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` Cite as: 592 U. S. ____ (2020)
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`Statement of SOTOMAYOR, J.
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`SUPREME COURT OF THE UNITED STATES
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` WARREN K. HENNESS v. MIKE DEWINE, ET AL.
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
`No. 20–5243. Decided October 5, 2020
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`The petition for a writ of certiorari is denied.
` Statement of JUSTICE SOTOMAYOR respecting the denial
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`of certiorari.
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`The State of Ohio plans to execute petitioner using a
`three-drug protocol of midazolam, a paralytic agent, and po-
`tassium chloride. Petitioner challenges this method of exe-
`cution as unconstitutional, partly on the ground that mid-
`azolam is very likely to induce sensations of suffocation and
`drowning, terror, and panic (akin to that produced by wa-
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`terboarding). After holding a 4-day evidentiary hearing in
`which it considered the testimony of 18 witnesses, the Dis-
`trict Court agreed, noting that the scientific case against
`midazolam had grown “much stronger” over the past few
`years. App. to Pet. for Cert. 159a. The District Court ulti-
`mately rejected petitioner’s challenge, however, concluding
`that petitioner had failed to identify a feasible and readily
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`implemented alternative method of execution, a showing
`that this Court has required since its decision in Glossip v.
`Gross, 576 U. S. 863 (2015).
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`The Sixth Circuit affirmed the District Court’s separate
`holding that petitioner had failed to identify an appropriate
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`alternative method of execution. But, parting ways with
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`the District Court, the Sixth Circuit concluded that, even if
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`petitioner is made to feel as if he is drowning as he dies,
`Ohio’s midazolam-based protocol would not cause peti-
`tioner unconstitutionally severe pain. I write to address the
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`Sixth Circuit’s novel and unsupported conclusion that pain
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`is constitutionally tolerable so long as it is no worse than
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` HENNESS v. DEWINE
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`Statement of SOTOMAYOR, J.
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` the suffering caused by a botched hanging.1
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`The Sixth Circuit began its reasoning from the premise
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`that pain, to be constitutionally cognizable, must reach a
`certain level of severity. Severe enough for constitutional
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`recognition, in the court’s view, would be the pain caused
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`by “breaking on the wheel, flaying alive, [and] rending
`asunder with horses.” In re Ohio Execution Protocol Litig.,
`946 F. 3d 287, 290 (2019) (quoting Bucklew v. Precythe, 587
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`U. S. ___, ___ (2019) (slip op., at 10); alteration omitted).
`Not severe enough, in contrast, would be the pain caused by
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`a botched hanging in which the prisoner “‘slowly’” died of
`“suffocation” over the course of “several minutes,” instead
`of dying instantly as a result of the sudden drop. 946 F. 3d,
`at 290 (quoting Bucklew, 587 U. S., at ___ (slip op., at 11)).
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`——————
` 1Elsewhere I have written about the mounting evidence that
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`midazolam-based protocols may cause a prisoner to feel as though he is
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`suffocating to death, an excruciating process that could last as long as 18
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` minutes, and about the troubling failure of courts of appeals to defer to
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`district courts’ well-supported findings as to the risk of such pain. See
`Irick v. Tennessee, 585 U. S. ___, ___ (2018) (SOTOMAYOR, J., dissenting
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`from denial of application for stay) (slip op., at 1); Otte v. Morgan, 582
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`U. S. ___, ___–___ (2017) (SOTOMAYOR, J., dissenting from denial of appli-
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` cation for stay and denial of certiorari) (slip op., at 1–2); Arthur v. Dunn,
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` 580 U. S. ___, ___–___ (2017) (SOTOMAYOR, J., dissenting from denial of
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` certiorari) (slip op., at 15–17). I have also separately written about this
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`Court’s “perverse requirement that inmates offer alternative methods for
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`their own executions” and addressed the serious barriers inmates face in
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` so doing. McGehee v. Hutchinson, 581 U. S. ___, ___ (2017) (SOTOMAYOR,
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`J., dissenting from denial of application for stay and denial of certiorari)
`(slip op., at 2); see Zagorski v. Parker, 586 U. S. ___, ___–___ (2018)
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`(same) (slip op., at 4–6); Glossip v. Gross, 576 U. S. 863, 969–978 (2015)
`(SOTOMAYOR, J., dissenting). The Sixth Circuit’s opinion reflected many
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` of these problems. And as I write here, the court erred in enshrining
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`hanging as a categorical measure of constitutionally tolerable suffering.
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` Because the Sixth Circuit’s separate analysis that petitioner had failed
`to identify a “feasible and readily implemented alternative method of ex-
`ecution” is not clearly wrong under this Court’s recent precedent, Buck-
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`lew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 13), however, I con-
`cur in the denial of certiorari.
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` Cite as: 592 U. S. ____ (2020)
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`Statement of SOTOMAYOR, J.
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`Even assuming, then, that Ohio’s three-drug protocol will
`cause petitioner to feel a sensation of “drowning and suffo-
`cation” as he dies, the court concluded that such pain is con-
`stitutionally acceptable because it looks “a lot like the risks
`of pain associated with hanging.” 946 F. 3d, at 290. The
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`Sixth Circuit thus appears to have created a categorical
`rule that a method of execution passes constitutional mus-
`ter so long as it poses no greater risk of pain than the slow
`suffocation of a hanging gone wrong.2 See Campbell v.
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`Wood, 511 U. S. 1119, 1122 (1994) (Blackmun, J., dissent-
`ing from denial of certiorari) (describing the experience of
`“[a] person who slowly asphyxiates or strangulates while
`twisting at the end of a rope” during a botched hanging).
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`The Sixth Circuit erred in enshrining hanging as a per-
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`manent measure of constitutionally tolerable suffering. Its
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`decision conflicts with this Court’s recent precedent, which
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`makes clear that the proper inquiry is comparative, not cat-
`egorical. See Bucklew, 587 U. S., at ___ (slip op., at 13);
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`Glossip, 576 U. S., at 878. Since Glossip, this Court has
`held that a risk of pain raises constitutional problems if it
`is “‘substantial when compared to a known and available
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`alternative’” that is “feasible and readily implemented.”
`Bucklew, 587 U. S., at ___ (slip op., at 13). If such an alter-
`native exists, and a State nonetheless refuses to adopt it
`without a legitimate penological reason, then the State’s
`chosen method “cruelly” (and unconstitutionally) “super-
`adds pain to [a] death sentence.” Ibid.
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`Although the Sixth Circuit cited Bucklew in support of its
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`2Even on the Sixth Circuit’s own terms, it is not at all clear that mid-
`azolam’s risk of pain is no worse than that of a botched hanging. The
`Sixth Circuit and this Court have described such a hanging as involving
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`“several minutes” of suffocation. 946 F. 3d, at 290 (quoting Bucklew, 587
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`U. S., at ___ (slip op., at 11)). By contrast, midazolam poses a risk that
`a condemned inmate will “experience sensations of drowning, suffocat-
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`ing, and being burned alive from the inside out,” for at least 10 and as
`many as 18 minutes. Irick, 585 U. S., at ___ (SOTOMAYOR, J., dissenting
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`from denial of application for stay) (slip op., at 1).
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` HENNESS v. DEWINE
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`Statement of SOTOMAYOR, J.
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` novel standard, nowhere did this Court suggest that the
`pain caused by a faulty hanging creates a constitutional
`floor for “cruel and unusual” punishment under the Eighth
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`Amendment. Applying its comparative standard, Bucklew
`merely noted that a traditional method of execution like
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`hanging is not “necessarily rendered unconstitutional as
`soon as an arguably more humane method . . . becomes
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`available.” Id., at ___–___ (slip op., at 13–14) (emphasis
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`added). But that is only because a State could have a legit-
`imate reason for not immediately adopting the more hu-
`mane method. Bucklew does not provide a categorical safe
`harbor for methods of execution that, in a court’s estima-
`tion, will cause no greater suffering than that caused by cer-
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`tain traditional methods. See ibid. If there were a feasible
`and readily implemented method of execution that would
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`prevent petitioner from experiencing a sensation akin to
`drowning as he dies, it would be cruel and unusual for Ohio
`to refuse to adopt it.
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