least one year of professional experience as a
certified medical assistant, phlebotomist, EMT, paramedic,
or military corpsman. App. 984. Kentucky currently uses
a phlebotomist and an EMT, personnel who have daily expe
rience establishing IV catheters for inmates in Kentucky’s
prison population. Id., at 273–274; Tr. of Oral Arg. 27–28.
Moreover, these IV team members, along with the rest of
the execution team, participate in at least 10 practice ses
sions per year. App. 984. These sessions, required by the
written protocol, encompass a complete walk-through of the
execution procedures, including the siting of IV catheters
into volunteers. Ibid. In addition, the protocol calls for
the IV team to establish both primary and backup lines and
to prepare two sets of the lethal injection drugs before the
execution commences. Id., at 975. These redundant meas
ures ensure that if an insufficient dose of sodium thiopental is
initially administered through the primary line, an additional
dose can be given through the backup line before the last
two drugs are injected. Id., at 279–280, 337–338, 978–979.
The IV team has one hour to establish both the primary
and backup IVs, a length of time the trial court found to be
“not excessive but rather necessary,” id., at 762, contrary to
petitioners’ claim that using an IV inserted after any “more
than ten or fifteen minutes of unsuccessful attempts is dan
gerous because the IV is almost certain to be unreliable,”
Brief for Petitioners 47. And, in any event, merely because
the protocol gives the IV team one hour to establish intrave
nous access does not mean that team members are required
to spend the entire hour in a futile attempt to do so. The

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qualifications of the IV team also substantially reduce the
risk of IV infiltration.
In addition, the presence of the warden and deputy warden
in the execution chamber with the prisoner allows them to
watch for signs of IV problems, including infiltration. Three
of the Commonwealth’s medical experts testified that iden
tifying signs of infiltration would be “very obvious,” even to
the average person, because of the swelling that would re
sult. App. 385–386. See id., at 353, 600–601. Kentucky’s
protocol specifically requires the warden to redirect the flow
of chemicals to the backup IV site if the prisoner does not
lose consciousness within 60 seconds. Id., at 978–979. In
light of these safeguards, we cannot say that the risks identi
fied by petitioners are so substantial or imminent as to
amount to an Eighth Amendment violation.
B
Nor does Kentucky’s failure to adopt petitioners’ proposed
alternatives demonstrate that the Commonwealth’s execu
tion procedure is cruel and unusual.
First, petitioners contend that Kentucky could switch from
a three-drug protocol to a one-drug protocol by using a single
dose of sodium thiopental or other barbiturate. Brief for
Petitioners 51–57. That alternative was not proposed to the
state courts below.4 As a result, we are left without any
findings on the effectiveness of petitioners’ barbiturate-only
4 Petitioners did allude to an “alternative chemical or combination of
chemicals” that could replace Kentucky’s three-drug protocol in their
post-trial brief, see App. 684, but based on the arguments presented there,
it is clear they intended to refer only to other, allegedly less painful drugs
that could substitute for potassium chloride as a heart-stopping agent, see
id., at 701. Likewise, the only alternatives to the three-drug protocol
presented to the Kentucky Supreme Court were those that replaced po
tassium chloride with other drugs for inducing cardiac arrest, or that omit
ted pancuronium bromide, or that added an analgesic to relieve pain. See
Brief for Appellants in No. 2005–SC–00543, pp. 38, 39, 40.

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protocol, despite scattered references in the trial testimony
to the sole use of sodium thiopental or pentobarbital as a
preferred method of execution. See Reply Brief for Peti
tioners 18, n. 6.
In any event, the Commonwealth’s continued use of the
three-drug protocol cannot be viewed as posing an “objec
tively intolerable risk” when no other State has adopted the
one-drug method and petitioners proffered no study showing
that it is an equally effective manner of imposing a death
sentence. See App. 760–761, n. 8 (“Plaintiffs have not pre
sented any scientific study indicating a better method of exe
cution by lethal injection”). Indeed, the State of Tennessee,
after reviewing its execution procedures, rejected a proposal
to adopt a one-drug protocol using sodium thiopental. The
State concluded that the one-drug alternative would take
longer than the three-drug method and that the “required
dosage of sodium thiopental would be less predictable and
more variable when it is used as the sole mechanism for pro
ducing death . . . .” Workman, 486 F. 3d, at 919 (Appendix
A, ¶(A)(3)). We need not endorse the accuracy of those con
clusions to note simply that the comparative efficacy of a
one-drug method of execution is not so well established that
Kentucky’s failure to adopt it constitutes a violation of the
Eighth Amendment.
Petitioners also contend that Kentucky should omit the
second drug, pancuronium bromide, because it serves no
therapeutic purpose while suppressing muscle movements
that could reveal an inadequate administration of the first
drug. The state trial court, however, specifically found that
pancuronium serves two purposes. First, it prevents invol
untary physical movements during unconsciousness that may
accompany the injection of potassium chloride. App. 763.
The Commonwealth has an interest in preserving the dignity
of the procedure, especially where convulsions or seizures
could be misperceived as signs of consciousness or distress.
Second, pancuronium stops respiration, hastening death.

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Ibid. Kentucky’s decision to include the drug does not of
fend the Eighth Amendment.5
Petitioners’ barbiturate-only protocol, they contend, is not
untested; it is used routinely by veterinarians in putting ani
mals to sleep. Moreover, 23 States, including Kentucky, bar
veterinarians from using a neuromuscular paralytic agent
like pancuronium bromide, either expressly or, like Ken
tucky, by specifically directing the use of a drug like sodium
pentobarbital. See Brief for Dr. Kevin Concannon et al. as
Amici Curiae 18, n. 5. If pancuronium is too cruel for ani
mals, the argument goes, then it must be too cruel for the
condemned inmate. Whatever rhetorical force the argu
ment carries, see Workman, supra, at 909 (describing the
comparison to animal euthanasia as “more of a debater’s
point”), it overlooks the States’ legitimate interest in provid
ing for a quick, certain death. In the Netherlands, for ex
ample, where physician-assisted euthanasia is permitted, the
Royal Dutch Society for the Advancement of Pharmacy rec
ommends the use of a muscle relaxant (such as pancuronium
dibromide) in addition to thiopental in order to prevent a
prolonged, undignified death. See Kimsma, Euthanasia and
Euthanizing Drugs in The Netherlands, reprinted in Drug
Use in Assisted Suicide and Euthanasia 193, 200, 204 (M.
Battin & A. Lipman eds. 1996). That concern may be less
compelling in the veterinary context, and in any event other
methods approved by veterinarians—such as stunning the
animal or severing its spinal cord, see 6 Tr. 758–759 (Apr. 20,
2005)—make clear that veterinary practice for animals is not
an appropriate guide to humane practices for humans.
Petitioners also fault the Kentucky protocol for lacking a
systematic mechanism for monitoring the “anesthetic depth”
5 Justice Stevens’s conclusion that the risk addressed by pancuronium
bromide is “vastly outweighed” by the risk of pain at issue here, see post,
at 73 (opinion concurring in judgment), depends, of course, on the magni
tude of the risk of such pain. As explained, that risk is insignificant in
light of the safeguards Kentucky has adopted.

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of the prisoner. Under petitioners’ scheme, qualified per
sonnel would employ monitoring equipment, such as a Bi
spectral Index (BIS) monitor, blood pressure cuff, or EKG to
verify that a prisoner has achieved sufficient unconsciousness
before injecting the final two drugs. The visual inspection
performed by the warden and deputy warden, they maintain,
is an inadequate substitute for the more sophisticated proce
dures they envision. Brief for Petitioners 19, 58.
At the outset, it is important to reemphasize that a proper
dose of thiopental obviates the concern that a prisoner will
not be sufficiently sedated. All the experts who testified at
trial agreed on this point. The risks of failing to adopt addi
tional monitoring procedures are thus even more “remote”
and attenuated than the risks posed by the alleged inadequa
cies of Kentucky’s procedures designed to ensure the deliv
ery of thiopental. See Hamilton v. Jones, 472 F. 3d 814, 817
(CA10 2007) (per curiam); Taylor v. Crawford, 487 F. 3d
1072, 1084 (CA8 2007).
But more than this, Kentucky’s expert testified that a
blood pressure cuff would have no utility in assessing the
level of the prisoner’s unconsciousness following the intro
duction of sodium thiopental, which depresses circulation.
App. 578. Furthermore, the medical community has yet
to endorse the use of a BIS monitor, which measures brain
function, as an indication of anesthetic awareness. Ameri
can Society of Anesthesiologists, Practice Advisory for Intra
operative Awareness and Brain Function Monitoring, 104
Anesthesiology 847, 855 (Apr. 2006); see Brown v. Beck, 445
F. 3d 752, 754–755 (CA4 2006) (Michael, J., dissenting). The
asserted need for a professional anesthesiologist to interpret
the BIS monitor readings is nothing more than an argument
against the entire procedure, given that both Kentucky law,
see Ky. Rev. Stat. Ann. § 431.220(3), and the American Soci
ety of Anesthesiologists’ own ethical guidelines, see Brief for
American Society of Anesthesiologists as Amicus Curiae
2–3, prohibit anesthesiologists from participating in capi

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tal punishment. Nor is it pertinent that the use of a blood
pressure cuff and EKG is “the standard of care in surgery
requiring anesthesia,” as the dissent points out. Post,
at 119. Petitioners have not shown that these supplemen
tary procedures, drawn from a different context, are neces
sary to avoid a substantial risk of suffering.
The dissent believes that rough-and-ready tests for check
ing consciousness—calling the inmate’s name, brushing his
eyelashes, or presenting him with strong, noxious odors—
could materially decrease the risk of administering the sec
ond and third drugs before the sodium thiopental has taken
effect. See post, at 118. Again, the risk at issue is already
attenuated, given the steps Kentucky has taken to ensure
the proper administration of the first drug. Moreover, the
scenario the dissent posits involves a level of unconscious
ness allegedly sufficient to avoid detection of improper ad
ministration of the anesthesia under Kentucky’s procedure,
but not sufficient to prevent pain. See post, at 121–122.
There is no indication that the basic tests the dissent advo
cates can make such fine distinctions. If these tests are ef
fective only in determining whether the sodium thiopental
has entered the inmate’s bloodstream, see post, at 118–119,
the record confirms that the visual inspection of the IV site
under Kentucky’s procedure achieves that objective. See
supra, at 56.6
The dissent would continue the stay of these executions
(and presumably the many others held in abeyance pending
decision in this case) and send the case back to the lower
courts to determine whether such added measures redress
an “untoward” risk of pain. Post, at 123. But an inmate
6 Resisting this point, the dissent rejects the expert testimony that
problems with the IV administration of sodium thiopental would be obvi
ous, see post, at 122, testimony based not only on the pain that would
result from injecting the first drug into tissue rather than the vein, see
App. 600–601, but also on the swelling that would occur, see id., at 353.
See also id., at 385–386. Neither of these expert conclusions was dis
puted below.

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cannot succeed on an Eighth Amendment claim simply by
showing one more step the State could take as a failsafe for
other, independently adequate measures. This approach
would serve no meaningful purpose and would frustrate the
State’s legitimate interest in carrying out a sentence of death
in a timely manner. See Baze v. Parker, 371 F. 3d 310, 317
(CA6 2004) (petitioner Baze sentenced to death in 1994);
Bowling v. Parker, 138 F. Supp. 2d 821, 840 (ED Ky. 2001)
(petitioner Bowling sentenced to death in 1991).
Justice Stevens suggests that our opinion leaves the dis
position of other cases uncertain, see post, at 71, but the
standard we set forth here resolves more challenges than he
acknowledges. A stay of execution may not be granted on
grounds such as those asserted here unless the condemned
prisoner establishes that the State’s lethal injection protocol
creates a demonstrated risk of severe pain. He must show
that the risk is substantial when compared to the known and
available alternatives. A State with a lethal injection pro
tocol substantially similar to the protocol we uphold today
would not create a risk that meets this standard.
* * *
Reasonable people of good faith disagree on the morality
and efficacy of capital punishment, and for many who oppose
it, no method of execution would ever be acceptable. But as
Justice Frankfurter stressed in Resweber, “[o]ne must be on
guard against finding in personal disapproval a reflection of
more or less prevailing condemnation.” 329 U. S., at 471
(concurring opinion). This Court has ruled that capital pun
ishment is not prohibited under our Constitution, and that
the States may enact laws specifying that sanction. “[T]he
power of a State to pass laws means little if the State cannot
enforce them.” McCleskey v. Zant, 499 U. S. 467, 491 (1991).
State efforts to implement capital punishment must certainly
comply with the Eighth Amendment, but what that Amend
ment prohibits is wanton exposure to “objectively intolerable

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62 BAZE v. REES
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risk,” Farmer, 511 U. S., at 846, and n. 9, not simply the pos
sibility of pain.
Kentucky has adopted a method of execution believed to
be the most humane available, one it shares with 35 other
States. Petitioners agree that, if administered as intended,
that procedure will result in a painless death. The risks of
maladministration they have suggested—such as improper
mixing of chemicals and improper setting of IVs by trained
and experienced personnel—cannot remotely be character
ized as “objectively intolerable.” Kentucky’s decision to ad
here to its protocol despite these asserted risks, while adopt
ing safeguards to protect against them, cannot be viewed as
probative of the wanton infliction of pain under the Eighth
Amendment. Finally, the alternative that petitioners
belatedly propose has problems of its own, and has never
been tried by a single State.
Throughout our history, whenever a method of execution
has been challenged in this Court as cruel and unusual, the
Court has rejected the challenge. Our society has nonethe
less steadily moved to more humane methods of carrying out
capital punishment. The firing squad, hanging, the electric
chair, and the gas chamber have each in turn given way to
more humane methods, culminating in today’s consensus on
lethal injection. Gomez v. United States Dist. Court for
Northern Dist. of Cal., 503 U. S. 653, 657 (1992) (Stevens, J.,
dissenting); App. 755. The broad framework of the Eighth
Amendment has accommodated this progress toward more
humane methods of execution, and our approval of a particu
lar method in the past has not precluded legislatures from
taking the steps they deem appropriate, in light of new de
velopments, to ensure humane capital punishment. There
is no reason to suppose that today’s decision will be any
different.7
7 We do not agree with Justice Stevens that anything in our opinion
undermines or remotely addresses the validity of capital punishment.
See post, at 80–81. The fact that society has moved to progressively more

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63 Cite as: 553 U. S. 35 (2008)
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The judgment below concluding that Kentucky’s procedure
is consistent with the Eighth Amendment is, accordingly,
affirmed.
It is so ordered.
Justice Alito, concurring.
I join the plurality opinion but write separately to explain
my view of how the holding should be implemented. The
opinion concludes that “a State’s refusal to change its method
[of execution] can be viewed as ‘cruel and unusual’ under the
Eighth Amendment” if the State, “without a legitimate peno
logical justification,” rejects an alternative method that is
“feasible” and “readily” available and that would “signifi
cantly reduce a substantial risk of severe pain.” Ante, at 52.
Properly understood, this standard will not, as Justice
Thomas predicts, lead to litigation that enables “those seek
ing to abolish the death penalty . . . to embroil the States
in never-ending litigation concerning the adequacy of their
execution procedures.” Post, at 105 (opinion concurring in
judgment).
I
As the plurality opinion notes, the constitutionality of capi
tal punishment is not before us in this case, and therefore
we proceed on the assumption that the death penalty is con
stitutional. Ante, at 47. From that assumption, it follows
that there must be a constitutional means of carrying out a
death sentence.
We also proceed in this case on the assumption that lethal
injection is a constitutional means of execution. See Gregg
v. Georgia, 428 U. S. 153, 175 (1976) ( joint opinion of Stewart,
Powell, and Stevens, JJ.) (“[I]n assessing a punishment se
lected by a democratically elected legislature against the
humane methods of execution does not suggest that capital punishment
itself no longer serves valid purposes; we would not have supposed that
the case for capital punishment was stronger when it was imposed pre
dominantly by hanging or electrocution.

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64 BAZE v. REES
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constitutional measure, we presume its validity”). Lethal
injection was adopted by the Federal Government and 36
States because it was thought to be the most humane method
of execution, and petitioners here do not contend that lethal
injection should be abandoned in favor of any of the methods
that it replaced—execution by electric chair, the gas cham
ber, hanging, or a firing squad. Since we assume for present
purposes that lethal injection is constitutional, the use of
that method by the Federal Government and the States must
not be blocked by procedural requirements that cannot prac
ticably be satisfied.
Prominent among the practical constraints that must be
taken into account in considering the feasibility and avail
ability of any suggested modification of a lethal injection pro
tocol are the ethical restrictions applicable to medical profes
sionals. The first step in the lethal injection protocols
currently in use is the anesthetization of the prisoner. If
this step is carried out properly, it is agreed, the prisoner
will not experience pain during the remainder of the proce
dure. Every day, general anesthetics are administered to
surgical patients in this country, and if the medical profes
sionals who participate in these surgeries also participated
in the anesthetization of prisoners facing execution by lethal
injection, the risk of pain would be minimized. But the eth
ics rules of medical professionals—for reasons that I cer
tainly do not question here—prohibit their participation in
executions.
Guidelines issued by the American Medical Association
(AMA) state that “[a]n individual’s opinion on capital punish
ment is the personal moral decision of the individual,” but
that “[a] physician, as a member of a profession dedicated to
preserving life when there is hope of doing so, should not
be a participant in a legally authorized execution.” AMA,
Code of Medical Ethics, Policy E–2.06 Capital Punishment
(2000), online at http://www.ama-assn.org/ama1/pub/upload/
mm/369/e206capitalpunish.pdf (all Internet materials as vis

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65 Cite as: 553 U. S. 35 (2008)
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ited Apr. 14, 2008, and available in Clerk of Court’s case file).
The guidelines explain:
“Physician participation in an execution includes, but is
not limited to, the following actions: prescribing or ad
ministering tranquilizers and other psychotropic agents
and medications that are part of the execution proce
dure; monitoring vital signs on site or remotely (in
cluding monitoring electrocardiograms); attending or
observing an execution as a physician; and rendering of
technical advice regarding execution.” Ibid.
The head of ethics at the AMA has reportedly opined that
“[e]ven helping to design a more humane protocol would dis
regard the AMA code.” Marris, Will Medics’ Qualms Kill
the Death Penalty? 441 Nature 8–9 (May 4, 2006).
The American Nurses Association (ANA) takes the posi
tion that participation in an execution “is a breach of the
ethical traditions of nursing, and the Code for Nurses.”
ANA, Position Statement: Nurses’ Participation in Capital
Punishment (1994), online at http://nursingworld.org/Main
menu Categories / Health care and PolicyIssues / ANAPosition
Statements / EthicsandHumanRights.aspx. This means, the
ANA explains, that a nurse must not “take part in assess
ment, supervision or monitoring of the procedure or the pris
oner; procuring, prescribing or preparing medications or
solutions; inserting the intravenous catheter; injecting the
lethal solution; and attending or witnessing the execution as
a nurse.” Ibid.
The National Association of Emergency Medical Techni
cians (NAEMT) holds that “[p]articipation in capital punish
ment is inconsistent with the ethical precepts and goals of
the [Emergency Medical Services] profession.” NAEMT,
Position Statement on EMT and Paramedic Participation
in Capital Punishment (June 9, 2006), online at http://
www.naemt.org/aboutNAEMT/capitalpunishment.htm. The
NAEMT’s Position Statement advises that emergency medi

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cal technicians and paramedics should refrain from the same
activities outlined in the ANA statement. Ibid.
Recent litigation in California has demonstrated the effect
of such ethics rules. Michael Morales, who was convicted
and sentenced to death for a 1981 murder, filed a federal civil
rights action challenging California’s lethal injection proto
col, which, like Kentucky’s, calls for the sequential adminis
tration of three drugs: sodium pentothal, pancuronium bro
mide, and potassium chloride. The District Court enjoined
the State from proceeding with the execution unless it either
(1) used only sodium pentothal or another barbiturate or
(2) ensured that an anesthesiologist was present to ensure
that Morales remained unconscious throughout the process.
Morales v. Hickman, 415 F. Supp. 2d 1037, 1047 (ND Cal.
2006). The Ninth Circuit affirmed the District Court’s
order, Morales v. Hickman, 438 F. 3d 926, 931 (2006), and
the State arranged for two anesthesiologists to be present
for the execution. However, they subsequently concluded
that “they could not proceed for reasons of medical ethics,”
Morales v. Tilton, 465 F. Supp. 2d 972, 976 (ND Cal. 2006),
and neither Morales nor any other prisoner in California has
since been executed, see Denno, The Lethal Injection Quan
dary: How Medicine Has Dismantled the Death Penalty, 76
Ford. L. Rev. 49 (2007).
Objections to features of a lethal injection protocol must
be considered against the backdrop of the ethics rules of
medical professionals and related practical constraints. As
suming, as previously discussed, that lethal injection is not
unconstitutional per se, it follows that a suggested modifica
tion of a lethal injection protocol cannot be regarded as “fea
sible” or “readily” available if the modification would require
participation—either in carrying out the execution or in
training those who carry out the execution—by persons
whose professional ethics rules or traditions impede their
participation.

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II
In order to show that a modification of a lethal injection
protocol is required by the Eighth Amendment, a prisoner
must demonstrate that the modification would “significantly
reduce a substantial risk of severe pain.” Ante, at 52 (em
phasis added). Showing merely that a modification would
result in some reduction in risk is insufficient. Moreover,
an inmate should be required to do more than simply offer
the testimony of a few experts or a few studies. Instead,
an inmate challenging a method of execution should point to
a well-established scientific consensus. Only if a State re
fused to change its method in the face of such evidence would
the State’s conduct be comparable to circumstances that the
Court has previously held to be in violation of the Eighth
Amendment. See Farmer v. Brennan, 511 U. S. 825, 836
(1994).
The present case well illustrates the need for this type of
evidence. Although there has been a proliferation of litiga
tion challenging current lethal injection protocols, evidence
regarding alleged defects in these protocols and the sup
posed advantages of alternatives is strikingly haphazard and
unreliable. As The Chief Justice and Justice Breyer
both note, the much-discussed Lancet article, Koniaris, Zim
mers, Lubarsky, & Sheldon, Inadequate Anaesthesia in Le
thal Injection for Execution, 365 Lancet 1412 (Apr. 2005),
that prompted criticism of the three-drug protocol has now
been questioned, see Groner, Inadequate Anaesthesia in Le
thal Injection for Execution, 366 Lancet 1073 (Sept. 2005).
And the lack of clear guidance in the currently available
scientific literature is dramatically illustrated by the con
clusions reached by petitioners and by Justice Stevens
regarding what they view as superior alternatives to the
three-drug protocol.
Petitioners’ chief argument is that Kentucky’s procedure
violates the Eighth Amendment because it does not employ

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68 BAZE v. REES
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a one-drug protocol involving a lethal dose of an anesthetic.
By “relying . . . on a lethal dose of an anesthetic,” petitioners
contend, Kentucky “would virtually eliminate the risk of
pain.” Brief for Petitioners 51. Petitioners point to expert
testimony in the trial court that “a three-gram dose of thio
pental would cause death within three minutes to fifteen
minutes.” Id., at 54, n. 16.
The accuracy of that testimony is not universally accepted.
Indeed, the medical authorities in the Netherlands, where
assisted suicide is legal, have recommended against the use
of a lethal dose of a barbiturate. An amicus supporting
petitioners, Dr. Robert D. Truog, Professor of Medical Eth
ics and Anesthesiology at Harvard Medical School, has made
the following comments about the use of a lethal dose of a
barbiturate:
“A number of experts have said that 2 or 3 or 5
g[rams] of pentothal is absolutely going to be lethal.
The fact is that, at least in this country, none of us have
any experience with this. . . .
“If we go to Holland, where euthanasia is legal, and
[we] look at a study from 2000 of 535 cases of euthanasia,
in 69% of those cases, they used a paralytic agent.
Now, what do they know that we haven’t figured out
yet? I think what they know is that it’s actually very
difficult to kill someone with just a big dose of a barbitu
rate. And, in fact, they report that in 6% of those cases,
there were problems with completion. And in I think
five of those, the person actually woke up, came back
out of coma.” Perspective Roundtable: Physicians and
Execution—Highlights from a Discussion of Lethal In
jection, 358 New England J. Med. 448 (2008).
Justice Stevens does not advocate a one-drug protocol
but argues that “States wishing to decrease the risk that
future litigation will delay executions or invalidate their pro
tocols would do well to reconsider their continued use of

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pancuronium bromide” in the second step of the three-drug
protocol.* Post, at 77 (opinion concurring in judgment).
But this very drug, pancuronium bromide, is recommended
by the Royal Dutch Society for the Advancement of Phar
macy as the second of the two drugs to be used in cases of
euthanasia. See Kimsma, Euthanasia and Euthanizing
Drugs in The Netherlands, reprinted in Drug Use in As
sisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A.
Lipman eds. 1996).
My point in citing the Dutch study is not that a multidrug
protocol is in fact better than a one-drug protocol or that it
is advisable to use pancuronium bromide. Rather, my point
is that public policy on the death penalty, an issue that stirs
deep emotions, cannot be dictated by the testimony of an
expert or two or by judicial findings of fact based on such
testimony.
III
The seemingly endless proceedings that have character
ized capital litigation during the years following Gregg are
well documented. In 1989, the Report of the Judicial Con
ference’s Ad Hoc Committee on Federal Habeas Corpus in
Capital Cases, chaired by Justice Powell, noted the lengthy
delays produced by collateral litigation in death penalty
cases. See Committee Report and Proposal 2–4. The
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) was designed to address this problem. See, e. g.,
Woodford v. Garceau, 538 U. S. 202, 206 (2003) (“Congress
enacted AEDPA to reduce delays in the execution of
*In making this recommendation, he states that “[t]here is a general
understanding among veterinarians that the risk of pain is sufficiently
serious that the use of [this] drug should be proscribed when an animal’s
life is being terminated.” Post, at 71. But the American Veteri
nary Medical Association (AVMA) guidelines take pains to point out that
they should not be interpreted as commenting on the execution of humans
by lethal injection. AVMA, Guidelines on Euthanasia (June 2007), online
at http://avma.org/issues/animal_welfare/euthanasia.pdf.

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state and federal criminal sentences, particularly in capital
cases . . . ” (citing Williams v. Taylor, 529 U. S. 362, 386
(2000) (opinion of Stevens, J.))); H. R. Rep. No. 104–23, p. 8
(1995) (stating that AEDPA was “designed to curb the abuse
of the habeas corpus process, and particularly to address the
problem of delay and repetitive litigation in capital cases”).
Misinterpretation of the standard set out in the plurality
opinion or adoption of the standard favored by the dissent
and Justice Breyer would create a grave danger of ex
tended delay. The dissenters and Justice Breyer would
hold that the protocol used in carrying out an execution by
lethal injection violates the Eighth Amendment if it creates
an “untoward, readily avoidable risk of inflicting severe and
unnecessary pain.” See post, at 123 (Ginsburg, J., dissent
ing) (emphasis added); post, at 107 (Breyer, J., concurring
in judgment). Determining whether a risk is “untoward,”
we are told, requires a weighing of three factors—the sever
ity of the pain that may occur, the likelihood of this pain, and
the availability of alternative methods. Post, at 116 (Gins
burg, J., dissenting). We are further informed that “[t]he
three factors are interrelated; a strong showing on one re
duces the importance of the others.” Ibid.
An “untoward” risk is presumably a risk that is “unfortu
nate” or “marked by or causing trouble or unhappiness.”
Webster’s Third New International Dictionary 2513 (1971);
Random House Dictionary of the English Language 1567
(1967). This vague and malleable standard would open the
gates for a flood of litigation that would go a long way toward
bringing about the end of the death penalty as a practical
matter. While I certainly do not suggest that this is the
intent of the Justices who favor this test, the likely conse
quences are predictable.
The issue presented in this case—the constitutionality of
a method of execution—should be kept separate from the
controversial issue of the death penalty itself. If the Court
wishes to reexamine the latter issue, it should do so directly,

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as Justice Stevens now suggests. Post, at 81. The
Court should not produce a de facto ban on capital punish
ment by adopting method-of-execution rules that lead to liti
gation gridlock.
Justice Stevens, concurring in the judgment.
When we granted certiorari in this case, I assumed that
our decision would bring the debate about lethal injection as
a method of execution to a close. It now seems clear that it
will not. The question whether a similar three-drug proto
col may be used in other States remains open, and may well
be answered differently in a future case on the basis of a
more complete record. Instead of ending the controversy,
I am now convinced that this case will generate debate not
only about the constitutionality of the three-drug protocol,
and specifically about the justification for the use of the para
lytic agent, pancuronium bromide, but also about the justifi
cation for the death penalty itself.
I
Because it masks any outward sign of distress, pancu
ronium bromide creates a risk that the inmate will suffer
excruciating pain before death occurs. There is a general
understanding among veterinarians that the risk of pain is
sufficiently serious that the use of the drug should be pro
scribed when an animal’s life is being terminated.1 As a
1 The 2000 Report of the American Veterinary Medical Association
(AVMA) Panel on Euthanasia stated that a “combination of pentobarbital
with a neuromuscular blocking agent is not an acceptable euthanasia
agent.” 218 J. Am. Veterinary Med. Assn. 669, 680 (2001). In a 2006
supplemental statement, however, the AVMA clarified that this statement
was intended as a recommendation against mixing a barbiturate and neu
romuscular blocking agent in the same syringe, since such practice creates
the possibility that the paralytic will take effect before the barbiturate,
rendering the animal paralyzed while still conscious. The 2007 AVMA
Guidelines on Euthanasia plainly state that the application of a barbitu
rate, paralyzing agent, and potassium chloride delivered in separate sy

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result of this understanding among knowledgeable profes
sionals, several States—including Kentucky—have enacted
legislation prohibiting use of the drug in animal euthanasia.
See 2 Ky. Admin. Regs., tit. 201, ch. 16:090, § 5(1) (2004).2 It
is unseemly—to say the least—that Kentucky may well kill
ringes or stages is not discussed in the report. Several veterinarians,
however, have filed an amici brief in this case arguing that the three-drug
cocktail fails to measure up to veterinary standards and that the use of
pancuronium bromide should be prohibited. See Brief for Dr. Kevin
Concannon et al. as Amici Curiae 16–18. The Humane Society has also
declared “inhumane” the use of “any combination of sodium pentobarbital
with a neuromuscular blocking agent.” R. Rhoades, The Humane Society
of the United States, Euthanasia Training Manual 133 (2002); see also
Alper, Anesthetizing the Public Conscience: Lethal Injection and Animal
Euthanasia, 35 Ford. Urb. L. J. 817, 840 (2008) (concluding, based on a
comprehensive study of animal euthanasia laws and regulations, that “the
field of animal euthanasia has reached a unanimous consensus that neu
romuscular blocking agents like pancuronium have no legitimate place in
the execution process”), online at http://papers.ssrn.com/sol3/papers.cfm?
abstract_id=1109258 (all Internet materials as visited Apr. 10, 2008, and
available in Clerk of Court’s case file).
2 See also, e. g., Fla. Stat. § 828.058(3) (2006) (“[A]ny substance which acts
as a neuromuscular blocking agent . . . may not be used on a dog or cat
for any purpose”); N. J. Stat. Ann. § 4:22–19.3 (West 1998) (“Whenever
any dog, cat, or any other domestic animal is to be destroyed, the use of
succinylcholine chloride, curare, curariform drugs, or any other substance
which acts as a neuromuscular blocking agent is prohibited”); N. Y.
Agric. & Mkts. Law Ann. § 374(2–b) (West 2004) (“No person shall euthan
ize any dog or cat with T–61, curare, any curariform drug, any neuro
muscular blocking agent or any other paralyzing drug”); Tenn. Code
Ann. § 44–17–303(c) (2007) (“Succinylcholine chloride, curare, curariform
mixtures . . . or any substance that acts as a neuromuscular blocking
agent . . . may not be used on any non-livestock animal for the purpose of
euthanasia”). According to a recent study, not a single State sanctions
the use of a paralytic agent in the administration of animal euthanasia, 9
States explicitly ban the use of such drugs, 13 others ban it by implica
tion—i. e., by mandating the use of nonparalytic drugs, 12 arguably ban it
by reference to the AVMA guidelines, and 8 others express a strong pref
erence for use of nonparalytic drugs. Alper, supra, at 841–842, and App. I
to Alper, supra, at 853.

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petitioners using a drug that it would not permit to be used
on their pets.
Use of pancuronium bromide is particularly disturbing be
cause—as the trial court specifically found in this case—it
serves “no therapeutic purpose.” App. 763. The drug’s
primary use is to prevent involuntary muscle movements,
and its secondary use is to stop respiration. In my view,
neither of these purposes is sufficient to justify the risk in
herent in the use of the drug.
The plurality believes that preventing involuntary move
ment is a legitimate justification for using pancuronium
bromide because “[t]he Commonwealth has an interest in
preserving the dignity of the procedure, especially where
convulsions or seizures could be misperceived as signs of con
sciousness or distress.” Ante, at 57. This is a woefully in
adequate justification. Whatever minimal interest there
may be in ensuring that a condemned inmate dies a dignified
death, and that witnesses to the execution are not made un
comfortable by an incorrect belief (which could easily be cor
rected) that the inmate is in pain, is vastly outweighed by
the risk that the inmate is actually experiencing excruciating
pain that no one can detect.3 Nor is there any necessity for
pancuronium bromide to be included in the cocktail to inhibit
respiration when it is immediately followed by potassium
chloride, which causes death quickly by stopping the in
mate’s heart.
3 Indeed, the decision by prison administrators to use the drug on hu
mans for esthetic reasons is not supported by any consensus of medical
professionals. To the contrary, the medical community has considered—
and rejected—this esthetic rationale for administering neuromuscular
blocking agents in end-of-life care for terminally ill patients whose families
may be disturbed by involuntary movements that are misperceived as
signs of pain or discomfort. As explained in an amici curiae brief submit
ted by critical care providers and clinical ethicists, the medical and medical
ethics communities have rejected this rationale because there is a danger
that such drugs will mask signs that the patient is actually in pain. See
Brief for Critical Care Providers et al. as Amici Curiae.

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Moreover, there is no nationwide endorsement of the use
of pancuronium bromide that merits any special presumption
of respect. While state legislatures have approved lethal
injection as a humane method of execution, the majority
have not enacted legislation specifically approving the use of
pancuronium bromide, or any given combination of drugs.4
And when the Colorado Legislature focused on the issue, it
specified a one-drug protocol consisting solely of sodium thio
pental. See Colo. Rev. Stat. Ann. § 18–1.3–1202 (2007).5 In
the majority of States that use the three-drug protocol, the
drugs were selected by unelected department of correction
4 Of the 35 state statutes providing for execution by lethal injection,
only approximately one-third specifically approve the use of a chemical
paralytic agent. See Ark. Code Ann. § 5–4–617 (2006); Idaho Code § 19–
2716 (Lexis 2004); Ill. Comp. Stat., ch. 725, § 5/119–5 (West 2006); Md.
Crim. Law Code Ann. § 2–303 (Lexis Supp. 2007); Miss. Code Ann. § 99–
19–51 (2007); Mont. Code Ann. § 46–19–103 (2007); N. H. Rev. Stat. Ann.
§ 630:5 (2007); N. M. Stat. Ann. § 31–14–11 (2000); N. C. Gen. Stat. Ann.
§ 15–187 (Lexis 2007); Okla. Stat., Tit. 22, § 1014 (West 2001); Ore. Rev.
Stat. § 137.473 (2003); Pa. Stat. Ann., Tit. 61, § 3004 (Purdon 1999); Wyo.
Stat. Ann. § 7–13–904 (2007). Twenty of the remaining States do not spec
ify any particular drugs. See Ariz. Rev. Stat. Ann. § 13–704 (West 2001);
Cal. Penal Code Ann. § 3604 (West 2000); Conn. Gen. Stat. § 54–100 (2007);
Del. Code Ann., Tit. 11, § 4209 (2006 Supp.); Fla. Stat. § 922.105 (2006); Ga.
Code Ann. § 17–10–38 (2004); Ind. Code § 35–38–6–1 (West 2004); Kan.
Stat. Ann. § 22–4001 (2006 Cum. Supp.); Ky. Rev. Stat. Ann. § 431.220
(West 2006); La. Stat. Ann. § 15:569 (West 2005); Mo. Rev. Stat. § 546.720
(2007 Cum. Supp.); Nev. Rev. Stat. § 176.355 (2007); Ohio Rev. Code Ann.
§ 2949.22 (Lexis 2006); S. C. Code Ann. § 24–3–530 (2007); S. D. Codified
Laws § 23A–27A–32 (Supp. 2007); Tenn. Code Ann. § 40–23–114 (2006);
Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet);
Utah Code Ann. § 77–18–5.5 (Lexis Supp. 2007); Va. Code Ann. § 53.1–234
(Lexis Supp. 2007); Wash. Rev. Code § 10.95.180 (2006).
5 Colorado’s statute provides for “a continuous intravenous injection of
a lethal quantity of sodium thiopental or other equally or more effective
substance sufficient to cause death.” § 18–1.3–1202. Despite the fact
that the statute specifies only sodium thiopental, it appears that Colorado
uses the same three drugs as other States. See Denno, The Lethal Injec
tion Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford.
L. Rev. 49, 97, and n. 322 (2007).

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officials with no specialized medical knowledge and without
the benefit of expert assistance or guidance. As such, their
drug selections are not entitled to the kind of deference af
forded legislative decisions.
Nor should the failure of other state legislatures, or of
Congress, to outlaw the use of the drug on condemned pris
oners be viewed as a nationwide endorsement of an unneces
sarily dangerous practice. Even in those States where the
legislature specifically approved the use of a paralytic agent,
review of the decisions that led to the adoption of the three
drug protocol has persuaded me that they are the product of
“ ‘administrative convenience’ ” and a “stereotyped reaction”
to an issue, rather than a careful analysis of relevant consid
erations favoring or disfavoring a conclusion. See Mathews
v. Lucas, 427 U. S. 495, 519, 520–521 (1976) (Stevens, J., dis
senting). Indeed, the trial court found that “the various
States simply fell in line” behind Oklahoma, adopting the
protocol without any critical analysis of whether it was the
best available alternative.6 App. 756; see also post, at 117
(Ginsburg, J., dissenting).
New Jersey’s experience with the creation of a lethal injec
tion protocol is illustrative. When New Jersey restored the
death penalty in 1983, its legislature “fell in line” and enacted
a statute that called for inmates to be executed by “continu
ous, intravenous administration until the person is dead of a
lethal quantity of an ultrashort-acting barbiturate in combi
nation with a chemical paralytic agent in a quantity sufficient
to cause death.” N. J. Stat. Ann. § 2C:49–2 (West 2005).
New Jersey Department of Corrections (DOC) officials, in
cluding doctors and administrators, immediately expressed
6 Notably, the Oklahoma medical examiner who devised the protocol has
disavowed the use of pancuronium bromide. When asked in a recent in
terview why he included it in his formula, he responded: “ ‘It’s a good
question. If I were doing it now, I would probably eliminate it.’ ” E.
Cohen, Lethal injection creator: Maybe it’s time to change formula, online
at http://www.cnn.com/2007/HEALTH/04/30/lethal.injection/index.html.

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concern. The capital sentencing unit’s chief doctor, for ex
ample, warned the assistant commissioner that he had
“ ‘concerns . . . in regard to the chemical substance classes
from which the lethal substances may be selected.’ ” Ed
wards, New Jersey’s Long Waltz With Death, 170 N. J. L. J.
657, 673 (2002).7 Based on these concerns, the former DOC
commissioner lobbied the legislature to amend the lethal in
jection statute to provide DOC with discretion to select more
humane drugs: “ ‘[We wanted] a generic statement, like
“drugs to be determined and identified by the commissioner,
or the attorney general, or the Department of Health” ’ . . . .
‘Who knew what the future was going to bring?’ ” Ibid.
And these concerns likely motivated the DOC’s decision to
adopt a protocol that omitted pancuronium bromide—despite
the legislature’s failure to act on the proposed amendment.
See Denno, When Legislatures Delegate Death: The Trou
bling Paradox Behind State Uses of Electrocution and Le
thal Injection and What It Says About Us, 63 Ohio St. L. J.
63, 117–118, 233 (2002) (explaining that the New Jersey pro
tocol in effect in 2002 called for use of a two-drug cocktail
consisting of sodium thiopental and potassium chloride).
Indeed, DOC officials seemed to harbor the same concerns
when they undertook to revise New Jersey’s lethal injection
protocol in 2005. At a public hearing on the proposed
amendment, the DOC supervisor of legal and legislative
affairs told attendees that the drugs to be used in the lethal
injection protocol were undetermined:
“Those substances have not been determined at this
point because when and if an execution is scheduled the
7 Officials of the DOC had before them an advisory paper submitted by
a group of New York doctors recommending sodium thiopental “ ‘without
the addition of other drugs,’ ” and the supervisor of the health services
unit was informed in a memo from a colleague that pancuronium bromide
“ ‘will cause paralysis of the vocal chords and stop breathing, and hence
could cause death by asphyxiation.’ ” Edwards, 170 N. J. L. J., at 673.

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[DOC] will be doing research and determining the
state-of-the-art drugs at that point in time . . . . We
have not made a decision on which specific drugs be
cause we will have several months once we know that
somebody is going to be executed and it will give us the
opportunity at that point to decide which would be the
most humane.
“And things change. We understand that the state
of-the-art is changing daily so to say we are going to use
something today when something may be more humane
becomes known later wouldn’t make sense for us.”
Tr. of Public Hearing on Proposed Amendments to the
New Jersey Lethal Injection Protocol 36 (Feb. 4, 2005).
It is striking that when this state agency—with some spe
cialized medical knowledge and with the benefit of some
expert assistance and guidance—focused on the issue, it
disagreed with the legislature’s “stereotyped reaction,”
Mathews, 427 U. S., at 520, 521 (Stevens, J., dissenting), and
specified a two-drug protocol that omitted pancuronium
bromide.8
In my view, therefore, States wishing to decrease the risk
that future litigation will delay executions or invalidate their
protocols would do well to reconsider their continued use of
pancuronium bromide.9
8 Further, concerns about this issue may have played a role in New
Jersey’s subsequent decisions to create a New Jersey Death Penalty Study
Commission in 2006, and ultimately to abolish the death penalty in
2007.
9 For similar reasons, States may also be well advised to reconsider the
sufficiency of their procedures for checking the inmate’s consciousness.
See post, at 118–123 (Ginsburg, J., dissenting).
Justice Alito correctly points out that the Royal Dutch Society for
the Advancement of Pharmacy recommends pancuronium bromide “as the
second of the two drugs to be used in cases of euthanasia.” Ante, at
69 (concurring opinion). In the Netherlands, however, physicians with
training in anesthesiology are involved in assisted suicide. For reasons

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II
The thoughtful opinions written by The Chief Justice
and by Justice Ginsburg have persuaded me that current
decisions by state legislatures, by the Congress of the United
States, and by this Court to retain the death penalty as a
part of our law are the product of habit and inattention
rather than an acceptable deliberative process that weighs
the costs and risks of administering that penalty against its
identifiable benefits, and rest in part on a faulty assumption
about the retributive force of the death penalty.
In Gregg v. Georgia, 428 U. S. 153 (1976), we explained that
unless a criminal sanction serves a legitimate penological
function, it constitutes “gratuitous infliction of suffering” in
violation of the Eighth Amendment. We then identified
three societal purposes for death as a sanction: incapacita
tion, deterrence, and retribution. See id., at 183, and n. 28
( joint opinion of Stewart, Powell, and Stevens, JJ.). In the
past three decades, however, each of these rationales has
been called into question.
While incapacitation may have been a legitimate rationale
in 1976, the recent rise in statutes providing for life impris
onment without the possibility of parole demonstrates that
incapacitation is neither a necessary nor a sufficient justifi
cation for the death penalty.10 Moreover, a recent poll indi
cates that support for the death penalty drops significantly
when life without the possibility of parole is presented as an
Justice Alito details, see ante, at 64–66, physicians have no similar role
in American executions. When trained medical personnel administer an
esthesia and monitor the individual’s anesthetic depth, the serious risks
that concern me are not presented.
10 Forty-eight States now have some form of life imprisonment without
parole, with the majority of statutes enacted within the last two decades.
See Note, A Matter of Life and Death: The Effect of Life-Without-Parole
Statutes on Capital Punishment, 119 Harv. L. Rev. 1838, 1839, 1841–1844
(2006).

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alternative option.11 And the available sociological evidence
suggests that juries are less likely to impose the death pen
alty when life without parole is available as a sentence.12
The legitimacy of deterrence as an acceptable justification
for the death penalty is also questionable, at best. Despite
30 years of empirical research in the area, there remains
no reliable statistical evidence that capital punishment
in fact deters potential offenders.13 In the absence of such
evidence, deterrence cannot serve as a sufficient peno
logical justification for this uniquely severe and irrevocable
punishment.
We are left, then, with retribution as the primary rationale
for imposing the death penalty. And indeed, it is the retri
bution rationale that animates much of the remaining enthu
11 See R. Dieter, Sentencing for Life: Americans Embrace Alternatives
to the Death Penalty (Apr. 1993), online at http://www.deathpenaltyinfo.
org/article.php?scid=45&did=481.
12 In one study, potential capital jurors in Virginia stated that knowing
about the existence of statutes providing for life without the possibility of
parole would significantly influence their sentencing decision. In another
study, a significant majority of potential capital jurors in Georgia said they
would be more likely to select a life sentence over a death sentence if they
knew that the defendant would be ineligible for parole for at least 25 years.
See Note, 119 Harv. L. Rev., at 1845. Indeed, this insight drove our deci
sion in Simmons v. South Carolina, 512 U. S. 154 (1994), that capital de
fendants have a due process right to require that their sentencing juries
be informed of their ineligibility for parole.
13 Admittedly, there has been a recent surge in scholarship asserting the
deterrent effect of the death penalty, see, e. g., Mocan & Gittings, Getting
Off Death Row: Commuted Sentences and the Deterrent Effect of Capital
Punishment, 46 J. Law & Econ. 453 (2003); Adler & Summers, Capital
Punishment Works, Wall Street Journal, Nov. 2, 2007, p. A13, but there
has been an equal, if not greater, amount of scholarship criticizing the
methodologies of those studies and questioning the results, see, e. g.,
Fagan, Death and Deterrence Redux: Science, Law and Causal Reasoning
on Capital Punishment, 4 Ohio St. J. Crim. L. 255 (2006); Donohue &
Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty
Debate, 58 Stan. L. Rev. 791 (2005).

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siasm for the death penalty.14 As Lord Justice Denning ar
gued in 1950, “ ‘some crimes are so outrageous that society
insists on adequate punishment, because the wrong-doer de
serves it, irrespective of whether it is a deterrent or not.’ ”
See Gregg, 428 U. S., at 184, n. 30. Our Eighth Amendment
jurisprudence has narrowed the class of offenders eligible for
the death penalty to include only those who have committed
outrageous crimes defined by specific aggravating factors.
It is the cruel treatment of victims that provides the most
persuasive arguments for prosecutors seeking the death pen
alty. A natural response to such heinous crimes is a thirst
for vengeance.15
At the same time, however, as the thoughtful opinions by
The Chief Justice and Justice Ginsburg make pellucidly
clear, our society has moved away from public and painful
retribution toward ever more humane forms of punishment.
State-sanctioned killing is therefore becoming more and
more anachronistic. In an attempt to bring executions in
line with our evolving standards of decency, we have adopted
increasingly less painful methods of execution, and then de
clared previous methods barbaric and archaic. But by re
quiring that an execution be relatively painless, we necessar
ily protect the inmate from enduring any punishment that is
14 Retribution is the most common basis of support for the death penalty.
A recent study found that 37% of death penalty supporters cited “[a]n eye
for an eye/they took a life/fits the crime” as their reason for supporting
capital punishment. Another 13% cited “They deserve it.” The next
most common reasons—“[s]av[ing] taxpayers money/cost associated with
prison” and deterrence—were each cited by 11% of supporters. See
Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Jus
tice Statistics 147 (2003) (Table 2.55), online at http://www.albany.edu/
sourcebook/pdf/t255.pdf.
15 For example, family members of victims of the Oklahoma City bomb
ing called for the Government to “ ‘put [Timothy McVeigh] inside a bomb
and blow it up.’ ” Walsh, One Arraigned, Two Undergo Questioning,
Washington Post, Apr. 22, 1995, pp. A1, A13. Commentators at the time
noted that an overwhelming percentage of Americans felt that executing
McVeigh was not enough. Lindner, A Political Verdict: McVeigh: When
Death Is Not Enough, L. A. Times, June 8, 1997, p. M1.

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comparable to the suffering inflicted on his victim.16 This
trend, while appropriate and required by the Eighth Amend
ment’s prohibition on cruel and unusual punishment, actually
undermines the very premise on which public approval of the
retribution rationale is based. See, e. g., Kaufman-Osborn,
Regulating Death: Capital Punishment and the Late Liberal
State, 111 Yale L. J. 681, 704 (2001) (explaining that there is
“a tension between our desire to realize the claims of retribu
tion by killing those who kill, and . . . a method [of execution]
that, because it seems to do no harm other than killing, can
not satisfy the intuitive sense of equivalence that informs
this conception of justice”); A. Sarat, When the State Kills:
Capital Punishment and the American Condition 60–84
(2001).
Full recognition of the diminishing force of the principal
rationales for retaining the death penalty should lead this
Court and legislatures to reexamine the question recently
posed by Professor Salinas, a former Texas prosecutor and
judge: “Is it time to Kill the Death Penalty?” See Salinas,
34 Am. J. Crim. L. 39 (2006). The time for a dispassionate,
impartial comparison of the enormous costs that death pen
alty litigation imposes on society with the benefits that it
produces has surely arrived.17
16 For example, one survivor of the Oklahoma City bombing expressed a
belief that “ ‘death by [lethal] injection [was] “too good” for McVeigh.’ ”
A. Sarat, When the State Kills: Capital Punishment and the American
Condition 64 (2001). Similarly, one mother, when told that her child’s
killer would die by lethal injection, asked: “Do they feel anything? Do
they hurt? Is there any pain? Very humane compared to what they’ve
done to our children. The torture they’ve put our kids through. I think
sometimes it’s too easy. They ought to feel something. If it’s fire burn
ing all the way through their body or whatever. There ought to be some
little sense of pain to it.” Id., at 60 (emphasis deleted).
17 For a discussion of the financial costs as well as some of the less tangi
ble costs of the death penalty, see Kozinski & Gallagher, Death: The Ulti
mate Run-On Sentence, 46 Case W. Res. L. Rev. 1 (1995) (discussing, inter
alia, the burden on the courts and the lack of finality for victim’s families).
Although a lack of finality in death cases may seem counterintuitive, Ko
zinski and Gallagher explain:

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III
“[A] penalty may be cruel and unusual because it is exces
sive and serves no valid legislative purpose.” Furman v.
Georgia, 408 U. S. 238, 331 (1972) (Marshall, J., concurring);
see also id., at 332 (“The entire thrust of the Eighth Amend
ment is, in short, against ‘that which is excessive’ ”). Our
cases holding that certain sanctions are “excessive,” and
therefore prohibited by the Eighth Amendment, have relied
“Death cases raise many more issues, and more complex issues, than other
criminal cases, and they are attacked with more gusto and reviewed with
more vigor in the courts. This means there is a strong possibility that
the conviction or sentence will be reconsidered—seriously reconsidered—
five, ten, twenty years after the trial. . . . One has to wonder and worry
about the effect this has on the families of the victims, who have to live
with the possibility—and often the reality—of retrials, evidentiary hear
ings, and last-minute stays of execution for decades after the crime.” Id.,
at 17–18 (footnotes omitted).
Thus, they conclude that “we are left in limbo, with machinery that is
immensely expensive, that chokes our legal institutions so they are im
peded from doing all the other things a society expects from its courts,
[and] that visits repeated trauma on victims’ families . . . .” Id., at 27–28;
see also Block, A Slow Death, N. Y. Times, Mar. 15, 2007, p. A27 (discussing
the “enormous costs and burdens to the judicial system” resulting from
the death penalty).
Some argue that these costs are the consequence of judicial insistence
on unnecessarily elaborate and lengthy appellate procedures. To the con
trary, they result “in large part from the States’ failure to apply constitu
tionally sufficient procedures at the time of initial [conviction or] sentenc
ing.” Knight v. Florida, 528 U. S. 990, 998 (1999) (Breyer, J., dissenting
from denial of certiorari). They may also result from a general reluctance
by States to put large numbers of defendants to death, even after a sen
tence of death is imposed. Cf. Tempest, Death Row Often Means a Long
Life; California Condemns Many Murderers, but Few Are Ever Executed,
L. A. Times, Mar. 6, 2005, p. B1 (noting that California death row inmates
account for about 20% of the Nation’s total death row population, but that
the State accounts for only 1% of the Nation’s executions). In any event,
they are most certainly not the fault of judges who do nothing more than
ensure compliance with constitutional guarantees prior to imposing the
irrevocable punishment of death.

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heavily on “objective criteria,” such as legislative enact
ments. See, e. g., Solem v. Helm, 463 U. S. 277, 292 (1983);
Harmelin v. Michigan, 501 U. S. 957 (1991); United States v.
Bajakajian, 524 U. S. 321 (1998). In our recent decision in
Atkins v. Virginia, 536 U. S. 304 (2002), holding that death
is an excessive sanction for a mentally retarded defendant,
we also relied heavily on opinions written by Justice White
holding that the death penalty is an excessive punishment
for the crime of raping a 16-year-old woman, Coker v. Geor
gia, 433 U. S. 584 (1977), and for a murderer who did not
intend to kill, Enmund v. Florida, 458 U. S. 782 (1982). In
those opinions we acknowledged that “objective evidence,
though of great importance, did not ‘wholly determine’ the
controversy, ‘for the Constitution contemplates that in the
end our own judgment will be brought to bear on the ques
tion of the acceptability of the death penalty under the
Eighth Amendment.’ ” Atkins, 536 U. S., at 312 (quoting
Coker, 433 U. S., at 597 (plurality opinion)).
Justice White was exercising his own judgment in 1972
when he provided the decisive vote in Furman, the case that
led to a nationwide reexamination of the death penalty. His
conclusion that death amounted to “cruel and unusual pun
ishment in the constitutional sense” as well as the “diction
ary sense,” rested on both an uncontroversial legal premise
and on a factual premise that he admittedly could not
“prove” on the basis of objective criteria. 408 U. S., at 312,
313 (concurring opinion). As a matter of law, he correctly
stated that the “needless extinction of life with only mar
ginal contributions to any discernible social or public
purposes . . . would be patently excessive” and violative of
the Eighth Amendment. Id., at 312. As a matter of fact,
he stated, “like my Brethren, I must arrive at judgment; and
I can do no more than state a conclusion based on 10 years
of almost daily exposure to the facts and circumstances of
hundreds and hundreds of federal and state criminal cases
involving crimes for which death is the authorized penalty.”

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Id., at 313. I agree with Justice White that there are occa
sions when a Member of this Court has a duty to make judg
ments on the basis of data that falls short of absolute proof.
Our decisions in 1976 upholding the constitutionality of the
death penalty relied heavily on our belief that adequate pro
cedures were in place that would avoid the danger of dis
criminatory application identified by Justice Douglas’ opinion
in Furman, id., at 240–257 (concurring opinion), of arbitrary
application identified by Justice Stewart, id., at 306 (same),
and of excessiveness identified by Justices Brennan and Mar
shall. In subsequent years a number of our decisions relied
on the premise that “death is different” from every other
form of punishment to justify rules minimizing the risk of
error in capital cases. See, e. g., Gardner v. Florida, 430
U. S. 349, 357–358 (1977) (plurality opinion). Ironically, how
ever, more recent cases have endorsed procedures that pro
vide less protections to capital defendants than to ordinary
offenders.
Of special concern to me are rules that deprive the defend
ant of a trial by jurors representing a fair cross section of
the community. Litigation involving both challenges for
cause and peremptory challenges has persuaded me that the
process of obtaining a “death qualified jury” is really a proce
dure that has the purpose and effect of obtaining a jury that
is biased in favor of conviction. The prosecutorial concern
that death verdicts would rarely be returned by 12 randomly
selected jurors should be viewed as objective evidence sup
porting the conclusion that the penalty is excessive.18
Another serious concern is that the risk of error in capital
cases may be greater than in other cases because the facts
are often so disturbing that the interest in making sure the
18 See Uttecht v. Brown, 551 U. S. 1, 35 (2007) (Stevens, J., dissenting)
(explaining that “[m]illions of Americans oppose the death penalty,” and
that “[a] cross section of virtually every community in the country includes
citizens who firmly believe the death penalty is unjust but who neverthe
less are qualified to serve as jurors in capital cases”).

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crime does not go unpunished may overcome residual doubt
concerning the identity of the offender. Our former empha
sis on the importance of ensuring that decisions in death
cases be adequately supported by reason rather than emo
tion, Gardner, 430 U. S. 349, has been undercut by more re
cent decisions placing a thumb on the prosecutor’s side of the
scales. Thus, in Kansas v. Marsh, 548 U. S. 163 (2006), the
Court upheld a state statute that requires imposition of the
death penalty when the jury finds that the aggravating and
mitigating factors are in equipoise. And in Payne v. Tennes
see, 501 U. S. 808 (1991), the Court overruled earlier cases
and held that “victim impact” evidence relating to the per
sonal characteristics of the victim and the emotional impact
of the crime on the victim’s family is admissible despite the
fact that it sheds no light on the question of guilt or inno
cence or on the moral culpability of the defendant, and thus
serves no purpose other than to encourage jurors to make
life or death decisions on the basis of emotion rather than
reason.
A third significant concern is the risk of discriminatory
application of the death penalty. While that risk has been
dramatically reduced, the Court has allowed it to continue to
play an unacceptable role in capital cases. Thus, in Mc-
Cleskey v. Kemp, 481 U. S. 279 (1987), the Court upheld a
death sentence despite the “strong probability that [the de
fendant’s] sentencing jury . . . was influenced by the fact that
[he was] black and his victim was white.” Id., at 366 (Ste
vens, J., dissenting); see also Evans v. State, 396 Md. 256,
323, 914 A. 2d 25, 64 (2006), cert. denied, 552 U. S. 835 (2007)
(affirming a death sentence despite the existence of a
study showing that “the death penalty is statistically more
likely to be pursued against a black person who murders a
white victim than against a defendant in any other racial
combination”).
Finally, given the real risk of error in this class of cases,
the irrevocable nature of the consequences is of decisive im

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portance to me. Whether or not any innocent defendants
have actually been executed, abundant evidence accumulated
in recent years has resulted in the exoneration of an unac
ceptable number of defendants found guilty of capital of
fenses. See Garrett, Judging Innocence, 108 Colum. L. Rev.
55 (2008); Risinger, Innocents Convicted: An Empirically
Justified Factual Wrongful Conviction Rate, 97 J. Crim.
L. & C. 761 (2007). The risk of executing innocent defend
ants can be entirely eliminated by treating any penalty more
severe than life imprisonment without the possibility of pa
role as constitutionally excessive.
In sum, just as Justice White ultimately based his conclu
sion in Furman on his extensive exposure to countless cases
for which death is the authorized penalty, I have relied on
my own experience in reaching the conclusion that the impo
sition of the death penalty represents “the pointless and
needless extinction of life with only marginal contributions
to any discernible social or public purposes. A penalty with
such negligible returns to the State [is] patently excessive
and cruel and unusual punishment violative of the Eighth
Amendment. ” Furman, 408 U. S., at 312 (White, J.,
concurring).19
19 Not a single Justice in Furman concluded that the mention of depriva
tion of “life” in the Fifth and Fourteenth Amendments insulated the death
penalty from constitutional challenge. The five Justices who concurred
in the judgment necessarily rejected this argument, and even the four
dissenters, who explicitly acknowledged that the death penalty was not
considered impermissibly cruel at the time of the framing, proceeded to
evaluate whether anything had changed in the intervening 181 years that
nevertheless rendered capital punishment unconstitutional. Furman, 408
U. S., at 380–384 (Burger, C. J., joined by Blackmun, Powell, and Rehn
quist, JJ., dissenting); see also id., at 420 (Powell, J., joined by Burger,
C. J., and Blackmun and Rehnquist, JJ., dissenting) (“Nor are ‘cruel and
unusual punishments’ and ‘due process of law’ static concepts whose mean
ing and scope were sealed at the time of their writing”). And indeed, the
guarantees of procedural fairness contained in the Fifth and Fourteenth
Amendments do not resolve the substantive questions relating to the sepa
rate limitations imposed by the Eighth Amendment.

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IV
The conclusion that I have reached with regard to the con
stitutionality of the death penalty itself makes my decision
in this case particularly difficult. It does not, however, jus
tify a refusal to respect precedents that remain a part of our
law. This Court has held that the death penalty is constitu
tional, and has established a framework for evaluating the
constitutionality of particular methods of execution. Under
those precedents, whether as interpreted by The Chief
Justice or Justice Ginsburg, I am persuaded that the evi
dence adduced by petitioners fails to prove that Kentucky’s
lethal injection protocol violates the Eighth Amendment.
Accordingly, I join the Court’s judgment.
Justice Scalia, with whom Justice Thomas joins, con
curring in the judgment.
I join the opinion of Justice Thomas concurring in the
judgment. I write separately to provide what I think is
needed response to Justice Stevens’ separate opinion.
I
Justice Stevens concludes as follows: “[T]he imposition
of the death penalty represents the pointless and needless
extinction of life with only marginal contributions to any dis
cernible social or public purposes. A penalty with such neg
ligible returns to the State [is] patently excessive and cruel
and unusual punishment violative of the Eighth Amend
ment.” Ante, at 86 (opinion concurring in judgment) (inter
nal quotation marks omitted; second bracket in original).
This conclusion is insupportable as an interpretation of the
Constitution, which generally leaves it to democratically
elected legislatures rather than courts to decide what makes
significant contribution to social or public purposes. Be
sides that more general proposition, the very text of the doc
ument recognizes that the death penalty is a permissible leg
islative choice. The Fifth Amendment expressly requires a

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presentment or indictment of a grand jury to hold a person
to answer for “a capital, or otherwise infamous crime,” and
prohibits deprivation of “life” without due process of law.
U. S. Const., Amdt. 5. The same Congress that proposed
the Eighth Amendment also enacted the Act of April 30,
1790, which made several offenses punishable by death. 1
Stat. 112; see also Gregg v. Georgia, 428 U. S. 153, 176–178
(1976) ( joint opinion of Stewart, Powell, and Stevens, JJ.).
Writing in 1977, Professor Hugo Bedau—no friend of the
death penalty himself—observed that “[u]ntil fifteen years
ago, save for a few mavericks, no one gave any credence to
the possibility of ending the death penalty by judicial inter
pretation of constitutional law.” The Courts, the Constitu
tion, and Capital Punishment 118 (1977). There is simply no
legal authority for the proposition that the imposition of
death as a criminal penalty is unconstitutional other than
the opinions in Furman v. Georgia, 408 U. S. 238 (1972) (per
curiam), which established a nationwide moratorium on cap
ital punishment that Justice Stevens had a hand in ending
four years later in Gregg.
II
What prompts Justice Stevens to repudiate his prior
view and to adopt the astounding position that a criminal
sanction expressly mentioned in the Constitution violates
the Constitution? His analysis begins with what he believes
to be the “uncontroversial legal premise” that the “ ‘extinc
tion of life with only marginal contributions to any discern
ible social or public purposes . . . would be patently excessive’
and violative of the Eighth Amendment.” Ante, at 83 (quot
ing in part Furman, supra, at 312 (White, J., concurring));
see also ante, at 78 (citing Gregg, supra, at 183, and n. 28).
Even if that were uncontroversial in the abstract (and it is
certainly not what occurs to me as the meaning of “cruel and
unusual punishments”), it is assuredly controversial (indeed,
flatout wrong) as applied to a mode of punishment that is
explicitly sanctioned by the Constitution. As to that, the

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people have determined whether there is adequate contribu
tion to social or public purposes, and it is no business of un
elected judges to set that judgment aside. But even if we
grant Justice Stevens his “uncontroversial premise,” his
application of that premise to the current practice of capital
punishment does not meet the “heavy burden [that] rests on
those who would attack the judgment of the representatives
of the people.” Gregg, supra, at 175 ( joint opinion of
Stewart, Powell, and Stevens, JJ.). That is to say, Justice
Stevens’ policy analysis of the constitutionality of capital
punishment fails on its own terms.
According to Justice Stevens, the death penalty pro
motes none of the purposes of criminal punishment because
it neither prevents more crimes than alternative measures
nor serves a retributive purpose. Ante, at 78. He argues
that “the recent rise in statutes providing for life imprison
ment without the possibility of parole” means that States
have a ready alternative to the death penalty. Ibid. More
over, “[d]espite 30 years of empirical research in the area,
there remains no reliable statistical evidence that capital
punishment in fact deters potential offenders.” Ante, at 79.
Taking the points together, Justice Stevens concludes that
the availability of alternatives, and what he describes as
the unavailability of “reliable statistical evidence,” renders
capital punishment unconstitutional. In his view, the bene
fits of capital punishment—as compared to other forms of
punishment such as life imprisonment—are outweighed by
the costs.
These conclusions are not supported by the available data.
Justice Stevens’ analysis barely acknowledges the “sig
nificant body of recent evidence that capital punishment may
well have a deterrent effect, possibly a quite powerful one.”
Sunstein & Vermeule, Is Capital Punishment Morally Re
quired? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan.
L. Rev. 703, 706 (2005); see also id., at 706, n. 9 (listing the
approximately half a dozen studies supporting this conclu

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sion). According to a “leading national study,” “each execu
tion prevents some eighteen murders, on average.” Id., at
706. “If the current evidence is even roughly correct . . .
then a refusal to impose capital punishment will effectively
condemn numerous innocent people to death.” Ibid.
Of course, it may well be that the empirical studies estab
lishing that the death penalty has a powerful deterrent effect
are incorrect, and some scholars have disputed its deterrent
value. See ante, at 79, n. 13. But that is not the point. It
is simply not our place to choose one set of responsible empir
ical studies over another in interpreting the Constitution.
Nor is it our place to demand that state legislatures support
their criminal sanctions with foolproof empirical studies,
rather than commonsense predictions about human behavior.
“The value of capital punishment as a deterrent of crime is
a complex factual issue the resolution of which properly rests
with the legislatures, which can evaluate the results of sta
tistical studies in terms of their own local conditions and with
a flexibility of approach that is not available to the courts.”
Gregg, supra, at 186 ( joint opinion of Stewart, Powell, and
Stevens, JJ.). Were Justice Stevens’ current view the
constitutional test, even his own preferred criminal sanc
tion—life imprisonment without the possibility of parole—
may fail constitutional scrutiny, because it is entirely unclear
that enough empirical evidence supports that sanction as
compared to alternatives such as life with the possibility of
parole.
But even if Justice Stevens’ assertion about the deter
rent value of the death penalty were correct, the death pen
alty would yet be constitutional (as he concedes) if it served
the appropriate purpose of retribution. I would think it dif
ficult indeed to prove that a criminal sanction fails to serve
a retributive purpose—a judgment that strikes me as inher
ently subjective and insusceptible of judicial review. Jus
tice Stevens, however, concludes that, because the Eighth
Amendment “protect[s] the inmate from enduring any pun

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ishment that is comparable to the suffering inflicted on his
victim,” capital punishment serves no retributive purpose at
all. Ante, at 80–81. The infliction of any pain, according to
Justice Stevens, violates the Eighth Amendment’s prohi
bition against cruel and unusual punishments, but so too does
the imposition of capital punishment without pain because a
criminal penalty lacks a retributive purpose unless it inflicts
pain commensurate with the pain that the criminal has
caused. In other words, if a punishment is not retributive
enough, it is not retributive at all. To state this proposition
is to refute it, as Justice Stevens once understood. “[T]he
decision that capital punishment may be the appropriate
sanction in extreme cases is an expression of the communi
ty’s belief that certain crimes are themselves so grievous an
affront to humanity that the only adequate response may be
the penalty of death.” Gregg, 428 U. S., at 184 ( joint opinion
of Stewart, Powell, and Stevens, JJ.).
Justice Stevens’ final refuge in his cost-benefit analysis
is a familiar one: There is a risk that an innocent person
might be convicted and sentenced to death—though not a
risk that Justice Stevens can quantify, because he lacks a
single example of a person executed for a crime he did not
commit in the current American system. See ante, at 84–86.
His analysis of this risk is thus a series of sweeping condem
nations that, if taken seriously, would prevent any punish
ment under any criminal justice system. According to him,
“[t]he prosecutorial concern that death verdicts would rarely
be returned by 12 randomly selected jurors should be viewed
as objective evidence supporting the conclusion that the pen
alty is excessive.” Ante, at 84. But prosecutors undoubt
edly have a similar concern that any unanimous conviction
would rarely be returned by 12 randomly selected jurors.
That is why they, like defense counsel, are permitted to use
the challenges for cause and peremptory challenges that Jus
tice Stevens finds so troubling, in order to arrive at a jury
that both sides believe will be more likely to do justice in a

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particular case. Justice Stevens’ concern that prosecu
tors will be inclined to challenge jurors who will not find a
person guilty supports not his conclusion, but the separate
(and equally erroneous) conclusion that peremptory chal
lenges and challenges for cause are unconstitutional. Ac
cording to Justice Stevens, “the risk of error in capital
cases may be greater than in other cases because the facts
are often so disturbing that the interest in making sure the
crime does not go unpunished may overcome residual doubt
concerning the identity of the offender.” Ante, at 84–85.
That rationale, however, supports not Justice Stevens’
conclusion that the death penalty is unconstitutional, but the
more sweeping proposition that any conviction in a case in
which facts are disturbing is suspect—including, of course,
convictions resulting in life without parole in those States
that do not have capital punishment. The same is true of
Justice Stevens’ claim that there is a risk of “discrimina
tory application of the death penalty.” Ante, at 85. The
same could be said of any criminal penalty, including life
without parole; there is no proof that in this regard the death
penalty is distinctive.
But of all Justice Stevens’ criticisms of the death pen
alty, the hardest to take is his bemoaning of “the enormous
costs that death penalty litigation imposes on society,” in
cluding the “burden on the courts and the lack of finality for
victim’s families.” Ante, at 81, and n. 17. Those costs,
those burdens, and that lack of finality are in large measure
the creation of Justice Stevens and other Justices opposed
to the death penalty, who have “encumber[ed] [it] . . . with
unwarranted restrictions neither contained in the text of the
Constitution nor reflected in two centuries of practice under
it”—the product of their policy views “not shared by the vast
majority of the American people.” Kansas v. Marsh, 548
U. S. 163, 186 (2006) (Scalia, J., concurring).

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III
But actually none of this really matters. As Justice
Stevens explains, “ ‘objective evidence, though of great im
portance, [does] not wholly determine the controversy, for
the Constitution contemplates that in the end our own judg
ment will be brought to bear on the question of the accept
ability of the death penalty under the Eighth Amendment.’ ”
Ante, at 83 (quoting Atkins v. Virginia, 536 U. S. 304, 312
(2002); emphasis added; some internal quotation marks omit
ted). “I have relied on my own experience in reaching the
conclusion that the imposition of the death penalty” is uncon
stitutional. Ante, at 86 (emphasis added).
Purer expression cannot be found of the principle of rule
by judicial fiat. In the face of Justice Stevens’ experi
ence, the experience of all others is, it appears, of little conse
quence. The experience of the state legislatures and the
Congress—who retain the death penalty as a form of punish
ment—is dismissed as “the product of habit and inattention
rather than an acceptable deliberative process.” Ante,
at 78. The experience of social scientists whose studies indi
cate that the death penalty deters crime is relegated to a
footnote. Ante, at 79, n. 13. The experience of fellow citi
zens who support the death penalty is described, with only
the most thinly veiled condemnation, as stemming from a
“thirst for vengeance.” Ante, at 80. It is Justice Ste
vens’ experience that reigns over all.
* * *
I take no position on the desirability of the death penalty,
except to say that its value is eminently debatable and the
subject of deeply, indeed passionately, held views—which
means, to me, that it is preeminently not a matter to be re
solved here. And especially not when it is explicitly permit
ted by the Constitution.

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Justice Thomas, with whom Justice Scalia joins, con
curring in the judgment.
Although I agree that petitioners have failed to establish
that Kentucky’s lethal injection protocol violates the Eighth
Amendment, I write separately because I cannot subscribe
to the plurality opinion’s formulation of the governing stand
ard. As I understand it, that opinion would hold that a
method of execution violates the Eighth Amendment if it
poses a substantial risk of severe pain that could be signifi
cantly reduced by adopting readily available alternative pro
cedures. Ante, at 52. This standard—along with petition
ers’ proposed “unnecessary risk” standard and the dissent’s
“untoward risk” standard, post, at 114 (opinion of Ginsburg,
J.)—finds no support in the original understanding of the
Cruel and Unusual Punishments Clause or in our previous
method-of-execution cases; casts constitutional doubt on
long-accepted methods of execution; and injects the Court
into matters it has no institutional capacity to resolve. Be
cause, in my view, a method of execution violates the Eighth
Amendment only if it is deliberately designed to inflict pain,
I concur only in the judgment.
I
The Eighth Amendment’s prohibition on the “inflict[ion]”
of “cruel and unusual punishments” must be understood in
light of the historical practices that led the Framers to in
clude it in the Bill of Rights. Justice Stevens’ rumina
tions notwithstanding, see ante, at 78–86 (opinion concurring
in judgment), it is clear that the Eighth Amendment does
not prohibit the death penalty. That is evident both from
the ubiquity of the death penalty in the founding era, see S.
Banner, The Death Penalty: An American History 23 (2002)
(hereinafter Banner) (noting that, in the late 18th century,
the death penalty was “the standard penalty for all serious
crimes”), and from the Constitution’s express provision for
capital punishment, see, e. g., Amdt. 5 (requiring an indict

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ment or presentment of a grand jury to hold a person for
“a capital, or otherwise infamous crime,” and prohibiting
deprivation of “life” without due process of law).
That the Constitution permits capital punishment in prin
ciple does not, of course, mean that all methods of execution
are constitutional. In English and early colonial practice,
the death penalty was not a uniform punishment, but rather
a range of punishments, some of which the Framers likely
regarded as cruel and unusual. Death by hanging was the
most common mode of execution both before and after 1791,
and there is no doubt that it remained a permissible punish
ment after enactment of the Eighth Amendment. “An ordi
nary death by hanging was not, however, the harshest
penalty at the disposal of the seventeenth- and eighteenth
century state.” Banner 70. In addition to hanging, which
was intended to, and often did, result in a quick and painless
death, “[o]fficials also wielded a set of tools capable of inten
sifying a death sentence,” that is, “ways of producing a pun
ishment worse than death.” Id., at 54.
One such “tool” was burning at the stake. Because burn
ing, unlike hanging, was always painful and destroyed the
body, it was considered “a form of super-capital punishment,
worse than death itself.” Id., at 71. Reserved for offenders
whose crimes were thought to pose an especially grave
threat to the social order—such as slaves who killed their
masters and women who killed their husbands—burning a
person alive was so dreadful a punishment that sheriffs
sometimes hanged the offender first “as an act of charity.”
Id., at 72.
Other methods of intensifying a death sentence included
“gibbeting,” or hanging the condemned in an iron cage so
that his body would decompose in public view, see id., at
72–74, and “public dissection,” a punishment Blackstone as
sociated with murder, 4 W. Blackstone, Commentaries 376
(W. Lewis ed. 1897) (hereinafter Blackstone). But none of
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reserved for the most dangerous and reprobate offenders—
traitors. “The punishment of high treason,” Blackstone
wrote, was “very solemn and terrible,” id., at 92, and in
volved “embowelling alive, beheading, and quartering,” id.,
at 376. Thus, the following death sentence could be pro
nounced on seven men convicted of high treason in England:
“ ‘That you and each of you, be taken to the place from
whence you came, and from thence be drawn on a hurdle
to the place of execution, where you shall be hanged by
the necks, not till you are dead; that you be severally
taken down, while yet alive, and your bowels be taken
out and burnt before your faces—that your heads be
then cut off, and your bodies cut in four quarters, to be
at the King’s disposal. And God Almighty have mercy
on your souls.’ ” G. Scott, History of Capital Punish
ment 179 (1950).*
The principal object of these aggravated forms of capital
punishment was to terrorize the criminal, and thereby more
effectively deter the crime. Their defining characteristic
was that they were purposely designed to inflict pain and
suffering beyond that necessary to cause death. As Black
stone put it, “in very atrocious crimes, other circumstances
of terror, pain, or disgrace [were] superadded.” 4 Black
stone 376. These “superadded” circumstances “were care
*As gruesome as these methods of execution were, they were not the
worst punishments the Framers would have been acquainted with. After
surveying the various “superadd[itions]” to the death penalty in English
law, as well as lesser punishments such as “mutilation or dismembering,
by cutting off the hand or ears” and stigmatizing the offender “by slitting
the nostrils, or branding in the hand or cheek,” Blackstone was able to
congratulate his countrymen on their refinement, in contrast to the barba
rism on the Continent: “Disgusting as this catalogue may seem, it will
afford pleasure to an English reader, and do honor to the English law, to
compare it with that shocking apparatus of death and torment to be met
with in the criminal codes of almost every other nation in Europe.”
4 Blackstone 377.

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fully handed out to apply terror where it was thought to be
most needed,” and were designed “to ensure that death
would be slow and painful, and thus all the more frightening
to contemplate.” Banner 70.
Although the Eighth Amendment was not the subject of
extensive discussion during the debates on the Bill of Rights,
there is good reason to believe that the Framers viewed such
enhancements to the death penalty as falling within the pro
hibition of the Cruel and Unusual Punishments Clause. By
the late 18th century, the more violent modes of execution
had “dwindled away,” id., at 76, and would for that reason
have been “unusual” in the sense that they were no longer
“regularly or customarily employed,” Harmelin v. Michigan,
501 U. S. 957, 976 (1991) (opinion of Scalia, J.); see also
Weems v. United States, 217 U. S. 349, 395 (1910) (White, J.,
dissenting) (noting that, “prior to the formation of the Con
stitution, the necessity for the protection afforded by the
cruel and unusual punishment guarantee of the English bill
of rights had ceased to be a matter of concern, because as a
rule the cruel bodily punishments of former times were no
longer imposed”). Embellishments upon the death penalty
designed to inflict pain for pain’s sake also would have fallen
comfortably within the ordinary meaning of the word
“cruel.” See 1 S. Johnson, A Dictionary of the English Lan
guage 459 (1773) (defining “cruel” to mean “[p]leased with
hurting others; inhuman; hard-hearted; void of pity; wanting
compassion; savage; barbarous; unrelenting”); 1 N. Webster,
An American Dictionary of the English Language 52 (1828)
(defining “cruel” as “[d]isposed to give pain to others, in body
or mind; willing or pleased to torment, vex or afflict; inhu
man; destitute of pity, compassion or kindness”).
Moreover, the evidence we do have from the debates on
the Constitution confirms that the Eighth Amendment was
intended to disable Congress from imposing torturous pun
ishments. It was the absence of such a restriction on Con
gress’ power in the Constitution as drafted in Philadelphia

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in 1787 that led one delegate at the Massachusetts ratifying
convention to complain that Congress was “nowhere re
strained from inventing the most cruel and unheard-of pun
ishments, and annexing them to crimes; and there is no con
stitutional check on them, but that racks and gibbets may be
amongst the most mild instruments of their discipline.” 2 J.
Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 111 (2d ed. 1891).
Similarly, during the ratification debate in Virginia, Patrick
Henry objected to the lack of a Bill of Rights, in part because
there was nothing to prevent Congress from inflicting “tor
tures, or cruel and barbarous punishment[s].” 3 id., at
447–448.
Early commentators on the Constitution likewise inter
preted the Cruel and Unusual Punishments Clause as refer
ring to torturous punishments. One commentator viewed
the Eighth Amendment as prohibiting “horrid modes of
torture”:
“The prohibition of cruel and unusual punishments,
marks the improved spirit of the age, which would not
tolerate the use of the rack or the stake, or any of those
horrid modes of torture, devised by human ingenuity for
the gratification of fiendish passion.” J. Bayard, A Brief
Exposition of the Constitution of the United States 154
(2d ed. 1840).
Similarly, another commentator found “sufficient reasons” for
the Eighth Amendment in the “barbarous and cruel punish
ments” inflicted in less enlightened countries:
“Under the [Eighth] amendment the infliction of cruel
and unusual punishments, is also prohibited. The vari
ous barbarous and cruel punishments inflicted under the
laws of some other countries, and which profess not to
be behind the most enlightened nations on earth in civi
lization and refinement, furnish sufficient reasons for
this express prohibition. Breaking on the wheel, flay

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ing alive, rending asunder with horses, various species
of horrible tortures inflicted in the inquisition, maiming,
mutilating and scourging to death, are wholly alien to
the spirit of our humane general constitution.” B.
Oliver, The Rights of An American Citizen 186 (1832)
(reprint 1970).
So barbaric were the punishments prohibited by the Eighth
Amendment that Joseph Story thought the provision “wholly
unnecessary in a free government, since it is scarcely pos
sible, that any department of such a government should
authorize, or justify such atrocious conduct.” 3 J. Story,
Commentaries on the Constitution of the United States 750
(1833).
II
Consistent with the original understanding of the Cruel
and Unusual Punishments Clause, this Court’s cases have
repeatedly taken the view that the Framers intended to
prohibit torturous modes of punishment akin to those that
formed the historical backdrop of the Eighth Amendment.
See, e. g., Estelle v. Gamble, 429 U. S. 97, 102 (1976) (“[T]he
primary concern of the drafters was to proscribe ‘torture[s]’
and other ‘barbar[ous]’ methods of punishment”); Weems,
supra, at 390 (White, J., dissenting) (“[I]t may not be doubted,
and indeed is not questioned by any one, that the cruel pun
ishments against which the bill of rights provided were the
atrocious, sanguinary and inhuman punishments which had
been inflicted in the past upon the persons of criminals”).
That view has permeated our method-of-execution cases.
Thrice the Court has considered a challenge to a modern
method of execution, and thrice it has rejected the challenge,
each time emphasizing that the Eighth Amendment is aimed
at methods of execution purposely designed to inflict pain.
In the first case, Wilkerson v. Utah, 99 U. S. 130 (1879),
the Court rejected the contention that death by firing squad
was cruel and unusual. In so doing, it reviewed the various

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modes of execution catalogued by Blackstone, repeating his
observation that “in very atrocious crimes other circum
stances of terror, pain, or disgrace were sometimes super
added.” Id., at 135. The Court found it “safe to affirm that
punishments of torture, such as those mentioned by [Black
stone], and all others in the same line of unnecessary cruelty,
are forbidden by [the Eighth Amendment].” Id., at 136.
The unanimous Court had no difficulty concluding that death
by firing squad did not “fal[l] within that category.” Ibid.
Similarly, when the Court in In re Kemmler, 136 U. S. 436,
446 (1890), unanimously rejected a challenge to electrocution,
it interpreted the Eighth Amendment to prohibit punish
ments that “were manifestly cruel and unusual, as burning
at the stake, crucifixion, breaking on the wheel, or the like”:
“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 extinguish
ment of life.” Id., at 447.
Finally, in Louisiana ex rel. Francis v. Resweber, 329 U. S.
459 (1947), the Court rejected the petitioner’s contention
that the Eighth Amendment prohibited Louisiana from sub
jecting him to a second attempt at electrocution, the first
attempt having failed when “[t]he executioner threw the
switch but, presumably because of some mechanical diffi
culty, death did not result.” Id., at 460 (plurality opinion).
Characterizing the abortive attempt as “an accident, with no
suggestion of malevolence,” id., at 463, the plurality opinion
concluded that “the fact that petitioner ha[d] already been
subjected to a current of electricity [did] not make his subse
quent execution any more cruel in the constitutional sense
than any other execution”:
“The cruelty against which the Constitution protects a
convicted man is cruelty inherent in the method of pun

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ishment, not the necessary suffering involved in any
method employed to extinguish life humanely. The fact
that an unforeseeable accident prevented the prompt
consummation of the sentence cannot, it seems to us, add
an element of cruelty to a subsequent execution. There
is no purpose to inflict unnecessary pain nor any unnec
essary pain involved in the proposed execution.” Id.,
at 464.
III
In light of this consistent understanding of the Cruel and
Unusual Punishments Clause as forbidding purposely tortur
ous punishments, it is not surprising that even an ardent
abolitionist was constrained to acknowledge in 1977 that
“[a]n unbroken line of interpreters has held that it was the
original understanding and intent of the framers of the
Eighth Amendment . . . to proscribe as ‘cruel and unusual’
only such modes of execution as compound the simple inflic
tion of death with added cruelties or indignities.” H. Bedau,
The Courts, the Constitution, and Capital Punishment 35.
What is surprising is the plurality’s willingness to discard
this unbroken line of authority in favor of a standard that
finds no support in the original understanding of the Eighth
Amendment or in our method-of-execution cases and that,
disclaimers notwithstanding, “ threaten[s] to transform
courts into boards of inquiry charged with determining ‘best
practices’ for executions, with each ruling supplanted by an
other round of litigation touting a new and improved method
ology.” Ante, at 51.
We have never suggested that a method of execution is
“cruel and unusual” within the meaning of the Eighth
Amendment simply because it involves a risk of pain—
whether “substantial,” “unnecessary,” or “untoward”—that
could be reduced by adopting alternative procedures. And
for good reason. It strains credulity to suggest that the de
fining characteristic of burning at the stake, disemboweling,
drawing and quartering, beheading, and the like was that

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they involved risks of pain that could be eliminated by using
alternative methods of execution. Quite plainly, what de
fined these punishments was that they were designed to in
flict torture as a way of enhancing a death sentence; they
were intended to produce a penalty worse than death, to
accomplish something “more than the mere extinguishment
of life.” Kemmler, supra, at 447. The evil the Eighth
Amendment targets is intentional infliction of gratuitous
pain, and that is the standard our method-of-execution cases
have explicitly or implicitly invoked.
Thus, the Court did not find it necessary in Wilkerson to
conduct a comparative analysis of death by firing squad as
opposed to hanging or some other method of execution. Nor
did the Court inquire into the precise procedures used to
execute an individual by firing squad in order to determine
whether they involved risks of pain that could be alleviated
by adopting different procedures. It was enough that death
by firing squad was well established in military practice, 99
U. S., at 134–135, and plainly did not fall within the “same
line of unnecessary cruelty” as the punishments described by
Blackstone, id., at 136.
The same was true in Kemmler. One searches the opin
ion in vain for a comparative analysis of electrocution versus
other methods of execution. The Court observed that the
New York Legislature had adopted electrocution in order to
replace hanging with “ ‘the most humane and practical
method known to modern science of carrying into effect the
sentence of death in capital cases.’ ” 136 U. S., at 444. But
there is no suggestion that the Court thought it necessary to
sift through the “voluminous mass of evidence . . . taken [in
the courts below] as to the effect of electricity as an agent of
death,” id., at 442, in order to confirm that electrocution in
fact involved less substantial risks of pain or lingering death
than hanging. The court below had rejected the challenge
because the “act was passed in the effort to devise a more

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humane method of reaching the result,” and “courts were
bound to presume that the legislature was possessed of the
facts upon which it took action.” Id., at 447. Treating the
lower court’s decision “as involving an adjudication that the
statute was not repugnant to the Federal Constitution,”
ibid., the Court found that conclusion “so plainly right,” ibid.,
that it had “no hesitation” in denying the writ of error, id.,
at 449.
Likewise in Resweber, the Court was confronted in dra
matic fashion with the reality that the electric chair involved
risks of error or malfunction that could result in excruciating
pain. See 329 U. S., at 480, n. 2 (Burton, J., dissenting)
(quoting affidavits from the petitioner’s brief recounting that
during the unsuccessful first attempt at electrocution, the
petitioner’s “ ‘lips puffed out and his body squirmed and
tensed and he jumped so that the chair rocked on the floor’ ”).
But absent “malevolence” or a “purpose to inflict unneces
sary pain,” the Court concluded that the Constitution did not
prohibit Louisiana from subjecting the petitioner to those
very risks a second time in order to carry out his death sen
tence. Id., at 463, 464 (plurality opinion); id., at 471 (Frank
furter, J., concurring); see also Furman v. Georgia, 408 U. S.
238, 326–327 (1972) (Marshall, J., concurring) (describing
Resweber as holding “that the legislature adopted electrocu
tion for a humane purpose, and that its will should not be
thwarted because, in its desire to reduce pain and suffering
in most cases, it may have inadvertently increased suffering
in one particular case”). No one suggested that Louisiana
was required to implement additional safeguards or alter
native procedures in order to reduce the risk of a second
malfunction. And it was the dissenters in Resweber who
insisted that the absence of an intent to inflict pain was
irrelevant. 329 U. S., at 477 (Burton, J., dissenting) (“The
intent of the executioner cannot lessen the torture or excuse
the result”).

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IV
Aside from lacking support in history or precedent, the
various risk-based standards proposed in this case suffer
from other flaws, not the least of which is that they cast
substantial doubt on every method of execution other than
lethal injection. It may well be that other methods of exe
cution such as hanging, the firing squad, electrocution, and
lethal gas involve risks of pain that could be eliminated by
switching to lethal injection. Indeed, they have been at
tacked as unconstitutional for that very reason. See, e. g.,
Gomez v. United States Dist. Court for Northern Dist. of
Cal., 503 U. S. 653, 654, 656–657 (1992) (Stevens, J., dissent
ing) (arguing that lethal gas violates the Eighth Amendment
because of “the availability of more humane and less violent
methods of execution,” namely, lethal injection); Glass v.
Louisiana, 471 U. S. 1080, 1093 (1985) (Brennan, J., dissent
ing from denial of certiorari) (arguing that electrocution vio
lates the Eighth Amendment because it poses risks of pain
that could be alleviated by “other currently available means
of execution,” such as lethal injection); Campbell v. Wood,
18 F. 3d 662, 715 (CA9 1994) (Reinhardt, J., concurring
and dissenting) (arguing that hanging violates the Eighth
Amendment because it involves risks of pain and mutilation
not presented by lethal injection). But the notion that the
Eighth Amendment permits only one mode of execution, or
that it requires an anesthetized death, cannot be squared
with the history of the Constitution.
It is not a little ironic—and telling—that lethal injection,
hailed just a few years ago as the humane alternative in light
of which every other method of execution was deemed an
unconstitutional relic of the past, is the subject of today’s
challenge. It appears the Constitution is “evolving” even
faster than I suspected. And it is obvious that, for some
who oppose capital punishment on policy grounds, the only
acceptable end point of the evolution is for this Court, in an
exercise of raw judicial power unsupported by the text or

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history of the Constitution, or even by a contemporary moral
consensus, to strike down the death penalty as cruel and un
usual in all circumstances. In the meantime, though, the
next best option for those seeking to abolish the death pen
alty is to embroil the States in never-ending litigation con
cerning the adequacy of their execution procedures. But far
from putting an end to abusive litigation in this area, and
thereby vindicating in some small measure the States’ “sig
nificant interest in meting out a sentence of death in a timely
fashion,” Nelson v. Campbell, 541 U. S. 637, 644 (2004), to
day’s decision is sure to engender more litigation. At what
point does a risk become “substantial”? Which alternative
procedures are “feasible” and “readily implemented”?
When is a reduction in risk “significant”? What penological
justifications are “legitimate”? Such are the questions the
lower courts will have to grapple with in the wake of today’s
decision. Needless to say, we have left the States with
nothing resembling a bright-line rule.
W h ich br i ngs me to yet a fur ther problem w ith
comparative-risk standards: They require courts to resolve
medical and scientific controversies that are largely beyond
judicial ken. Little need be said here, other than to refer to
the various opinions filed by my colleagues today. Under
the competing risk standards advanced by the plurality opin
ion and the dissent, for example, the difference between a
lethal injection procedure that satisfies the Eighth Amend
ment and one that does not may well come down to one’s
judgment with respect to something as hairsplitting as
whether an eyelash stroke is necessary to ensure that the
inmate is unconscious, or whether instead other measures
have already provided sufficient assurance of unconscious
ness. Compare post, at 118 (Ginsburg, J., dissenting) (criti
cizing Kentucky’s protocol because “[n]o one calls the in
mate’s name, shakes him, brushes his eyelashes to test for a
reflex, or applies a noxious stimulus to gauge his response”),
with ante, at 60–61 (rejecting the dissent’s criticisms because

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“an inmate cannot succeed on an Eighth Amendment claim
simply by showing one more step the State could take as a
failsafe for other, independently adequate measures”). We
have neither the authority nor the expertise to micromanage
the States’ administration of the death penalty in this man
ner. There is simply no reason to believe that “unelected”
judges without scientific, medical, or penological training are
any better suited to resolve the delicate issues surrounding
the administration of the death penalty than are state ad
ministrative personnel specifically charged with the task.
Cf. ante, at 74–75 (Stevens, J., concurring in judgment)
(criticizing the States’ use of the three-drug protocol because
“[i]n the majority of States that use the three-drug protocol,
the drugs were selected by unelected department of correc
tion officials with no specialized medical knowledge and with
out the benefit of expert assistance or guidance”).
In short, I reject as both unprecedented and unworkable
any standard that would require the courts to weigh the rela
tive advantages and disadvantages of different methods of
execution or of different procedures for implementing a
given method of execution. To the extent that there is any
comparative element to the inquiry, it should be limited to
whether the challenged method inherently inflicts signifi
cantly more pain than traditional modes of execution such as
hanging and the firing squad. See, e. g., Gray v. Lucas, 463
U. S. 1237, 1239–1240 (1983) (Burger, C. J., concurring in de
nial of certiorari) (rejecting an Eighth Amendment challenge
to lethal gas because the petitioner had not shown that “ ‘the
pain and terror resulting from death by cyanide gas is so
different in degree or nature from that resulting from other
traditional modes of execution as to implicate the eighth
amendment right’ ” (quoting Gray v. Lucas, 710 F. 2d 1048,
1061 (CA5 1983))); Hernandez v. State, 43 Ariz. 424, 441, 32
P. 2d 18, 25 (1934) (“The fact that [lethal gas] is less painful
and more humane than hanging is all that is required to re
fute completely the charge that it constitutes cruel and un

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usual punishment within the meaning of this expression as
used in [the Eighth Amendment]”).
V
Judged under the proper standard, this is an easy case.
It is undisputed that Kentucky adopted its lethal injection
protocol in an effort to make capital punishment more hu
mane, not to add elements of terror, pain, or disgrace to the
death penalty. And it is undisputed that, if administered
properly, Kentucky’s lethal injection protocol will result in a
swift and painless death. As the Sixth Circuit observed in
rejecting a similar challenge to Tennessee’s lethal injection
protocol, we “do not have a situation where the State has any
intent (or anything approaching intent) to inflict unnecessary
pain; the complaint is that the State’s pain-avoidance proce
dure may fail because the executioners may make a mistake
in implementing it.” Workman v. Bredesen, 486 F. 3d 896,
907 (2007). But “[t]he risk of negligence in implementing a
death-penalty procedure . . . does not establish a cognizable
Eighth Amendment claim.” Id., at 907–908. Because Ken
tucky’s lethal injection protocol is designed to eliminate pain
rather than to inflict it, petitioners’ challenge must fail.
I accordingly concur in the Court’s judgment affirming the
decision below.
Justice Breyer, concurring in the judgment.
Assuming the lawfulness of the death penalty itself, peti
tioners argue that Kentucky’s method of execution, lethal in
jection, nonetheless constitutes a constitutionally forbidden,
“cruel and unusual punishmen[t].” U. S. Const., Amdt. 8.
In respect to how a court should review such a claim, I agree
with Justice Ginsburg. She highlights the relevant ques
tion, whether the method creates an untoward, readily avoid
able risk of inflicting severe and unnecessary suffering.
Post, at 123 (dissenting opinion). I agree that the relevant
factors—the “degree of risk,” the “magnitude of pain,” and

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the “availability of alternatives”—are interrelated and each
must be considered. Post, at 116. At the same time,
I believe that the legal merits of the kind of claim presented
must inevitably turn not so much upon the wording of an
intermediate standard of review as upon facts and evidence.
And I cannot find, either in the record in this case or in the
literature on the subject, sufficient evidence that Kentucky’s
execution method poses the “significant and unnecessary risk
of inflicting severe pain” that petitioners assert. Brief for
Petitioners 28.
In respect to the literature, I have examined the periodical
article that seems first to have brought widespread legal at
tention to the claim that lethal injection might bring about
unnecessary suffering. See ante, at 51–52, n. 2 (plurality
opinion); Denno, The Lethal Injection Quandary: How Medi
cine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49,
105, n. 366 (2007) (collecting cases in which condemned in
mates cited the Lancet study). The article, by Dr. Leonidas
G. Koniaris, Teresa A. Zimmers (of the University of Miami
School of Medicine), and others, appeared in the April 16,
2005, issue of the Lancet, an eminent, peer-reviewed medical
journal. See Koniaris, Zimmers, Lubarsky, & Sheldon, In
adequate Anaesthesia in Lethal Injection for Execution, 365
Lancet 1412 (hereinafter Lancet Study). The authors exam
ined “autopsy toxicology results from 49 executions in Ari
zona, Georgia, North Carolina, and South Carolina.” Id., at
1412–1413. The study noted that lethal injection usually
consists of sequential administration of a barbiturate (sodium
thiopental), followed by injection of a paralyzing agent
(pancuronium bromide) and a heart-attack-inducing drug
(potassium chloride). The study focused on the effective
ness of the first drug in anesthetizing the inmate. See id.,
at 1412. It noted that the four States used 2 grams of thio
pental. Id., at 1413. (Kentucky follows a similar system
but currently uses 3 grams of sodium thiopental. See ante,
at 44–46 (plurality opinion).) Although the sodium thiopen

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tal dose (of, say, 2 grams) was several times the dose used in
ordinary surgical operations, the authors found that the level
of barbiturate present in the bloodstream several hours (or
more) after death was lower than the level one might ex
pect to find during an operation. Lancet Study 1413–1414.
With certain qualifications, they state that “21 (43%)” of the
examined instances “had [thiopental] concentrations consist
ent with consciousness,” id., at 1413—a fact that should cre
ate considerable concern given the related likelihood of unex
pressed suffering. The authors suggest that, among other
things, inadequate training may help explain the results.
Id., at 1414.
The Lancet Study, however, may be seriously flawed. In
its September 24, 2005, issue, the Lancet published three re
sponses. The first, by one of the initial referees, Jonathan
I. Groner of Children’s Hospital, Columbus, Ohio, claimed
that a low level of thiopental in the bloodstream does not
necessarily mean that an inadequate dose was given, for,
under circumstances likely common to lethal injections, thio
pental can simply diffuse from the bloodstream into sur
rounding tissues. See Inadequate Anaesthesia in Lethal In
jection for Execution, 366 Lancet 1073. And a long pause
between death and measurement means that this kind of dif
fusion likely occurred. See ibid. For this reason and oth
ers, Groner, who said he had initially “expressed strong sup
port for the article,” had become “concerned” that its key
finding “may be erroneous because of a lack of equipoise in
the study.” Ibid.
The second correspondents, Mark J. S. Heath (petitioners’
expert in their trial below), Donald R. Stanski, and Derrick J.
Pounder, respectively of the Department of Anesthesiology,
Columbia University, of Stanford University School of Medi
cine, and the University of Dundee, United Kingdom, con
cluded that “Koniaris and colleagues do not present scien
tifically convincing data to justify their conclusion that so
large a proportion of inmates have experienced awareness

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during lethal injection.” Ibid. These researchers noted
that because the blood samples were taken “several hours to
days after” the inmates’ deaths, the postmortem concentra
tions of thiopental—a lipophilic drug that diffuses from blood
into tissue—could not be relied on as accurate indicators for
concentrations in the bloodstream during life. Ibid. See
also ante, at 51–52, n. 2 (plurality opinion).
The third correspondents, Robyn S. Weisman, Jeffrey N.
Bernstein, and Richard S. Weisman, of the University of
Miami, School of Medicine, and Florida Poison Information
Center, said that “[p]ost-mortem drug concentrations are ex
tremely difficult to interpret and there is substantial vari
ability in results depending on timing, anatomical origin of
the specimen, and physical and chemical properties of the
drug.” 366 Lancet, at 1074. They believed that the origi
nal finding “requires further assessment.” Ibid.
The authors of the original study replied, defending the
accuracy of their findings. See id., at 1074–1076. Yet, nei
ther the petition for certiorari nor any of the briefs filed in
this Court (including seven amici curiae briefs supporting
petitioners) make any mention of the Lancet Study, which
was published during petitioners’ trial. In light of that fact,
and the responses to the original study, a judge, nonexpert
in these matters, cannot give the Lancet Study significant
weight.
The literature also contains a detailed article on the sub
ject, which appeared in 2002 in the Ohio State Law Journal.
The author, Professor Deborah W. Denno, examined execu
tions by lethal injection in the 36 States where thiopental
is used. See When Legislatures Delegate Death: The
Troubling Paradox Behind State Uses of Electrocution and
Lethal Injection and What It Says About Us, 63 Ohio
St. L. J. 63. In Table 9, the author lists 31 “Botched Lethal
Injection Executions” in the time from our decision in Gregg
v. Georgia, 429 U. S. 1301 (1976), through 2001. See Denno,
63 Ohio St. L. J., at 139–141. Of these, 19 involved a prob

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lem of locating a suitable vein to administer the chemicals.
Ibid. Eleven of the remaining twelve apparently involved
strong, readily apparent physical reactions. Ibid. One,
taking place in Illinois in 1990, is described as involving
“some indication that, while appearing calm on the outside
due to the paralyzing drugs, [the inmate] suffered excruciat
ing pain.” Id., at 139. The author adds that “[t]here were
reports of faulty equipment and inexperienced personnel.”
Ibid. This article, about which Professor Denno testified at
petitioners’ trial and on which petitioners rely in this Court,
may well provide cause for concern about the administration
of the lethal injection. But it cannot materially aid petition
ers here. That is because, as far as the record here reveals,
and as the Kentucky courts found, Kentucky’s use of trained
phlebotomists and the presence of observers should prevent
the kind of “botched” executions that Denno’s Table 9
documents.
The literature also casts a shadow of uncertainty upon the
ready availability of some of the alternatives to lethal ex
ecution methods. Petitioners argued to the trial court, for
example, that Kentucky should eliminate the use of a para
lytic agent, such as pancuronium bromide, which could, by
preventing any outcry, mask suffering an inmate might be
experiencing because of inadequate administration of the
anesthetic. See Brief for Petitioners 51–57; Reply Brief
for Petitioners 18, and n. 6. And they point out that use
of pancuronium bromide to euthanize animals is contrary
to veterinary standards. See id., at 20 (citing Brief for
Dr. Kevin Concannon et al. as Amici Curiae 17–18). See
also id., at 4, 18, n. 5 (noting that Kentucky, like 22 other
States, prohibits the use of neuromuscular blocking agents
in euthanizing animals). In the Netherlands, however, the
use of pancuronium bromide is recommended for purposes of
lawful assisted suicide. See ante, at 58 (plurality opinion)
(discussing the Royal Dutch Society for the Advancement of
Pharmacy’s recommendation of the use of a muscle relaxant

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such as pancuronium in addition to thiopental). See also
Kimsma, Euthanasia and Euthanizing Drugs in The Nether
lands, reprinted in Drug Use in Assisted Suicide and Eutha
nasia 193, 199–202 (M. Battin & A. Lipman eds. 1996) (dis
cussing use of neuromuscular relaxants). Why, one might
ask, if the use of pancuronium bromide is undesirable, would
those in the Netherlands, interested in practices designed to
bring about a humane death, recommend the use of that, or
similar, drugs? Petitioners pointed out that in the Nether
lands, physicians trained in anesthesiology are involved in
assisted suicide, while that is not the case in Kentucky. See
Tr. of Oral Arg. 55. While important, that difference does
not resolve the apparently conflicting views about the inher
ent propriety or impropriety of use of this drug to extinguish
human life humanely.
Similarly, petitioners argue for better trained personnel.
But it is clear that both the American Medical Association
(AMA) and the American Nursing Association (ANA) have
rules of ethics that strongly oppose their members’ participa
tion in executions. See Brief for American Society of Anes
thesiologists as Amicus Curiae 2–3 (citing AMA, Code of
Medical Ethics, Policy E–2.06 Capital Punishment (2000),
online at http://www.ama-assn.org/ama1/pub/upload/mm/369/
e206capitalpunish.pdf (all Internet materials as visited
Apr. 10, 2008, and available in Clerk of Court’s case file));
ANA, Position Statement: Nurses’ Participation in Capital
Punishment (1994), online at http://nursingworld.org/Main
menuCategories/HealthcareandPolicyIssues/ANAPosition
Statements/EthicsandHumanRights.aspx (noting that nurses’
participation in executions “is viewed as contrary to the fun
damental goals and ethical traditions of the profession”).
Cf. Ky. Rev. Stat. Ann. § 431.220(3) (West 2006) (Kentucky
prohibiting a physician from participating in the “conduct of
an execution,” except to certify the cause of death). And
these facts suggest that finding better trained personnel may
be more difficult than might, at first blush, appear.

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Nor can I find in the record in this case any stronger evi
dence in petitioners’ favor than the literature itself provides
of an untoward, readily avoidable risk of severe pain. In
deed, Justice Ginsburg has accepted what I believe is peti
tioners’ strongest claim, namely, Kentucky should require
more thorough testing as to unconsciousness. See post, at
117–123. In respect to this matter, however, I must agree
with the plurality and Justice Stevens. The record pro
vides too little reason to believe that such measures, if
adopted in Kentucky, would make a significant difference.
The upshot is that I cannot find, either in the record or in
the readily available literature that I have seen, sufficient
grounds to believe that Kentucky’s method of lethal injection
creates a significant risk of unnecessary suffering. The
death penalty itself, of course, brings with it serious risks,
for example, risks of executing the wrong person, see, e. g.,
ante, at 85–86 (Stevens, J., concurring in judgment), risks
that unwarranted animus (in respect, e. g., to the race of vic
tims) may play a role, see, e. g., ante, at 85, risks that those
convicted will find themselves on death row for many years,
perhaps decades, to come, see Smith v. Arizona, 552 U. S.
985 (2007) (Breyer, J., dissenting from denial of certiorari).
These risks in part explain why that penalty is so controver
sial. But the lawfulness of the death penalty is not before
us. And petitioners’ proof and evidence, while giving rise
to legitimate concern, do not show that Kentucky’s method
of applying the death penalty amounts to “cruel and un
usual punishmen[t].”
For these reasons, I concur in the judgment.
Justice Ginsburg, with whom Justice Souter joins,
dissenting.
It is undisputed that the second and third drugs used in
Kentucky’s three-drug lethal injection protocol, pancuronium
bromide and potassium chloride, would cause a conscious
inmate to suffer excruciating pain. Pancuronium bromide

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paralyzes the lung muscles and results in slow asphyxiation.
App. 435, 437, 625. Potassium chloride causes burning and
intense pain as it circulates throughout the body. Id., at 348,
427, 444, 600, 626. Use of pancuronium bromide and potas
sium chloride on a conscious inmate, the plurality recognizes,
would be “constitutionally unacceptable.” Ante, at 53.
The constitutionality of Kentucky’s protocol therefore
turns on whether inmates are adequately anesthetized by
the first drug in the protocol, sodium thiopental. Ken
tucky’s system is constitutional, the plurality states, because
“petitioners have not shown that the risk of an inadequate
dose of the first drug is substantial.” Ante, at 53–54. I
would not dispose of the case so swiftly given the character
of the risk at stake. Kentucky’s protocol lacks basic safe
guards used by other States to confirm that an inmate is
unconscious before injection of the second and third drugs.
I would vacate and remand with instructions to consider
whether Kentucky’s omission of those safeguards poses an
untoward, readily avoidable risk of inflicting severe and un
necessary pain.
I
The Court has considered the constitutionality of a specific
method of execution on only three prior occasions. Those
cases, and other decisions cited by the parties and amici,
provide little guidance on the standard that should govern
petitioners’ challenge to Kentucky’s lethal injection protocol.
In Wilkerson v. Utah, 99 U. S. 130 (1879), the Court held
that death by firing squad did not rank among the “cruel and
unusual punishments” banned by the Eighth Amendment.
In so ruling, the Court did not endeavor “to define with ex
actness the extent of the constitutional provision which pro
vides that cruel and unusual punishments shall not be in
flicted.” Id., at 135–136. But it was “safe to affirm,” the
Court stated, that “punishments of torture . . . , and all oth
ers in the same line of unnecessary cruelty, are forbidden.”
Id., at 136.

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Ginsburg, J., dissenting
Next, in In re Kemmler, 136 U. S. 436 (1890), death by
electrocution was the assailed method of execution.1 The
Court reiterated that the Eighth Amendment prohibits “tor
ture” and “lingering death.” Id., at 447. The word “cruel,”
the Court further observed, “implies . . . something in
human . . . something more than the mere extinguishment
of life.” Ibid. Those statements, however, were made en
passant. Kemmler’s actual holding was that the Eighth
Amendment does not apply to the States, id., at 448–449,2 a
proposition we have since repudiated, see, e. g., Robinson v.
California, 370 U. S. 660 (1962).
Finally, in Louisiana ex rel. Francis v. Resweber, 329 U. S.
459 (1947), the Court rejected Eighth and Fourteenth
Amendment challenges to a reelectrocution following an ear
lier attempt that failed to cause death. The plurality opin
ion in that case first stated: “The traditional humanity of
modern Anglo-American law forbids the infliction of unnec
essary pain in the execution of the death sentence.” Id., at
463. But the very next sentence varied the formulation; it
referred to the “[p]rohibition against the wanton infliction of
pain.” Ibid.
No clear standard for determining the constitutionality of
a method of execution emerges from these decisions. More
over, the age of the opinions limits their utility as an aid to
resolution of the present controversy. The Eighth Amend
ment, we have held, “ ‘must draw its meaning from the
evolving standards of decency that mark the progress of a
1 Hanging was the State’s prior mode of execution. Electrocution, con
sidered “less barbarous,” indeed “the most humane” way to administer
the death penalty, was believed at the time to “result in instantaneous,
and consequently in painless, death.” In re Kemmler, 136 U. S. 436, 443–
444 (1890) (internal quotation marks omitted).
2 The Court also ruled in Kemmler that the State’s election to carry
out the death penalty by electrocution in lieu of hanging encountered no
Fourteenth Amendment shoal: No privilege or immunity of United States
citizenship was entailed, nor did the Court discern any deprivation of due
process. Id., at 448–449.

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maturing society.’ ” Atkins v. Virginia, 536 U. S. 304, 311–
312 (2002) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958)
(plurality opinion)). Wilkerson was decided 129 years ago,
Kemmler 118 years ago, and Resweber 61 years ago. What
ever little light our prior method-of-execution cases might
shed is thus dimmed by the passage of time.
Further phrases and tests can be drawn from more recent
decisions, for example, Gregg v. Georgia, 428 U. S. 153 (1976).
Speaking of capital punishment in the abstract, the lead opin
ion said that the Eighth Amendment prohibits “the unneces
sary and wanton infliction of pain,” id., at 173 ( joint opinion
of Stewart, Powell, and Stevens, JJ.); the same opinion also
cautioned that a death sentence cannot “be imposed under
sentencing procedures that creat[e] a substantial risk that it
would be inflicted in an arbitrary and capricious manner,”
id., at 188.
Relying on Gregg and our earlier decisions, the Kentucky
Supreme Court stated that an execution procedure violates
the Eighth Amendment if it “creates a substantial risk of
wanton and unnecessary infliction of pain, torture or linger
ing death.” 217 S. W. 3d 207, 209, 210 (2006). Petitioners
respond that courts should consider “(a) the severity of pain
risked, (b) the likelihood of that pain occurring, and (c) the
extent to which alternative means are feasible.” Brief for
Petitioners 38 (emphasis added). The plurality settles
somewhere in between, requiring a “substantial risk of seri
ous harm” and considering whether a “feasible, readily im
plemented” alternative can “significantly reduce” that risk.
Ante, at 52 (internal quotation marks omitted).
I agree with petitioners and the plurality that the degree
of risk, magnitude of pain, and availability of alternatives
must be considered. I part ways with the plurality, how
ever, to the extent its “substantial risk” test sets a fixed
threshold for the first factor. The three factors are interre
lated; a strong showing on one reduces the importance of
the others.

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Lethal injection as a mode of execution can be expected,
in most instances, to result in painless death. Rare though
errors may be, the consequences of a mistake about the con
demned inmate’s consciousness are horrendous and effec
tively undetectable after injection of the second drug.
Given the opposing tugs of the degree of risk and magnitude
of pain, the critical question here, as I see it, is whether a
feasible alternative exists. Proof of “a slightly or margin
ally safer alternative” is, as the plurality notes, insufficient.
Ante, at 51. But if readily available measures can materi
ally increase the likelihood that the protocol will cause no
pain, a State fails to adhere to contemporary standards of
decency if it declines to employ those measures.
II
Kentucky’s Legislature adopted lethal injection as a
method of execution in 1998. See 1998 Ky. Acts ch. 220,
p. 777, Ky. Rev. Stat. Ann. § 431.220(1)(a) (West 2006). Law
makers left the development of the lethal injection protocol
to officials in the Department of Corrections. Those offi
cials, the trial court found, were “given the task without the
benefit of scientific aid or policy oversight.” App. 768.
“Kentucky’s protocol,” that court observed, “was copied from
other states and accepted without challenge.” Ibid. Ken
tucky “did not conduct any independent scientific or medical
studies or consult any medical professionals concerning the
drugs and dosage amounts to be injected into the con
demned.” Id., at 760, ¶3. Instead, the trial court noted,
Kentucky followed the path taken in other States that “sim
ply fell in line” behind the three-drug protocol first devel
oped by Oklahoma in 1977. Id., at 756. See also ante, at
43, n. 1 (plurality opinion).
Kentucky’s protocol begins with a careful measure: Only
medical professionals may perform the venipunctures and es
tablish intravenous (IV) access. Members of the IV team
must have at least one year’s experience as a certified medi

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cal assistant, phlebotomist, emergency medical technician
(EMT), paramedic, or military corpsman. App. 984; ante, at
55 (plurality opinion). Kentucky’s IV team currently has
two members: a phlebotomist with 8 years’ experience and
an EMT with 20 years’ experience. App. 273–274. Both
members practice siting catheters at ten lethal injection
training sessions held annually. Id., at 984.
Other than using qualified and trained personnel to estab
lish IV access, however, Kentucky does little to ensure that
the inmate receives an effective dose of sodium thiopental.
After siting the catheters, the IV team leaves the execution
chamber. Id., at 977. From that point forward, only the
warden and deputy warden remain with the inmate. Id., at
276. Neither the warden nor the deputy warden has any
medical training.
The warden relies on visual observation to determine
whether the inmate “appears” unconscious. Id., at 978. In
Kentucky’s only previous execution by lethal injection, the
warden’s position allowed him to see the inmate best from
the waist down, with only a peripheral view of the inmate’s
face. See id., at 213–214. No other check for consciousness
occurs before injection of pancuronium bromide. Ken
tucky’s protocol does not include an automatic pause in the
“rapid flow” of the drugs, id., at 978, or any of the most basic
tests to determine whether the sodium thiopental has
worked. No one calls the inmate’s name, shakes him,
brushes his eyelashes to test for a reflex, or applies a noxious
stimulus to gauge his response.
Nor does Kentucky monitor the effectiveness of the so
dium thiopental using readily available equipment, even
though the inmate is already connected to an electrocardio
gram (EKG), id., at 976. A drop in blood pressure or heart
rate after injection of sodium thiopental would not prove
that the inmate is unconscious, see id., at 579–580; ante, at
59 (plurality opinion), but would signal that the drug has

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entered the inmate’s bloodstream, see App. 424, 498, 578, 580;
8 Tr. 1099 (May 2, 2005). Kentucky’s own expert testified
that the sodium thiopental should “cause the inmate’s blood
pressure to become very, very low,” App. 578, and that a
precipitous drop in blood pressure would “confir[m]” that the
drug was having its expected effect, id., at 580. Use of a
blood pressure cuff and EKG, the record shows, is the stand
ard of care in surgery requiring anesthesia. Id., at 539.3
A consciousness check supplementing the warden’s visual
observation before injection of the second drug is easily im
plemented and can reduce a risk of dreadful pain. Pan
curonium bromide is a powerful paralytic that prevents all
voluntary muscle movement. Once it is injected, further
monitoring of the inmate’s consciousness becomes impracti
cal without sophisticated equipment and training. Even if
the inmate were conscious and in excruciating pain, there
would be no visible indication.4
Recognizing the importance of a window between the first
and second drugs, other States have adopted safeguards not
contained in Kentucky’s protocol. See Brief for Criminal
3 The plurality deems medical standards irrelevant in part because
“drawn from a different context.” Ante, at 60. Medical professionals
monitor blood pressure and heart rate, however, not just to save lives, but
also to reduce the risk of consciousness during otherwise painful proce
dures. Considering that the constitutionality of Kentucky’s protocol de
pends on guarding against the same risk, see supra, at 114; ante, at 53–54
(plurality opinion), the plurality’s reluctance to consider medical practice
is puzzling. No one is advocating the wholesale incorporation of medical
standards into the Eighth Amendment. But Kentucky could easily moni
tor the inmate’s blood pressure and heart rate without physician involve
ment. That medical professionals consider such monitoring important
enough to make it the standard of care in medical practice, I remain per
suaded, is highly instructive.
4 Petitioners’ expert testified that a layperson could not tell from visual
observation if a paralyzed inmate was conscious and that doing so would
be difficult even for a professional. App. 418. Kentucky’s warden can
didly admitted: “I honestly don’t know what you’d look for.” Id., at 283.

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Justice Legal Foundation as Amicus Curiae 19–23.5 Flor
ida pauses between injection of the first and second drugs so
the warden can “determine, after consultation, that the in
mate is indeed unconscious.” Lightbourne v. McCollum,
969 So. 2d 326, 346 (Fla. 2007) (per curiam) (internal quota
tion marks omitted). The warden does so by touching the
inmate’s eyelashes, calling his name, and shaking him. Id.,
at 347.6 If the inmate’s consciousness remains in doubt in
Florida, “the medical team members will come out from the
chemical room and consult in the assessment of the inmate.”
Ibid. During the entire execution, the person who inserted
the IV line monitors the IV access point and the inmate’s
face on closed-circuit television. Ibid.
In Missouri, “medical personnel must examine the prisoner
physically to confirm that he is unconscious using standard
clinical techniques and must inspect the catheter site again.”
Taylor v. Crawford, 487 F. 3d 1072, 1083 (CA8 2007). “The
second and third chemicals are injected only after confirma
tion that the prisoner is unconscious and after a period of at
least three minutes has elapsed from the first injection of
thiopental.” Ibid.
In California, a member of the IV team brushes the in
mate’s eyelashes, speaks to him, and shakes him at the half
5 Because most death penalty States keep their protocols secret, a com
prehensive survey of other States’ practices is not available. See Brief
for American Civil Liberties Union et al. as Amici Curiae 6–12.
6 Florida’s expert in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007)
(per curiam), who also served as Kentucky’s expert in this case, testified
that the eyelash test is “probably the most common first assessment that
we use in the operating room to determine . . . when a patient might have
crossed the line from being conscious to unconscious.” 4 Tr. in State v.
Lightbourne, No. 81–170–CF (Fla. Cir. Ct., Marion Cty.), p. 511, online at
http://www.cjlf.org/files/LightbourneRecord.pdf (all Internet materials as
visited Apr. 14, 2008, and in Clerk of Court’s case file). “A conscious per
son, if you touch their eyelashes very lightly, will blink; an unconscious
person typically will not.” Ibid. The shaking and name-calling tests, he
further testified, are similar to those taught in basic life support courses.
See id., at 512.

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way point and, again, at the completion of the sodium thio
pental injection. See State of California, San Quentin
Operational Procedure No. 0–770, Execution by Lethal Injec
tion, § V(S)(4)(e) (2007), online at http://www.cdcr.ca.gov/
News/docs/RevisedProtocol.pdf.
In Alabama, a member of the execution team “begin[s] by
saying the condemned inmate’s name. If there is no re
sponse, the team member will gently stroke the condemned
inmate’s eyelashes. If there is no response, the team mem
ber will then pinch the condemned inmate’s arm.” Re
spondents’ Opposition to Callahan’s Application for a Stay of
Execution in Callahan v. Allen, O. T. 2007, No. 07A630, p. 3
(internal quotation marks omitted).
In Indiana, officials inspect the injection site after admin
istration of sodium thiopental, say the inmate’s name, touch
him, and use ammonia tablets to test his response to a nox
ious nasal stimulus. See Tr. of Preliminary Injunction
Hearing in 1:06–cv–1859 (SD Ind.), pp. 199–200, online at
http://www.law.berkeley.edu/clinics/dpclinic/LethalInjection/
Public/MoralesTaylorAmicus/20.pdf (hereinafter Timberlake
Hearing).7
These checks provide a degree of assurance—missing from
Kentucky’s protocol—that the first drug has been properly
administered. They are simple and essentially costless to
employ, yet work to lower the risk that the inmate will be
subjected to the agony of conscious suffocation caused by
pancuronium bromide and the searing pain caused by potas
sium chloride. The record contains no explanation why
Kentucky does not take any of these elementary measures.
The risk that an error administering sodium thiopental
would go undetected is minimal, Kentucky urges, because if
the drug was mistakenly injected into the inmate’s tissue,
not a vein, he “would be awake and screaming.” Tr. of Oral
Arg. 30–31. See also Brief for Respondents 42; Brief for
7 In Indiana, a physician also examines the inmate after injection of the
first drug. Timberlake Hearing 199.

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State of Texas et al. as Amici Curiae 26–27. That ar
gument ignores aspects of Kentucky’s protocol that render
passive reliance on obvious signs of consciousness, such as
screaming, inadequate to determine whether the inmate is
experiencing pain.
First, Kentucky’s use of pancuronium bromide to paralyze
the inmate means he will not be able to scream after the
second drug is injected, no matter how much pain he is expe
riencing. Kentucky’s argument, therefore, appears to rest
on the assertion that sodium thiopental is itself painful when
injected into tissue rather than a vein. See App. 601. The
trial court made no finding on that point, and Kentucky cites
no supporting evidence from executions in which it is known
that sodium thiopental was injected into the inmate’s soft
tissue. See, e. g., Lightbourne, 969 So. 2d, at 344 (describing
execution of Angel Diaz).
Second, the inmate may receive enough sodium thiopental
to mask the most obvious signs of consciousness without re
ceiving a dose sufficient to achieve a surgical plane of anes
thesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected
too quickly, the increase in blood pressure can cause the in
mate’s veins to burst after a small amount of sodium thiopen
tal has been administered. Cf. App. 217 (describing risk of
“blowout”). Kentucky’s protocol does not specify the rate
at which sodium thiopental should be injected. The execu
tioner, who does not have any medical training, pushes the
drug “by feel” through five feet of tubing. Id., at 284, 286–
287.8 In practice sessions, unlike in an actual execution,
there is no resistance on the catheter, see id., at 285; thus
the executioner’s training may lead him to push the drugs
too fast.
8 The length of the tubing contributes to the risk that the inmate will
receive an inadequate dose of sodium thiopental. The warden and deputy
warden watch for obvious leaks in the execution chamber, see ante, at
45–46 (plurality opinion), but the line also snakes into the neighboring
control room through a small hole in the wall, App. 280.

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“The easiest and most obvious way to ensure that an in
mate is unconscious during an execution,” petitioners argued
to the Kentucky Supreme Court, “is to check for conscious
ness prior to injecting pancuronium [bromide].” Brief for
Appellants in No. 2005–SC–00543, p. 41. See also App.
30, ¶105( j) (Complaint) (alleging Kentucky’s protocol does
not “require the execution team to determine that the
condemned inmate is unconscious prior to administering the
second and third chemicals”). The court did not address
petitioners’ argument. I would therefore remand with in
structions to consider whether the failure to include readily
available safeguards to confirm that the inmate is uncon
scious after injection of sodium thiopental, in combination
with the other elements of Kentucky’s protocol, creates an
untoward, readily avoidable risk of inflicting severe and un
necessary pain.