Cite as: 574 U. S. ____ (2015)
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` SOTOMAYOR, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
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` No. 14A761 (14-7955)
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` CHARLES F. WARNER, ET AL., v.
` KEVIN J. GROSS, ET AL.
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`ON APPLICATION FOR STAY
`[January 15, 2015]
`The application for stays of execution of sentences of
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`death presented to JUSTICE SOTOMAYOR and by her re-
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`ferred to the Court is denied.
`JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,
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`JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.
`Charles Warner is to be executed tonight. He and three
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`other Oklahoma death row inmates filed a petition for
`certiorari and an application for stays of their executions,
`contending that Oklahoma’s lethal injection protocol
`violates the Eighth Amendment. I believe that petitioners
`have made the showing necessary to obtain a stay, and
`dissent from the Court’s refusal to grant one.
`I
`Oklahoma had originally scheduled Warner’s execution
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`for April 29, 2014, immediately following its execution of
`Clayton Lockett. Both executions were to be carried out
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`with a three-drug protocol consisting of midazolam, vecu-
`ronium bromide, and potassium chloride. In theory, at
`least, midazolam should render a condemned inmate
`unconscious, vecuronium bromide should paralyze him,
`and potassium chloride should stop his heart.
`But the Lockett execution went poorly, to say the least.
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`Lockett awoke and writhed on the execution table for some
`time after the drugs had been injected and officials con-
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`WARNER v. GROSS
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` SOTOMAYOR, J., dissenting
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`firmed him to be unconscious. He was overheard to say,
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`“‘Something is wrong,’” and, “‘The drugs aren’t working.’”
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`App. C to Pet. for Cert. 6 (App.). Eventually, some 40
`minutes after the lethal injection drugs were adminis-
`tered, Lockett died.
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`The State stayed all pending executions while it investi-
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`gated what had gone wrong. Ultimately, the State issued
`a report that placed much of the blame on the execution
`team’s failure to insert properly an intravenous (IV) line,
`finding that a large quantity of the drugs that should have
`been introduced into Lockett’s blood stream had instead
`pooled in the tissue near the IV access point. An autopsy
`did determine, however, that the concentration of midazo-
`lam in Lockett’s blood was higher than necessary to ren-
`der an average person unconscious.
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`Soon thereafter, the State adopted a new execution
`protocol. The protocol contains a number of procedures
`designed to better ensure that execution team members
`are able to insert properly an IV line and assess the con-
`demned inmate’s consciousness. The protocol also pro-
`vides for four alternative drug combinations that can be
`used for lethal injections, one of which is the same midazo-
`lam/vecuronium bromide/potassium chloride combination
`that was used in the Lockett execution. Whereas the prior
`protocol called for the injection of only 100 milligrams of
`midazolam, the new protocol now calls for the injection of
`500 milligrams of that drug. The State has announced
`that it plans to use this particular drug combination in all
`upcoming executions.*
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`Warner, along with 20 other Oklahoma death-row in-
`mates, filed a 42 U. S. C. §1983 complaint against various
`state officials, contending that the State’s proposed use of
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`*The State has indicated that it intends to use rocuronium bromide
`in place of vecuronium bromide, but there does not appear to be any
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`dispute that there is no material difference between these two drugs.
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` Cite as: 574 U. S. ____ (2015)
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` SOTOMAYOR, J., dissenting
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`in executions would violate the Eighth
`midazolam
`Amendment. Four of the plaintiffs, including Warner,
`then requested a preliminary injunction to prevent the
`State from implementing the new protocol and executing
`them.
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`The District Court held a 3-day evidentiary hearing.
`Two expert witnesses for the plaintiffs testified that alt-
`hough midazolam could be used to render an individual
`unconscious, it was not and could not be relied on as an
`anesthetic because the patient could likely regain con-
`sciousness if exposed to noxious stimuli—such as the
`injection of potassium chloride. For that reason, the Food
`and Drug Administration (FDA) has not approved the
`drug for use as an anesthetic. As anesthesiologist Dr.
`Lubarsky detailed, midazolam is subject to a “‘ceiling
`effect’” such that, no matter the dosage, it reaches a point
`of saturation and has no more effect, and at this satura-
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`tion point the drug cannot keep someone unconscious.
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`App. C, at 43. According to these experts, this feature
`distinguishes midazolam—a benzodiazepine, like Valium
`or Xanax—from barbiturates such as pentobarbital or
`sodium thiopental, which are often used as the first drug
`in a three-drug lethal injection protocol. In response, the
`State called a doctor of pharmacy, Dr. Evans, who disput-
`ed these claims. Although Dr. Evans acknowledged that
`midazolam was not generally employed as an anesthetic,
`he contended that it would function as one if given in a
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`high enough (and ordinarily lethal) dose.
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`The District Court denied the plaintiffs’ motion for a
`preliminary injunction, concluding that they had demon-
`strated no likelihood of success on the merits of their
`claims. The District Court found that “[t]he proper admin-
`istration of 500 milligrams of midazolam . . . would make
`it a virtual certainty that any individual will be at a suffi-
`cient level of unconsciousness to resist the noxious stimuli
`which could occur from the application of the second and
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` WARNER v. GROSS
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` SOTOMAYOR, J., dissenting
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`third drugs.” Id., at 42. Based on that finding, the Dis-
`trict Court held that the plaintiffs had failed to establish
`that the protocol “presents a risk that is ‘sure or very
`likely to cause serious illness and needless suffering.’” Id.,
`at 65 (quoting Baze v. Rees, 553 U. S. 35, 50 (2008) (plural-
`ity opinion of ROBERTS, C. J.)). The District Court also
`concluded that there was a “separate reason” the plaintiffs
`had failed to establish a likelihood of success: They had
`not identified a “‘known and available alternative’” by
`which they could be executed, as the State had “affirma-
`tively shown that sodium thiopental and pentobarbital,
`the only alternatives to which the plaintiffs ha[d] alluded,
`are not available to the” State. App. C, at 66–67 (quoting
`Baze, 553 U. S., at 61).
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`The Tenth Circuit affirmed the District Court’s order
`denying a preliminary injunction. The court held that the
`District Court had been correct to require the plaintiffs to
`identify an available alternative means of execution, and
`found itself unable to conclude that the District Court’s
`factual findings regarding midazolam’s effectiveness had
`been clearly erroneous. 2015 WL 137627, *8–*9, *12 (Jan.
`12, 2015). The four plaintiffs, including Warner, peti-
`tioned for certiorari and filed an accompanying application
`for a stay of their executions.
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`II
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`To grant a stay, we must find a reasonable probability
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`that the Court would vote to grant certiorari, a significant
`possibility of reversal, and a likelihood of irreparable
`injury to the applicant in the absence of a stay. See Bare-
`foot v. Estelle, 463 U. S. 880, 895 (1983). Petitioners’
`application met these criteria.
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`First, the question whether the courts below properly
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`read Baze to require petitioners to identify other drugs
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`that the State might use to execute them warrants this
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`Court’s attention. The Baze plurality’s statement that a
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` SOTOMAYOR, J., dissenting
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`challenger must show that the risk of severe pain is “sub-
`stantial when compared to the known and available alter-
`natives,” 553 U. S., at 61, pertained to an Eighth Amend-
`ment claim that the procedures employed in a particular
`protocol were inferior to other procedures the State as-
`sertedly should have adopted, see id., at 51; see also id., at
`62 (“Petitioners agree that, if administered as intended,
`that procedure will result in a painless death”). The same
`requirement should not necessarily extend to a claim that
`the planned execution will be unconstitutionally painful
`even if performed correctly; it would be odd if the constitu-
`tionality of being burned alive, for example, turned on a
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`challenger’s ability to point to an available guillotine.
`Indeed, Baze did not purport to overrule or even address
`Hill v. McDonough, 547 U. S. 573, 582 (2006), which re-
`jected the argument that §1983 plaintiffs such as petition-
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`ers must plead an “alternative, authorized method of
`execution.”
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`Second, both lower courts alternatively held that the use
`of midazolam did not create a substantial risk of unneces-
`sary pain within the meaning of Baze. As for that holding,
`petitioners correctly point out that the decision in Baze
`was based on the understanding that the first drug in the
`three-drug cocktail—there, sodium thiopental—would
`work as intended. “It [was] uncontested that, failing a
`proper dose of sodium thiopental that would render the
`prisoner unconscious, there is a substantial, constitution-
`ally unacceptable risk of suffocation from the administra-
`tion of pancuronium bromide and pain from the injection
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`of potassium chloride.” 553 U. S., at 53 (plurality opinion).
`This issue is likewise uncontested here. If the first, anes-
`thetic drug does not work, then the second and third drugs
`will leave the inmate paralyzed, slowly dying in “excruci-
`ating pain.” Id., at 71 (Stevens, J., concurring in judg-
`ment).
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`Petitioners’ likelihood of success on the merits turns
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` WARNER v. GROSS
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` SOTOMAYOR, J., dissenting
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`primarily, then, on the contention that midazolam cannot
`be expected to maintain a condemned inmate in an uncon-
`scious state. I find the District Court’s conclusion that
`midazolam will in fact work as intended difficult to accept
`given recent experience with the use of this drug. Lockett
`was able to regain consciousness even after having re-
`ceived a dose of midazolam—confirmed by a blood test—
`supposedly sufficient to knock him out entirely. Likewise,
`in Arizona’s July 23, 2014, execution of Joseph Wood, the
`condemned inmate allegedly gasped for nearly two hours
`before dying, notwithstanding having been injected with
`the drug hydromorphone and 750 milligrams of midazo-
`lam—that is, 50% more of the drug than Oklahoma in-
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`tends to use. Moreover, since the District Court denied
`the request for a preliminary injunction in this case, Ohio
`announced that it would no longer employ a similar two-
`drug cocktail involving midazolam and hydromorphone,
`which it used in a January 2014 execution during which
`the condemned inmate reportedly gasped and snorted for
`more than 20 minutes. See Williams, Drug Switch May
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`Delay Executions in Ohio, N. Y. Times, Jan. 9, 2015, p.
`A15 (Washington, DC, ed.).
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`Although the State emphasizes that Florida continues to
`employ a lethal injection protocol that utilizes the same
`drug types and amounts as will now be employed in Okla-
`homa, its apparent success with that method is subject to
`question because the injection of the paralytic vecuronium
`bromide may mask the ineffectiveness of midazolam as an
`anesthetic: The inmate may be fully conscious but unable
`to move. See Baze, 553 U. S., at 71 (Stevens, J., concur-
`ring in judgment) (noting that the use of a paralytic
`“masks any outward sign of distress”). The deficiency of
`midazolam may generally be revealed only in an execu-
`tion, such as Lockett’s, where the IV fails to sufficiently
`deliver the paralyzing agent.
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`Moreover, there are numerous reasons to be skeptical of
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` Cite as: 574 U. S. ____ (2015)
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` SOTOMAYOR, J., dissenting
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` the evidence underlying the District Court’s conclusion.
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`As petitioners emphasize, a number of scientific studies
`support the conclusion that midazolam does, in fact, have
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`a ceiling effect, and in part for that reason has not been
`approved for use as an anesthetic by the FDA. In contend-
`ing that midazolam will work as the State intends, Dr.
`Evans cited no studies, but instead appeared to rely pri-
`marily on the Web site www.drugs.com. But see App. H,
`at 88 (Web site’s disclaimer that material provided is “not
`intended for medical advice, diagnosis or treatment”).
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`Furthermore, his opinion was premised on his belief that
`midazolam’s demonstrated “ceiling effect” was an effect
`specific to the spinal cord, and that there was no “ceiling
`effect” with respect to midazolam’s operation on the brain.
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`But petitioners—who were not given the opportunity to
`present rebuttal evidence in the District Court—submitted
`to the Court of Appeals an affidavit from Dr. Lubarsky
`that explained: “[T]he ceiling effect is scientifically proven
`as fact and does not occur at the spinal cord level, nor has
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`it been extensively studied there. Primary modes of anes-
`thetic action of midazolam occur in the brain (Perouansky,
`Pearce & Hemmings, 2015) where electrical activity . . . is
`not further diminished with larger doses.” App. F, at 1
`(emphasis deleted).
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`I am deeply troubled by this evidence suggesting that
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`midazolam cannot constitutionally be used as the first
`drug in a three-drug lethal injection protocol. It is true
`that we give deference to the district courts. But at some
`point we must question their findings of fact, unless we
`are to abdicate our role of ensuring that no clear error has
`been committed. We should review such findings with
`added care when what is at issue is the risk of the need-
`less infliction of severe pain. Here, given the evidence
`before the District Court, I struggle to see how its decision
`to credit the testimony of a single purported expert can be
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`supported given the substantial body of conflicting empiri-
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` SOTOMAYOR, J., dissenting
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`cal and anecdotal evidence.
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`I believe that we should have granted petitioners’ appli-
`cation for stay. The questions before us are especially
`important now, given States’ increasing reliance on new
`and scientifically untested methods of execution. Petition-
`ers have committed horrific crimes, and should be pun-
`ished. But the Eighth Amendment guarantees that no one
`should be subjected to an execution that causes searing,
`unnecessary pain before death. I hope that our failure to
`act today does not portend our unwillingness to consider
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`these questions.