and 09-2052 ROBERT W. JACKSON, III v. CARL C. DANBERG, Commissioner, Delaware Department of Correction

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 09-1925 and 09-2052
ROBERT W. JACKSON, III
v.
CARL C. DANBERG, Commissioner,
Delaware Department of Correction;
THOMAS L. CARROLL, Warden,
Delaware Correctional Center;
BUREAU CHIEF PAUL HOWARD,
Delaware Bureau of Prisons;
OTHER UNKNOWN STATE ACTORS
RESPONSIBLE FOR AND PARTICIPATING IN THE
CARRYING OUT OF PLAINTIFF’S EXECUTION,
All in their Individual and Official Capacities
Robert W. Jackson, III, individually and
on behalf of the Certified Class,
Appellant
On Appeal from the United States District Court
for the District of Delaware

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2
(D.C. No. 06-cv-00300)
District Judge: Honorable Sue L. Robinson
Argued December 16, 2009
Before: FISHER, HARDIMAN
and VAN ANTWERPEN, Circuit Judges.
(Filed: February 1, 2010)
Helen A. Marino
Maria K. Pulzetti
Michael Wiseman (Argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
Attorneys for Appellants
Elizabeth R. McFarlan
Loren C. Meyers
Marc P. Niedzielski (Argued)
Gregory E. Smith
Department of Justice
820 North French Street
Carvel Office Building, 7th Floor
Wilmington, DE 19801
Attorneys for Appellees

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3
OPINION OF THE COURT
FISHER, Circuit Judge.
This appeal, brought by a class of inmates sentenced to
death by the State of Delaware, presents two main questions for
our review. First, we must decide how to interpret the Supreme
Court’s highly splintered opinion in Baze v. Rees, 553 U.S. 35,
128 S. Ct. 1520 (2008), which upheld Kentucky’s lethal
injection protocol against a challenge under the Eighth
Amendment of the Constitution. The second question, whose
resolution is largely dependent on the outcome of the first, is
whether the lethal injection method employed by Delaware
violates the Eighth Amendment. We conclude that, under Baze,
an execution protocol that does not present a substantial risk of
serious harm passes constitutional muster and that, based on the
record before us, Delaware’s protocol presents no such risk.
Accordingly, we will affirm the District Court’s grant of
summary judgment for Delaware and dissolve the District
Court’s stay.

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Because this is an appeal from the grant of summary1
judgment, we view the evidence in a light most favorable to the
class of death row inmates challenging Delaware’s execution
protocol, the nonmoving party. See Fagan v. City of Vineland,
22 F.3d 1296, 1299 (3d Cir. 1994) (en banc).
Delaware law provides that if its lethal injection protocol2
is held unconstitutional, executions must be carried out by
hanging. DEL. CODE ANN. tit. 11, § 4209(f). Previously,
Delaware permitted inmates to select whether they wished to be
executed by lethal injection or hanging.
4
I.
A. Facts1
Delaware, like the great majority of the more than thirty
states that currently allow capital punishment, see Baze, 128 S.
Ct. at 1527 n.1, requires that executions be carried out by lethal
injection. DEL. CODE ANN. tit. 11, § 4209(f) (2006 Supp.). The2
statute requiring execution by lethal injection does not mandate
the use of any particular drug or drugs, but does specify that
“[p]unishment of death shall . . . be inflicted by intravenous
[(“IV”)] injection of a substance or substances in a lethal
quantity sufficient to cause death and until such person
sentenced to death is dead[.]” Id. The statute requires the
Commissioner of the Delaware Department of Correction to
devise procedures governing executions and to supervise
executions. See id.

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5
Pursuant to the authority granted by the Delaware statute,
the Commissioner has devised a protocol for use during
executions. The protocol has been amended several times over
many years. Delaware carried out its first execution by lethal
injection in 1992 under one such protocol. That protocol, like
the current version, calls for the sequential IV injection of three
chemicals into an inmate’s bloodstream. The first chemical is
sodium thiopental, which renders the inmate unconscious by
inducing a coma. The second chemical is pancuronium
bromide, a muscle relaxant that essentially paralyzes the inmate.
Finally, the inmate’s heart is stopped by an injection of
potassium chloride.
Since 1992, Delaware has carried out a total of thirteen
executions by lethal injection under its variably amended
protocols. The execution teams involved in those executions
have not always followed those protocols to the letter. In some
instances, for example, the execution teams failed to administer
the correct chemical dosage into the inmate’s bloodstream. In
other instances, the execution teams did not attend the requisite
number of training sessions or verify that the equipment used
during the executions was fully operational. Furthermore,
Delaware officials have not consistently followed up with
execution teams to determine whether a particular execution
proceeded in accordance with the protocol or whether
improvements in the protocol or its implementation were in
order.
On August 29, 2008, Delaware instituted a new lethal
injection protocol. Under the new protocol, the Commissioner
and the Warden of the Delaware Correctional Center are

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Those specialists include a certified medical assistant, a3
phlebotomist, an emergency medical technician, a paramedic,
and a military corpsman.
6
designated as members of the execution team. The Warden
selects the remaining team members from Department of
Correction personnel based on a number of criteria, including
length of service, ability to maintain confidentiality, maturity,
willingness to participate, work performance, professionalism,
staff recommendations, and review of personnel files. At least
two members of the execution team are designated as members
of the IV team, which may also include various specialists with
at least one year of professional experience. Members of the3
execution team are required to read the relevant portion of the
protocol pertaining to their particular function and to rehearse
the protocol at least three times within ninety days of a
scheduled execution.
Under Delaware law, an inmate’s execution is scheduled
by a state trial court and must take place between the hours of
12:01 a.m. and 3:00 a.m. See DEL. CODE ANN. tit. 11, § 4209(f).
No more than ten witnesses are permitted to attend an execution,
including one adult member of the immediate family of the
victim. See id.
Once an inmate’s execution is scheduled, the new
protocol calls for an individual designated by the Warden,
approximately three hours before the execution, to transport the
chemicals from a locked refrigerator to an “injection room,”
where the IV team prepares the syringes. Members of a “tie-

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7
down” team strap the inmate to a gurney in the execution
chamber. After the tie-down team has exited the chamber, the
IV team enters the chamber and verifies that the inmate’s blood
flow is not overly restricted by the gurney straps. The IV team
then inserts a primary IV line and a backup IV line. If both the
primary and backup lines cannot be established within one hour,
the Commissioner must contact the Governor of Delaware and
request that the execution be postponed. If the lines are
established, the Warden signals to the IV team to administer the
three-drug sequence. After the delivery of the sodium thiopental
and a saline solution, the IV team must wait two minutes and
check the inmate’s consciousness. During this time, the curtain
to the execution chamber is kept closed. The Warden calls the
inmate’s name out loud to observe any reaction from the inmate.
At the same time, a member of the IV team assesses the
inmate’s consciousness by touching the inmate, shaking his
shoulder, and brushing his eyelashes. If the inmate appears to
be unconscious, the curtain is reopened and the Warden signals
for the pancuronium bromide to be administered, followed by
the potassium chloride. After two minutes have passed, if the
inmate does not appear to be unconscious, the Warden must
direct the IV team to discontinue use of the primary IV line and
to resort to the backup IV line, beginning with a new injection
of sodium thiopental. Following the injection of all three
chemicals, the IV team signals the Warden that the process is
complete. One of the IV team members then begins a
stopwatch. If, after ten minutes, a heart monitor connected to
the inmate does not indicate a flat line and a doctor is unable to
pronounce the inmate dead, the Warden must order a new round
of delivery of the three chemicals. The protocol calls for the
process to continue until the inmate is declared dead.

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Jackson was convicted and sentenced to death for the4
1992 murder of Elizabeth Girardi. See Jackson v. State, 684
A.2d 745 (Del. 1996); Jackson v. State, 643 A.2d 1360 (Del.
1994).
The complaint named the following defendants: Stanley5
W. Taylor, Jr., Commissioner, Delaware Department of
Correction; Thomas L. Carroll, Warden, Delaware Correctional
Center; Paul Howard, Bureau Chief, Delaware Bureau of
Prisons; and other unknown Delaware officials. In February
2007, the District Court substituted Taylor with his successor,
Carl C. Danberg.
42 U.S.C. § 1983 provides in part:6
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
8
To date, no inmate has been executed under Delaware’s
current lethal injection protocol.
B. Procedural History
In May 2006, Robert W. Jackson, III initiated this4
lawsuit by filing a complaint in the United States District Court
for the District of Delaware against various known and
unknown Delaware officials (collectively referred to in this
opinion as “Delaware”). Jackson asserted a claim under 425
U.S.C. § 1983, alleging that Delaware’s then-effective lethal6

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subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured[.]
9
injection protocol violated his right to be free from cruel and
unusual punishment under the Eighth and Fourteenth
Amendments of the Constitution. He sought temporary and
permanent injunctive relief to prevent his execution by lethal
injection until Delaware’s protocol was brought into conformity
with constitutional standards. Within days of filing his
complaint, Jackson moved for a preliminary injunction to
prevent his execution, which was then scheduled for May 19,
2006. The District Court granted that motion and stayed
Jackson’s execution. Thereafter, on Jackson’s motion the
District Court certified Jackson’s proposed class of Delaware
death row inmates (collectively referred to in this opinion as the
“Plaintiffs”) and appointed class counsel.
In September 2007, the District Court postponed a then-
impending trial date in light of the Supreme Court’s grant of the
petition for a writ of certiorari in Baze v. Rees, 553 U.S. 35, 128
S. Ct. 1520 (2008). In August 2008, after Baze was decided,
Delaware notified the District Court that it had revised its lethal
injection protocol. In December 2008, Delaware moved for
summary judgment, essentially arguing that its new protocol was
substantially similar to the one Baze found constitutional. The
District Court held a hearing on the motion and, in March 2009,

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10
granted it in full. Jackson v. Danberg, 601 F. Supp. 2d 589 (D.
Del. 2009). In its ruling, the District Court saw its inquiry as
twofold: first, whether the Plaintiffs could show that Delaware
would likely fail to comply with its new protocol given its
historical noncompliance with its old protocol; and second,
assuming an affirmative answer to the first inquiry, whether the
Plaintiffs could show that Delaware’s history of noncompliance
presented an objectively intolerable risk of harm in the future.
As to the first inquiry, the District Court declined what it
perceived as the Plaintiffs’ invitation to “assume that future
conduct by different personnel under a new lethal injection
protocol in a different legal environment will reflect past
conduct by former personnel under a now rejected protocol.” Id.
at 598. In the Court’s view, the Plaintiffs’ theory would require
a finding that “the new protocol is simply too complicated for a
State to carry out . . . or that Delaware’s personnel will
intentionally ignore the requirements of the new protocol in
order to intentionally cause undue pain and suffering.” Id. The
District Court concluded that Baze foreclosed the former
proposition and that the record did not support either
proposition. The Court further found that, even assuming the
Plaintiffs’ evidence regarding future harm had record support,
such harm did not raise constitutional concerns. The Court
explained that the only evidence the Plaintiffs had proffered in
this regard related to the November 2005 execution of Brian
Steckel. Steckel’s execution had been prolonged by the slow
delivery of sodium thiopental into his bloodstream, the District
Court wrote, but that fact alone did not provide a sufficient basis
for concluding that there was a “substantial risk of an inadequate
dose of sodium thiopental under the new protocol.” Id. at 599.
Given this evidentiary deficiency, the Court held that the

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Of course, no party had filed a notice of appeal at the7
time of the District Court’s ruling. The District Court evidently
presumed – correctly, as it turned out – that an appeal was
forthcoming.
Following the docketing of the parties’ respective8
appeals, the Plaintiffs moved to remand for the District Court to
reconsider its summary judgment ruling or, in the alternative, for
additional fact-finding and supplemental briefing to be
submitted to this Court. Delaware moved to strike that request.
This Court granted the Plaintiffs’ motion insofar as it sought
permission to file supplemental briefs and denied Delaware’s
motion to strike as moot. Both parties have filed supplemental
briefs.
11
Plaintiffs had failed to show that “any maladministration of the
new protocol [was] very likely to pose an objectively intolerable
risk of harm.’” Id. (quoting Baze, 128 S. Ct. at 1531) (internal
quotation marks and footnote omitted). Accordingly, the
District Court found that there were no genuine questions of
material fact in dispute and granted summary judgment for
Delaware. The Court, apparently acting sua sponte,
simultaneously ordered its May 2006 stay of Jackson’s
execution to remain in effect pending appeal.7
The Plaintiffs have timely appealed the District Court’s
grant of summary judgment for Delaware. Delaware has timely
appealed the District Court’s stay pending appeal.8

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12
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over the purely legal question of how a
Supreme Court decision is to be interpreted. See Kadelski v.
Sullivan, 30 F.3d 399, 400 (3d Cir. 1994). We exercise plenary
review over the District Court’s grant of summary judgment.
See Alexander v. Nat’l Fire Ins. of Hartford, 454 F.3d 214, 219
n.4 (3d Cir. 2006); KingVision Pay-Per-View, Corp. v. 898
Belmont, Inc., 366 F.3d 217, 220 (3d Cir. 2004). To that end,
we are “required to apply the same test the district court should
have utilized initially.” Oritani Sav. & Loan Ass’n v. Fidelity &
Deposit Co. of Md., 989 F.2d 635, 637 (3d Cir. 1993) (quotation
marks and citation omitted). Summary judgment is appropriate
when “the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). In determining whether
such relief is warranted, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter
of law.” Id. at 251-52. We review a district court’s decision to
grant a stay pending appeal for abuse of discretion. See, e.g.,
Republic of Phil. v. Westinghouse Elec. Corp., 949 F.2d 653,
658 (3d Cir. 1991).

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13
III.
A. The Meaning of Baze
The Eighth Amendment, which applies to the states by
virtue of the Fourteenth Amendment, prohibits the infliction of
“cruel and unusual punishments.” U.S. Const. amend. VIII; see
Baze, 128 S. Ct. at 1529. In Baze, the petitioners challenged
Kentucky’s lethal injection protocol under the Eighth
Amendment. Conceding that Kentucky’s protocol would pass
constitutional scrutiny if implemented as intended, they based
their challenge on the risk that they would suffer significant pain
if the protocol were not fully observed. Kentucky’s protocol,
like Delaware’s current protocol, calls for the sequential
injection of sodium thiopental, pancuronium bromide, and
potassium chloride. A state trial court held a several-day bench
trial, during which it heard from approximately twenty
witnesses, and concluded that there was minimal risk that the
protocol would be maladministered. The Kentucky Supreme
Court affirmed.
The United States Supreme Court granted certiorari and
likewise affirmed. Chief Justice Roberts authored the plurality
opinion, which Justice Kennedy and Justice Alito joined.
Beginning from the premise – which neither party disputed –
that capital punishment is constitutional, the plurality rejected
the petitioners’ argument that Kentucky should adopt a one-
drug, instead of a three-drug, protocol and their accompanying
invitation to adopt an “unnecessary risk” standard in
adjudicating Eighth Amendment claims. Id. at 1532. Instead,
the plurality held that to prevail on such a claim an inmate must

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14
show that there is “a ‘substantial risk of serious harm,’ an
‘objectively intolerable risk of harm’ that prevents prison
officials from pleading that they were ‘subjectively blameless
for purposes of the Eighth Amendment.’” Id. at 1531 (quoting
Farmer v. Brennan, 511 U.S. 825, 842, 846 & n.9 (1994)).
Recognizing that “[s]ome risk of pain is inherent in any method
of execution – no matter how humane – if only from the
prospect of error in following the required procedure[,]” the
plurality explained that “subjecting individuals to a risk of future
harm . . . can qualify as cruel and unusual punishment.” Id. at
1529-30. To prevail on a claim that the exposure to such risk
runs afoul of the Constitution, an inmate must demonstrate that
“the conditions presenting the risk must be ‘sure or very likely
to cause serious illness and needless suffering,’ and give rise to
‘sufficiently imminent dangers.’” Id. at 1530-31 (quoting
Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). An
inmate falls short of that burden by showing only that “an
execution method may result in pain, either by accident or as an
inescapable consequence of death[.]” Id. at 1531.
The plurality was unpersuaded by the petitioners’
contention that Kentucky should adopt a one-drug protocol
because of the risk that the first drug in the three-drug protocol
might be maladministered. See id. at 1533. While
acknowledging that, “failing a proper dose of sodium thiopental
that would render the prisoner unconscious, there is a
substantial, constitutionally unacceptable risk of suffocation
from the administration of pancuronium bromide and pain from
the injection of potassium chloride[,]” id., the plurality
nevertheless wrote that “a condemned prisoner cannot
successfully challenge a State’s method of execution merely by

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15
showing a slightly or marginally safer alternative.” Id. at 1531.
The plurality explained that “[p]ermitting an Eighth Amendment
violation to be established on such a showing would threaten to
transform courts into boards of inquiry charged with
determining ‘best practices’ for executions, with each ruling
supplanted by another round of litigation touting a new and
improved methodology” and “would embroil the courts in
ongoing scientific controversies beyond their expertise, and
would substantially intrude on the role of state legislatures in
implementing their execution procedures – a role that by all
accounts the States have fulfilled with an earnest desire to
provide for a progressively more humane manner of death.” Id.
(citation omitted). The plurality did not categorically preclude
an inmate from proving an Eighth Amendment violation in light
of a safer alternative, but it did impose a heavy burden on an
inmate seeking to make such a showing. Specifically, in the
words of the plurality, the inmate’s
proffered alternatives must effectively address a
“substantial risk of serious harm.” To qualify, the
alternative procedure must be feasible, 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 advantages, 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.
Id. at 1532 (internal citation and footnote omitted).

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16
Applying these principles to the facts before it, the
plurality found that the petitioners had failed to establish that
there was a substantial risk of maladministration of Kentucky’s
protocol. The plurality saw no clear error in the trial court’s
determination that mixing the drugs was relatively
uncomplicated and pointed to the protocol’s various safeguards
ensuring an adequate delivery of sodium thiopental.
Specifically, the Court highlighted the protocol’s requirements
that IV team members have at least one year of professional
experience; that execution team members participate in at least
ten yearly practice sessions; and that the warden and deputy
warden be present in the execution chamber to watch for signs
of IV problems. See id. at 1533-34. In light of these safeguards,
the plurality concluded that “the risks identified by petitioners
are [not] so substantial or imminent as to amount to an Eighth
Amendment violation.” Id. at 1534.
Finally, the plurality responded to the suggestion of
Justice Stevens, who concurred in the judgment, that the
plurality opinion would “leave[] the disposition of other cases
uncertain,” by explaining as follows:
A stay of execution may not be granted on
grounds such as those asserted here unless the
condemned prisoner establishes that the State’s
lethal injection 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 protocol substantially similar to the

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While he joined in the plurality opinion, Justice Alito9
also concurred separately “to explain . . . how the holding should
be implemented.” Baze, 128 S. Ct. at 1538 (Alito, J.,
concurring). He wrote that because ethical considerations
prohibit the participation of certain medical professionals in
executions, “a suggested modification of a lethal injection
protocol cannot be regarded as ‘feasible’ 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.” Id. at 1540 (Alito, J.,
concurring). In this case, the Plaintiffs have suggested no such
modification to Delaware’s protocol.
17
protocol we uphold today would not create a risk
that meets this standard.
Id. at 1537 (emphasis added).9
In his concurrence in the judgment, Justice Stevens, in
addition to raising the abovementioned concern that the plurality
found ungrounded, questioned the utility of pancuronium
bromide in three-drug protocols, given the risk that “the inmate
will suffer excruciating pain before death occurs[,]” id. at 1543
(Stevens, J., concurring in the judgment), and suggested that
states consider eliminating it from their protocols. Id. at 1546
(Stevens, J., concurring in the judgment). Justice Stevens stated
his understanding that the death penalty is constitutional as a
general matter in light of the Court’s precedents and determined
that the petitioners had failed to meet their burden of showing

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Justice Scalia, who joined in Justice Thomas’10
concurrence in the judgment, wrote separately, in a concurrence
in the judgment in which Justice Thomas joined, to respond to
Justice Stevens’ personal repudiation of capital punishment. See
Baze, 128 S. Ct. at 1552-56 (Scalia, J., concurring in the
judgment).
18
that Kentucky’s protocol was unconstitutional under those
precedents, whether interpreted by the plurality or the dissent.
Id. at 1552 (Stevens., J., concurring in the judgment). However,
he also “relied on [his] own experience in reaching the
conclusion that the imposition of the death penalty represents
the pointless and needless extinction of life with only marginal
contributions to any discernible social or public purposes.” Id.
at 1551 (Stevens, J., concurring in the judgment) (internal
quotation marks omitted).10
Justice Thomas, with whom Justice Scalia joined,
concurred in the judgment, and thought Baze “an easy case.” Id.
at 1563 (Thomas, J., concurring in the judgment). In his view,
the plurality’s standard was both unsupported by Eighth
Amendment jurisprudence and amorphous, rendering it difficult
for lower courts to apply. See id. at 1556, 1561-62 (Thomas, J.,
concurring in the judgment). According to Justice Thomas, the
relevant inquiry in an Eighth Amendment challenge is whether
the challenged method of execution is designed to inflict pain.
See id. at 1563 (Thomas, J., concurring in the judgment).
“Because Kentucky’s lethal injection protocol is designed to
eliminate pain rather than to inflict it,” Justice Thomas wrote,

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19
the “petitioners’ challenge must fail.” Id. (Thomas, J.,
concurring in the judgment).
Justice Breyer concurred in the judgment as well. He
agreed with Justice Ginsburg’s dissenting opinion that a court
should evaluate several factors to determine the constitutionality
of a state’s execution protocol, but thought 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.” Id. (Breyer, J., concurring in the
judgment). Based on both “the record in this case [and] . . . the
literature on the subject,” Justice Breyer could not find
“sufficient evidence that Kentucky’s execution method poses the
significant and unnecessary risk of inflicting severe pain that
petitioners assert.” Id. 1563-64 (Breyer, J., concurring in the
judgment) (internal quotation marks and record citation
omitted).
Finally, Justice Ginsburg, with whom Justice Souter
joined, dissented. In Justice Ginsburg’s view, “[t]he
constitutionality of Kentucky’s protocol . . . turn[ed] on whether
inmates are adequately anesthetized by the first drug in the
protocol, sodium thiopental.” Id. at 1567 (Ginsburg, J.,
dissenting). She agreed with the plurality that “the degree of
risk, magnitude of pain, and availability of alternatives must be
considered,” but concluded that these factors “are interrelated
[such that] a strong showing on one reduces the importance of
the others.” Id. at 1568 (Ginsburg, J., dissenting). The “critical
question,” according to Justice Ginsburg, “is whether a feasible
alternative exists.” Id. at 1569 (Ginsburg, J., dissenting).
Contrasting the relatively deficient safeguards in Kentucky’s

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20
protocol with the greater safeguards included in other states’
protocols, Justice Ginsburg would have remanded “with
instructions to consider whether the failure to include readily
available safeguards to confirm that the inmate is unconscious
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 unnecessary pain.”
Id. at 1572 (Ginsburg, J., dissenting).
To summarize, the plurality announced a standard
governing challenges to lethal injection protocols in line with
select strains of the Court’s conditions-of-confinement Eighth
Amendment jurisprudence. Justices Stevens and Justice Breyer
found simply that the petitioners had failed to meet their burden
on the facts of this particular case, but for different reasons.
And Justice Thomas, joined by Justice Scalia, concluded that the
Eighth Amendment only prohibits deliberate efforts to inflict
pain. Finally, Justice Ginsburg, joined by Justice Souter,
adopted an “untoward, readily avoidable risk” test for assessing
method-of-execution challenges. Id. at 1567 (Ginsburg, J.,
dissenting).
Ordinarily, we apply the standard or standards endorsed
by a majority of Justices when interpreting Supreme Court
precedent. See Planned Parenthood of Se. Pa. v. Casey, 947
F.2d 682, 693 (3d Cir. 1991) (“In a run-of-the-mill case where
a majority of the Justices endorse a single legal standard, lower
courts simply follow that standard.” (internal citation omitted)),
modified on other grounds, 505 U.S. 833 (1992). As our
discussion above demonstrates, Baze is not an ordinary case.
Unlike most Supreme Court decisions, Baze is highly fractured.

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21
As a result, we must identify the Court’s holding by employing
the framework set out in Marks v. United States, 430 U.S. 188

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Some courts have assumed, with little or no explicit11
analysis, that the plurality opinion in Baze announced the
holding of the Court and thus that the plurality’s interpretation
of the Eighth Amendment is binding on lower courts. See, e.g.,
Harbison v. Little, 571 F.3d 531, 535 (6th Cir. 2009) (“Chief
Justice Roberts’s plurality opinion is controlling.”); Clemons v.
Crawford, 585 F.3d 1119, 1125-26 (8th Cir. 2009) (analyzing
the plurality opinion as the Court’s holding); Emmett v. Johnson,
532 F.3d 291, 298-99 (4th Cir. 2008) (same); but see Cooey v.
Strickland, 610 F. Supp. 2d 853, 919 (S.D. Ohio 2009) (“Absent
a controlling rationale set forth by a majority of the high court,
what can be gleaned from the diverse array of opinions in Baze
is debatable.”); Ventura v. State, 2 So. 3d 194, 200 (Fla. 2009)
(per curiam) (“[T]here are no reliable means of determining the
‘narrowest grounds’ presented in Baze because three blocks of
Justices provided three separate standards for determining the
constitutionality of a mode of execution.”). The parties in this
case apparently agree that the Baze plurality controls, and have
not briefed the issue. We certainly understand the allure of such
an approach, as it ensures that one readily identifiable set of
standards governs the outcome here. Significantly, however,
that approach ignores the fact that “[a] plurality opinion does not
. . . essentially differ in character from either a concurring
opinion or a dissenting opinion. Those joining in a plurality
opinion may speak with authority accorded wise men, but their
voices do not carry the authority of the Supreme Court as an
institution.” Rappa v. New Castle County, 18 F.3d 1043, 1058
n.21 (3d Cir. 1994) (quotation omitted). Furthermore, we are
22
(1977). See, e.g., Am. Civil Liberties Union of N.J. v.11

-- 22 of 47 --

convinced that a more developed analysis of Baze is warranted
under Marks and our precedents. See, e.g., Horn v. Thoratec
Corp., 376 F.3d 163, 175-76 (3d Cir. 2004) (analyzing the
holding of a splintered opinion); Anker Energy Corp. v.
Consolidation Coal Co., 177 F.3d 161, 169-72 (3d Cir. 1999)
(same); Unity Real Estate Co. v. Hudson, 178 F.3d 649, 656-59
(3d Cir. 1999) (same).
23
Schundler, 168 F.3d 92, 103 (3d Cir. 1999).
In Marks v. United States, the Supreme Court instructed
that “[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds[.]” 430 U.S. at 193 (internal quotation marks
and citation omitted); see also Planned Parenthood, 947 F.2d at
694 n.7 (“When six or more Justices join in the judgment and
they issue three or more opinions, . . . the idea is to locate the
opinion of the Justice or Justices who concurred on the
narrowest grounds necessary to secure a majority.”). Marks’
“principal objective . . . is to promote predictability in the law by
ensuring lower court adherence to Supreme Court precedent.”
Planned Parenthood, 947 F.2d at 693. “This objective requires
that, whenever possible, there be a single legal standard for the
lower courts to apply in similar cases and that this standard,
when properly applied, produce results with which a majority of
the Justices in the case articulating the standard would agree.”
Id. (emphasis added). That objective notwithstanding, Marks
applies “only where one opinion can be meaningfully regarded

-- 23 of 47 --

24
as ‘narrower’ than another and can represent a common
denominator of the Court’s reasoning.” Berwind Corp. v.
Comm’r of Soc. Sec., 307 F.3d 222, 234 (3d Cir. 2002) (internal
quotation marks and citation omitted). “Therefore, ‘in cases
where approaches differ, no particular standard is binding on an
inferior court because none has received the support of a
majority of the Supreme Court.’” Id. (quoting Anker Energy
Corp. v. Consolidation Coal Co., 177 F.3d 161, 170 (3d Cir.
1999)).
Both the Supreme Court and this Court have recognized
the difficulty of applying Marks under certain circumstances.
See Grutter v. Bollinger, 539 U.S. 306, 325 (2003); Nichols v.
United States, 511 U.S. 738, 745 (1994) (“This test is more
easily stated than applied[.]”); Horn v. Thoratec Corp., 376 F.3d
163, 175 (3d Cir. 2004) (“Splintered opinions by the Supreme
Court often result in some confusion as to which opinion or
rationale is binding on the lower federal courts.”); Unity Real
Estate Co. v. Hudson, 178 F.3d 649, 658 (3d Cir. 1999) (“The
splintered nature of the Court makes it difficult to distill a
guiding principle[.]”); Rappa v. New Castle County, 18 F.3d
1043, 1057 (3d Cir. 1994) (“[I]t is not always possible to
discover a single standard that legitimately constitutes the
narrowest ground for the decision.”). Indeed, in Nichols the
Supreme Court found it “not useful to pursue the Marks inquiry
to the utmost logical possibility when it has so obviously baffled
and divided the lower courts that have considered it.” 511 U.S.
at 745-46.
To understand how Marks works here, we find it useful
to consider the genesis of the framework Marks constructed.

-- 24 of 47 --

The petitioners wanted Memoirs’ standards to govern12
in their prosecutions because those standards were more
favorable to the defense than those announced in Miller.
25
Marks came to the Supreme Court following the petitioners’
convictions under a statute prohibiting the transportation of
obscene materials in interstate commerce. The petitioners had
argued in the district court that the jury instructions regarding
what constitutes obscenity should be derived from the Court’s
decision in A Book Named “John Cleland’s Memoirs of a
Woman of Pleasure” v. Attorney General of Massachusetts, 383
U.S. 413 (1966) (“Memoirs”). The district court disagreed and
instructed the jury in line with the Court’s decision in Miller v.
California, 413 U.S. 15 (1973), which was decided after the
conduct giving rise to the petitioners’ prosecutions but before
trial began. Although the main question presented in Marks12
was whether the standards in Miller could be applied
retroactively in a criminal prosecution under the Ex Post Facto
Clause of the Constitution, the Court first had to decide whether
any of the rules announced in Memoirs, given the Justices’
distinct approaches in that case, supplanted the rule earlier
formulated in Roth v. United States, 354 U.S. 476 (1957).
In Roth, a majority of the Justices had established the
following test for distinguishing obscenity from protected
speech: “whether to the average person, applying contemporary
community standards, the dominant theme of the material taken
as a whole appeals to prurient interest.” Id. at 489. That test
differed from the several tests articulated some years later by a
highly fractured Memoirs Court. There, the Court vacated a

-- 25 of 47 --

Justice Black wrote nothing new in Memoirs. Instead,13
he referred to his dissenting opinion in Mishkin v. New York,
383 U.S. 502 (1966).
Like Justice Black, Justice Stewart referred to his14
dissenting opinion in another case, Ginzburg v. United States,
383 U.S. 463 (1966).
26
conviction under a state obscenity law on First Amendment
grounds. The three-Justice plurality found that “[a] book cannot
be proscribed unless it is found to be utterly without redeeming
social value.” Memoirs, 383 U.S. at 419 (emphasis omitted).
Justice Douglas concurred in the judgment, reiterating the
position he had taken in Roth that “the First Amendment leaves
no power in government over expression of ideas.” Id. at 433
(Douglas, J., concurring in the judgment) (emphasis omitted).
Justice Black concurred in the judgment for much the same
reason: in his view, no expressive activity could be criminalized
under the First Amendment. See id. at 421 (Black, J.,
concurring in the judgment). Finally, Justice Stewart likewise13
concurred in the judgment, though on the ground that, in his
view, only “hardcore pornography” could be criminalized. See
id. (Stewart, J., concurring in the judgment).14
The Marks Court reasoned that because Justice Black and
Justice Douglas had concurred in the judgment based on their
“position that the First Amendment provides an absolute shield
against governmental action aimed at suppressing obscenity[,]”
the plurality’s view “constituted the holding of the Court and
provided the governing standards.” Marks, 430 U.S. at 193-94.

-- 26 of 47 --

27
That was so, the Court reasoned, because any material that could
not be criminalized under the plurality’s test perforce could not
be criminalized under the absolutist approach of Justice Black
and Justice Douglas. Id. In other words, the plurality’s test
represented the “narrowest grounds” of the concurring opinions.
Thus, the Court concluded that Roth’s test had been replaced by
the test of the Memoirs plurality because a majority of the
Memoirs Court had declined to follow Roth. Id.
Marks’ “narrowest grounds” language in turn sprang
from Gregg v. Georgia, 428 U.S. 153 (1976). In Gregg, the
Court reviewed its decision a few years earlier in Furman v.
Georgia, 408 U.S. 238 (1972), where the Justices had declared
Georgia’s death penalty statute unconstitutional, though for
different reasons. Two Justices had based their decision on their
view that the death penalty is always unconstitutional, while
three others had held that the statute was unconstitutional based
on the administration of the death penalty in Georgia at that
time. Confronted with this circumstance, the Gregg Court
concluded that “[s]ince five Justices wrote separately in support
of the judgments in Furman, the holding of the Court may be
viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds.” Gregg, 428 U.S.
at 169 n.15. The “narrowest grounds” in that case meant the
opinions of the three Justices who did not subscribe to an
absolute proscription of capital punishment.
For purposes of this appeal, the salient takeaway from
Marks and Gregg, and the cases they examined, is that the
Marks framework applies where one opinion is clearly
“narrower” than another, that is, where one opinion would

-- 27 of 47 --

Rappa v. New Castle County, 18 F.3d 1043 (3d Cir.15
1994), does not compel a contrary conclusion. There, we
declined to extract a binding rule from Metromedia, Inc. v. City
of San Diego, 453 U.S. 490 (1981), because “the plurality and
the concurrence took such markedly different approaches to
[deciding whether a city ordinance violated the First
Amendment] that there is no common denominator between
them.” Rappa, 18 F.3d at 1058. Metromedia produced five
separate opinions and involved factual and legal circumstances
quite distinguishable from those we face here.
28
always lead to the same result that a broader opinion would
reach. The controlling opinion in Memoirs, for instance, was
the plurality opinion because that opinion would find material
constitutionally protected in every instance in which Justices
Black and Douglas would so find. Similarly, the non-
controlling concurring opinions in Furman would strike down
death penalty statutes as unconstitutional in all cases, while the
controlling concurring opinions would do so in only a subset of
those cases. The scenarios presented in Marks and Furman
strongly resemble the one we confront here. The plurality
standard in Baze would find some lethal injection protocols
unconstitutional and others constitutional, while Justice Thomas
and Justice Scalia would find any lethal injection protocol
constitutional unless it were deliberately designed to inflict pain.
Put another way, the plurality is controlling when combined
with Justice Thomas’ concurrence in the judgment because any
lethal injection protocol constitutionally acceptable to the
plurality would invariably pass Justice Thomas’ per se rule.15

-- 28 of 47 --

In a footnote in Rappa, we pointed out that while “it
would be possible to predict the outcome in almost every case
simply by counting the votes of the Justices[,]” which would
“have the advantage of creating some predictability[,] . . . such
a system would be unprincipled” because it would not be
“rooted in any consistent constitutional values.” Id. at 1060
n.24. Importantly, these statements were mere dicta, and thus
lack binding force. See N. Jersey Media Group v. Ashcroft, 308
F.3d 198, 201 (3d Cir. 2002). Indeed, “we give such statements
respect consistent with their persuasive value and can, of course,
accord dicta as much weight as we deem appropriate.” Galli v.
N.J. Meadowlands Comm’n, 490 F.3d 265, 274 (3d Cir. 2007)
(internal citations and quotation marks omitted). While we do
not retreat from Rappa’s general admonition concerning the
potential problems with simple vote-counting, we do not find it
applicable to the circumstances Baze presents.
29
The plurality opinion is clearly “narrower” than Justice
Thomas’s concurrence in the judgment. Accordingly, we hold
that the plurality opinion in Baze controls Eighth Amendment
method-of-execution challenges.
B. The Grant of Summary Judgment
To survive summary judgment under Baze, the Plaintiffs
must point to record evidence from which a reasonable fact
finder could infer that Delaware’s protocol does not meet the
standards governing the constitutionality of an execution

-- 29 of 47 --

The Plaintiffs argue that the District Court erred by16
applying Baze’s “substantially similar” standard to this case.
That is, in their view the District Court impermissibly found
Delaware’s protocol constitutional simply because it was
substantially similar to Kentucky’s. We disagree that the
District Court did no more than apply that standard. But to the
extent it did, we do not believe that such an approach is
necessarily impermissible. We believe that in addition to
establishing the substantial risk standard, Baze also stands for
the proposition that Kentucky’s protocol, on its face, did not
present a substantial risk of serious harm. Therefore, any
protocol substantially similar to Kentucky’s protocol, without
more, would survive under the plurality standard. That
conclusion finds ample support in the case law. See, e.g.,
Harbison, 571 F.3d at 536 (Tennessee); Clemons, 585 F.3d at
1126-27 (Missouri); Wellons v. Hall, 554 F.3d 923, 942 (11th
Cir. 2009) (Georgia), abrogated on other grounds, Cone v. Bell,
129 S. Ct. 1769 (2009), as recognized in Owen v. Sec’y for
Dep’t of Corrs., 568 F.3d 894, 915 n.23 (11th Cir. 2009);
Emmett, 532 F.3d at 300 (Virginia); Bennett v. State, 990 So.2d
155, 160-61 (Miss. 2008).
The Plaintiffs also argue that whether a method of
execution presents the degree of risk described by Baze turns not
only on objective fact, but on whether state officials are
deliberately indifferent to that risk. They point out that Baze
drew heavily from the Supreme Court’s prior cases involving
30
protocol as articulated by Chief Justice Roberts in the plurality
opinion.16

-- 30 of 47 --

conditions of confinement and Eighth Amendment concerns. To
be sure, Baze’s “sure or very likely” and “sufficiently imminent”
language was taken from the Court’s decision in Helling v.
McKinney, 509 U.S. 25, 33-34 (1993), where the Court held that
an inmate could assert an Eighth Amendment claim based on the
health risk posed by exposure to second-hand smoke, and
explained that “a claim that the conditions of a prisoner’s
confinement violate the Eighth Amendment requires an inquiry
into the prison officials’ state of mind.” Id. at 32 (citation
omitted). Similarly, Baze’s “objectively intolerable risk of
harm” language comes from Farmer v. Brennan, 511 U.S. 825,
846 (1994), where the Court built on Helling by holding that “a
prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw
the inference.” Id. at 837.
While Baze captured some of the language in Helling and
Farmer, importantly, it did not import the “deliberate
indifference” language used in those cases. The fact that Baze
took such pains to extract certain language from Helling and
Farmer suggests that the other standards announced in those
cases do not govern Eighth Amendment method-of-execution
challenges. That distinction makes sense, as the Supreme
Court’s Eighth Amendment conditions-of-confinement cases
and method-of-execution cases have separate lineages in the
31

-- 31 of 47 --

Court’s jurisprudence. Cf. Taylor v. Crawford, 487 F.3d 1072,
1080-81 (8th Cir. 2007) (noting the difference between a
“conditions-of-confinement claim challenging prison conditions
in general,” where a state-of-mind inquiry is obligatory, and
cases involving “state-sanctioned punishment”). Furthermore,
even a cursory comparison of the different circumstances giving
rise to these two types of Eight Amendment challenges bears out
why subjective conditions-of-confinement standards do not
govern method-of-execution challenges. In Farmer, the Court
explained that “[w]hether a prison official had the requisite
knowledge of substantial risk is a question of fact subject to
demonstration in the usual ways, including . . . [by providing]
evidence . . . that the defendant-officials were at the time [the]
suit was filed, and are at the time of summary judgment,
knowingly and unreasonably disregarding an objectively
intolerable risk of harm, and that they will continue to do so[.]”
511 U.S. at 842, 846 (internal quotation marks and citation
omitted). The problem with applying such evidentiary standards
in method-of-execution cases is that, in cases where a lethal
injection protocol is facially constitutional, there can never be a
“current” violation in the way there may be, for example, in
cases where an inmate is suffering the harmful effects of
second-hand smoke or finds himself at risk of physical harm at
the hands of dangerous fellow inmates. In short, we see no
support for the Plaintiffs’ position that Baze requires the
wholesale engraftment of the evidentiary standards articulated
in the Supreme Court’s conditions-of-confinement cases onto
method-of-execution cases.
32

-- 32 of 47 --

In any event, to the extent the Plaintiffs maintain that
they were denied purportedly vital discovery into Delaware
officials’ state of mind, the record suggests otherwise. If the
Plaintiffs wanted to show Delaware officials’ deliberate
indifference to the risks associated with the state’s lethal
injection protocol, the Plaintiffs had only to ask those officials
if they were aware of those risks. Nothing in the record
intimates that the District Court cut off that line of questioning.
To the contrary, the record reflects that the District Court gave
the parties relatively wide latitude in crafting their discovery
inquiries. Thus, even assuming Helling’s and Farmer’s
subjective standards apply to method-of-execution cases, the
Plaintiffs have given us no principled explanation for their
failure to request the very information to which they now assert
an entitlement. In other words, the Plaintiffs cannot now
complain about discovery that they did not request in the District
Court proceedings and that the District Court, as far as the
record reveals, did not preclude them from requesting.
33
The parties do not dispute that Delaware’s protocol is in
all material respects identical to the protocol the Supreme Court
found constitutional in Baze. Indeed, when the District Court
asked the Plaintiffs to identify any differences between the two
protocols, the Plaintiffs acknowledged that they had “not
identified any substantive differences between the two protocols
as written.” (App. 329 (emphasis in original).) As they did

-- 33 of 47 --

34
before the District Court, the Plaintiffs argue on appeal that the
focus of judicial inquiry should be not on the two protocols’
written similarities but on extra-protocol elements that, in their
view, establish the substantial risk that was found wanting in
Baze. Those elements may be fairly divided into three classes:
(1) Delaware’s historical noncompliance with its former
protocol; (2) the current protocol’s lack of a backup plan; and
(3) the existence of an allegedly better, one-drug protocol that
has been implemented and used in Ohio. None of the evidence
the Plaintiffs have adduced helps them meet their burden under
Baze. We address each evidentiary proffer in turn.
1. Evidence of Historical Noncompliance
Evidence of Delaware’s noncompliance with its former
protocol exists because of an important distinction between that
protocol and the Kentucky protocol at issue in Baze. In Baze,
Kentucky had executed but one inmate since its adoption of
lethal injection. See 128 S. Ct. at 1528. Delaware, in contrast,
has executed thirteen inmates since 1992, albeit under a now-
defunct protocol. In the Plaintiffs’ view, Delaware’s allegedly
substandard performance in implementing that protocol creates
a genuine question of material fact as to whether Delaware,
going forward, will repeat the mistakes of the past.
The Plaintiffs spotlight, for instance, Delaware’s failure
on several occasions to administer the correct dosage of
potassium chloride. While it is uncontested that an inmate
would very likely suffer immeasurable pain if given an injection
of potassium chloride without being rendered unconscious by a
proper dosage of sodium thiopental, the record is bereft of

-- 34 of 47 --

As discussed in greater detail below, the delivery of17
sodium thiopental to one of the inmates whom Delaware has
executed took longer than planned. Importantly, however, there
is no suggestion in the record that the execution team proceeded
with the administration of pancuronium bromide or potassium
chloride before ensuring that the inmate was unconscious.
35
evidence that any of the thirteen inmates Delaware has executed
using the three-drug protocol was still conscious when injected
with potassium chloride. The importance of that evidentiary17
deficiency cannot be understated, since the constitutionality of
Kentucky’s protocol rested on the effective anesthetization of an
inmate, as both the plurality and the dissent in Baze recognized.
See 128 S. Ct. at 1533 (plurality opinion) (“Th[is] claim hinges
on the improper administration of the first drug, sodium
thiopental.”); id. at 1567 (Ginsburg, J., dissenting) (“The
constitutionality of Kentucky’s protocol . . . turns on whether
inmates are adequately anesthetized by the first drug in the
protocol, sodium thiopental.”). There is no evidence to support
the proposition, advanced by the Plaintiffs here, that
administering to a properly anesthetized inmate a lesser or
greater dosage of potassium chloride than called for in a lethal
injection protocol presents a substantial risk of serious harm.
Indeed, it is undisputed that, if an inmate is properly
anesthetized, no such risk can materialize. As a consequence,
the Plaintiffs cannot meet their summary judgment burden by
relying on examples of Delaware’s maladministration of
potassium chloride to an unconscious inmate.

-- 35 of 47 --

36
The Plaintiffs also place great weight on Delaware’s
execution of Brian Steckel in November 2005. During his
execution, Steckel’s primary IV line became infiltrated during
the administration of sodium thiopental. Steckel clearly was still
conscious when the IV team noticed the problem. After
unsuccessful attempts to repair the primary line, the IV team
rerouted the sodium thiopental to Steckel’s backup line, thereby
prolonging his execution. The Plaintiffs assert that the District
Court erroneously credited deposition testimony reflecting that
Steckel received the appropriate dosage of sodium thiopental
while discounting other evidence indicating that he had not
received the appropriate dosage of that drug. According to the
Plaintiffs, if “Steckel did not receive an adequate dose of
anesthesia, his execution was inhumane, which bears heavily on
the likelihood of future maladministration.” (Appellants’ Op.
Br. 41-42.)
As discussed above, the proper administration of sodium
thiopental is an indispensable link in the lethal injection chain
for Eighth Amendment purposes, as it ensures that an inmate
will not suffer under the effects of the second two drugs. See
Baze, 128 S. Ct. at 1527 (“The proper administration of the first
drug ensures that the prisoner does not experience any pain
associated with the paralysis and cardiac arrest caused by the
second and third drugs.” (record citations omitted)). Even
assuming that Steckel suffered great pain during his botched
execution, however, does not preclude summary judgment for
Delaware, as Baze left no room for doubt that a single instance
of mistake does not suffice to demonstrate a substantial risk of
serious harm. See id. at 1531 (“[A]n isolated mishap alone does
not give rise to an Eighth Amendment violation, precisely

-- 36 of 47 --

37
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.’” (citation omitted)); see also, e.g., Cooey
v. Strickland, No. 09-4474, 2009 U.S. App. LEXIS 26695, at
*31 (6th Cir. Dec. 7, 2009) (“Speculations, or even proof, of
medical negligence in the past or in the future are not sufficient
to render a facially constitutionally sound protocol
unconstitutional.”), reh’g and reh’g en banc denied, 2009 U.S.
App. LEXIS 26744 (6th Cir. Dec. 7, 2009), cert. denied and
application for stay of execution denied sub nom. Biros v.
Strickland, 175 L. Ed. 2d 580 (2009); Clemons v. Crawford, 585
F.3d 1119, 1127 (8th Cir. 2009) (“We reject the prisoners’
attempt to distinguish their case from Baze on the basis of
alleged past incompetence on the part of Missouri’s medical
personnel.”); Emmett v. Johnson, 532 F.3d 291, 307 (4th Cir.
2008) (“[H]aving reviewed the evidence regarding these [prior]
‘errors’ in the execution process, we believe that these isolated
incidents are insufficient to demonstrate a substantial risk of
future harm to Emmett necessary to establish an Eighth
Amendment violation.”); Schwab v. State, 995 So. 2d 922, 926-
28 (Fla. 2008) (per curiam) (rejecting an Eighth Amendment
challenge to Florida’s lethal injection procedure based in part on
examples of past mistakes). Similarly, Baze also made clear that
“the Constitution does not demand the avoidance of all risk of
pain in carrying out executions” because “[s]ome risk of pain is
inherent in any method of execution . . . if only from the
prospect of error in following the required procedure.” 128 S.
Ct. at 1529 (emphasis added). Clearly, any blunder committed
during Steckel’s execution does not suffice to show a substantial
risk of serious harm in future executions. Cf. Taylor v.
Crawford, 487 F.3d 1072, 1080 (8th Cir. 2007) (“If [a] protocol

-- 37 of 47 --

38
as written involves no inherent substantial risk of the wanton
infliction of pain, any risk that the procedure will not work as
designated in the protocol is merely a risk of accident, which is
insignificant in our constitutional analysis.” (emphasis added
and citation omitted)); Workman v. Bredesen, 486 F.3d 896, 908
(6th Cir. 2007) (“At some level, every execution procedure ever
used contains risk that the individual’s death will not be entirely
pain free.” (citations omitted)); Beardslee v. Woodford, 395 F.3d
1064, 1075 (9th Cir. 2005) (“Obviously, there are risks involved
in virtually every method of execution. However, the Supreme
Court has rejected Eighth Amendment challenges based on an
unforeseeable accident[.]” (internal quotation marks and
citations omitted)).
The other evidence of Delaware’s noncompliance with its
protocol is likewise unavailing. The Plaintiffs point to
Delaware’s failure to maintain written records of the executions;
to verify that the equipment used during the executions was in
good working order; to undergo the training exercises mandated
by the protocol; and to ensure that members of the IV team were
shown the portion of the protocol relevant to their
responsibilities. (App. 156-60, 169-71, 179.) The Plaintiffs
have made no effort, however, to demonstrate how any of these
deficiencies, standing either alone or together, poses a
substantial risk of serious harm. The Plaintiffs in essence ask us
to infer that inmates have experienced pain during previous
executions based on Delaware’s admittedly often casual
approach to the implementation of certain aspects of its former
protocol. That invitation must be declined, as we cannot, in this
posture, make inferences based on pure supposition. See
Acumed LLC v. Advanced Surgical Servs., 561 F.3d 199, 228

-- 38 of 47 --

39
(3d Cir. 2009) (“[S]peculation and conjecture may not defeat a
motion for summary judgment.” (citation omitted)). Of course,
we do not reject the likelihood that an improperly-trained
execution team would be more inclined to make a mistake than
a well-trained team. It is just as plausible that faulty equipment
could upset an otherwise smoothly-run execution. None of these
possibilities, however, even obliquely suggest the existence of
conditions that are “sure or very likely to cause serious illness
and needless suffering” or “give rise to sufficiently imminent
dangers.” Baze, 128 S. Ct. at 1531 (internal quotation marks,
emphasis and citation omitted).
At their core, the various instances of Delaware’s
noncompliance with its former protocol that the Plaintiffs have
presented to us in an effort to meet their summary judgment
burden are but a string of isolated examples of
maladministration. Significantly, Baze explicitly dismissed
similar efforts by the petitioners in that case: “The risks of
maladministration [the petitioners] have suggested – such as
improper mixing of chemicals and improper setting of IVs by
trained and experienced personnel – cannot remotely be
characterized as ‘objectively intolerable.’” 128 S. Ct. at 1537
(emphasis added). The Plaintiffs’ proffer in this vein is
materially indistinguishable from that of the Baze petitioners,
and thus does not help them meet their burden.
2. Lack of a Backup Plan
The Plaintiffs also maintain that Delaware’s protocol
violates the Eighth Amendment because it lacks what the
Plaintiffs refer to as a “Plan B.” (Appellants’ Op. Br. 48.)

-- 39 of 47 --

40
Specifically, they point to the deposition of Delaware’s expert
anesthesiologist, who testified that peripheral IV access would
be unobtainable in certain cases. That expert further testified
that Delaware’s protocol should include a contingency plan in
the event the backup IV line cannot be established after an
attempt at establishing the primary IV line fails. This argument
cannot surmount the wall erected by Baze for at least two
reasons. First, there is no evidence that the Kentucky protocol
examined in Baze had a contingency plan in place in the event
its written protocol could not be put into effect. The absence of
such a plan did not prevent seven Members of the Court from
giving that protocol a passing grade on the constitutional test.
Indeed, the Plaintiffs acknowledge as much in their brief. (See
Appellants’ Reply Br. 12 (“[T]he Supreme Court approved
Kentucky’s protocol, which does not have such a plan.”).)
Second, Baze dictates that the Plaintiffs show not only a
substantial risk of serious harm, but also that “the conditions
presenting the risk are sure or very likely to cause serious illness
and needless suffering, and give rise to sufficiently imminent
dangers.” 128 S. Ct. at 1530-31 (internal quotation marks and
citation omitted). The Plaintiffs’ evidence on this point is
practically nonexistent. They assert that they were denied the
ability to inquire about what Delaware will do if the backup IV
line cannot be established. But there is no indication in the
record that the District Court imposed such a limitation.
Instead, the District Court barred the Plaintiffs from asking
Delaware officials about their motives in adopting a new
protocol and their intent to follow it. Clearly, by speculating
about what those officials might do in what the record intimates
to be the very unlikely hypothetical scenario in which the
backup IV line cannot be established, the Plaintiffs have failed

-- 40 of 47 --

41
to show the degree of imminence Baze requires. Cf. Torretti v.
Main Line Hosps., Inc., 580 F.3d 168, 179 n.16 (3d Cir. 2009)
(“[S]peculation alone, without more, is insufficient to survive
summary judgment.”); Lexington Ins. Co. v. W. Pa. Hosp., 423
F.3d 318, 333 (3d Cir. 2005) (“Speculation does not create a
genuine issue of fact; instead, it creates a false issue, the
demolition of which is a primary goal of summary judgment.”
(quotation marks and citation omitted)). Accordingly, like the
Baze Court, we conclude that the absence of a backup plan in
Delaware’s protocol does not bear on our constitutional
calculation.
3. Existence of a One-Drug Protocol
In their supplemental filings, the Plaintiffs ascribe great
weight to Ohio’s recent substitution of a three-drug protocol
with a one-drug protocol. Ohio made the switch in November
2009 after experiencing what the Sixth Circuit has called
“serious and troubling difficulties in executing at least three
inmates [under the old protocol.]” Reynolds v. Strickland, 583
F.3d 956, 957 (6th Cir. 2009). The Plaintiffs’ interest in lethal
injection developments in Ohio is premised on their apparent
belief that evidence of Ohio’s missteps in the implementation of
its former protocol, and the consequences of those missteps for
that state’s inmates, proves that Delaware inmates will suffer a
similar fate. But the Plaintiffs again ignore Baze’s teaching that
risks of maladministration and mere mistakes do not suffice to
prevail on an Eighth Amendment challenge. We are no more
persuaded by the Plaintiffs’ related argument that Delaware’s
deliberate indifference is evidenced by its “on-going failure to
come to terms with this foreseeable event [i.e., a slip-up akin to

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In their supplemental filings, the Plaintiffs also assert,18
as they did in their initial brief, that a genuine factual dispute
exists by virtue of the Delaware protocol’s lack of a “Plan B.”
This time, however, they highlight a similar lack in Ohio’s old
protocol, which they claim resulted in more than two hours of
failed efforts to establish an IV line during the would-be
execution of an Ohio inmate. In their view, Delaware could at
any time go “off-protocol” in the event of a failure to establish
an IV line during an execution. That view is singularly
unconvincing. Delaware has a protocol firmly in place. There
is nothing in the record to support the proposition, and no
logical reason to assume, that Delaware will do anything other
than what its protocol requires and what it has represented on
the record it would do in the event of a failed administration of
sodium thiopental. There is perhaps always an ethereal risk that
a rogue execution team could deviate from a written protocol
and depart on a whimsical frolic, a possibility the Plaintiffs
appear to take as a given. There is no historical basis for such
42
the ones committed in Ohio under its former three-drug
protocol.]” (Appellants’ Supp. Br. 10.) That argument again
presumes that the “deliberate indifference” standards employed
in conditions-of-confinement cases also govern method-of-
execution cases, a presumption we have already determined to
be misguided. The Plaintiffs also appear to be operating under
the flawed impression that a state may be compelled to change
its lethal injection protocol simply because another state has
elected to do so. No relevant legal authority supports that
impression, which, in our view, runs wholly counter to well-
settled notions of federalism and state sovereignty. Cf. Baze,18

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an eventuality, however, as nothing in the record suggests that
Delaware officials have ever gone “off-protocol” during any of
the thirteen executions already carried out in that state. In any
event, such an occurrence is both grossly speculative and highly
improbable and thus does not imply the existence of conditions
that are “sure or very likely” to cause pain.
43
128 S. Ct. at 1531 (rejecting an approach that would “transform
courts into boards of inquiry charged with determining ‘best
practices’ for executions”); id. at 1527 n.1 (describing the
several states’ individual approaches to capital punishment).
In essence, the Plaintiffs claim that Delaware’s protocol
violates the Eighth Amendment because of the existence of a
purportedly better alternative: a one-drug protocol that would
eliminate the potential hazards sometimes occasioned by the
maladministration of sodium thiopental. The critical weakness
in that position is that it is remarkably similar, if not identical,
to the one advanced by the Baze petitioners and specifically
rejected by the Baze Court. See 128 S. Ct. at 1531 (noting that
“[s]uch an approach finds no support in our cases, would
embroil the courts in ongoing scientific controversies beyond
their expertise, and would substantially intrude on the role of
state legislatures in implementing their execution procedures”).
Baze explained that an inmate seeking to establish an Eighth
Amendment violation based on the existence of an alternative
must prove that the alternative is “feasible, readily implemented,
and in fact significantly reduce[s] a substantial risk of severe
pain.” Id. at 1532. The Plaintiffs have not carried that burden
because they have submitted no evidence on this point. Instead,

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44
they have merely directed our attention to another state that has
adopted the protocol the Plaintiffs wish to see implemented in
Delaware. Under Baze, that line of attack simply does not carry
the day. See id. at 1537 (“[A]n 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.”); see also, e.g., Cooey, 2009 U.S. App. LEXIS
26695, at *41 (rejecting an inmate’s “proposed amendment to
Ohio’s protocol [a]s eminently the kind of cost-benefit judgment
that courts are ill-suited to perform and that Baze discouraged”
(citing Baze, 128 S. Ct. at 1531)).
In sum, on this record we are compelled to conclude that
the Plaintiffs have failed to show that Delaware’s lethal
injection protocol violates the Eight Amendment under Baze.
Accordingly, we will affirm the District Court’s grant of
summary judgment for Delaware.
C. The District Court’s Stay
Delaware argues that the District Court erred when it kept
in place the stay of Jackson’s execution that it entered shortly
after these proceedings began. In essence, the District Court
granted a stay pending appeal, and appears to have done so sua
sponte, as there is no clue in the record that any party asked for
such relief. Because we will affirm the District Court’s grant of
summary judgment for Delaware, we will dissolve the District
Court’s stay and therefore have no occasion to reach the merits
of Delaware’s cross-appeal.

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45
We cannot leave this issue, however, without saying a
word about the District Court’s decision not to provide any
reasons for granting a stay pending appeal. In its order granting
summary judgment for Delaware, the District Court stated only
that “the stay entered on May 6, 2006, shall remain in effect
pending appeal.” (App. 59.) Under the circumstances presented
here, we are not hard-pressed to divine potential reasons for the
District Court’s decision to prolong the stay. The District Court
might have thought there was a reasonable likelihood that the
Plaintiffs would prevail on appeal. In light of that perceived
likelihood, the District Court might have considered the
possibility of irreparable harm to Jackson were he executed
under an unconstitutional protocol. Both of these reasons might
well be valid. But we are reluctant to rely purely on our own
speculation, no matter how logically appealing or supported by
a piecemeal gathering of elements in the record, in reviewing a
district court’s grant of a stay pending appeal, or any other relief
for that matter.
Explicit, on-the-record reasons for granting any relief,
including a stay pending appeal, not only facilitate, but are often
crucial to, effective appellate review. See Protective Comm. for
Indep. Stockholders of TMT Trailer Ferry v. Anderson, 390 U.S.
414, 434 (1968) (“It is essential . . . that a reviewing court have
some basis for distinguishing between well-reasoned
conclusions arrived at after a comprehensive consideration of all
relevant factors, and mere boiler-plate approval phrased in
appropriate language but unsupported by evaluation of the facts
or analysis of the law.”). Indeed, the omission of such reasons
makes our role as a reviewing court needlessly arduous, and
sometimes even practically impossible. See Sowell v. Butcher

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46
& Singer, Inc., 926 F.2d 289, 295 (3d Cir. 1991) (noting “the
difficulties posed by a district court’s ruling without
explanation”); see, e.g., Educ. Testing Servs. v. Katzman, 793
F.2d 533, 546 (3d Cir. 1986) (finding “meaningful appellate
review of the [district court’s] conclusions impossible without
. . . specific findings of fact”). Accordingly, we encourage
district courts in this circuit to state their reasons for granting
stays pending appeal so that we can clearly understand the
factual and legal predicates giving rise to such relief.
IV. CONCLUSION
The safeguards drafted into Delaware’s new lethal
injection protocol exceed those contained in the Kentucky
protocol that seven Justices in Baze found constitutionally firm,
and the Plaintiffs have failed to adduce evidence that the new
protocol otherwise offends the Eighth Amendment.
Accordingly, we will affirm the District Court’s grant of
summary judgment for Delaware and dissolve the District
Court’s stay. Our holding, of course, should in no way be
construed as license for Delaware to stay the worrisome course
it appears to have taken at times under its former protocol. As
Baze aptly noted, “[r]easonable people of good faith disagree on
the morality and efficacy of capital punishment[.]” 128 S. Ct.
at 1537. But whatever one’s personal feelings about the death
penalty, no reasonable person disputes that the execution of a
human being, no matter how heinous his or her crime, is a most
solemn and weighty matter. The record before us reflects an
occasional blitheness on Delaware’s part that, while perhaps not
unconstitutional, gives us great pause. We remind Delaware not
only of its constitutional obligation to ensure that the

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47
implementation of its new protocol does not run afoul of the
Eighth Amendment’s proscription of cruel and unusual
punishment, but also of its moral obligation to carry out
executions with the degree of seriousness and respect that the
state-administered termination of human life demands.

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