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Cite as: 574 U. S. ____ (2015) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 14A761 (14-7955) 

CHARLES F. WARNER, ET AL., v.

 KEVIN J. GROSS, ET AL. 

ON APPLICATION FOR STAY 

[January 15, 2015] 

The application for stays of execution of sentences of 

death presented to JUSTICE SOTOMAYOR and by her referred to the Court is denied. 

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG, 

JUSTICE BREYER, and JUSTICE KAGAN join, dissenting. 

Charles Warner is to be executed tonight. He and three 

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 

for April 29, 2014, immediately following its execution of 

Clayton Lockett. Both executions were to be carried out 

with a three-drug protocol consisting of midazolam, vecuronium 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.

Lockett awoke and writhed on the execution table for some 

time after the drugs had been injected and officials con-
 

2 WARNER v. GROSS 

SOTOMAYOR, J., dissenting 

firmed him to be unconscious. He was overheard to say,

“‘Something is wrong,’” and, “‘The drugs aren’t working.’” 

App. C to Pet. for Cert. 6 (App.). Eventually, some 40

minutes after the lethal injection drugs were administered, Lockett died. 

The State stayed all pending executions while it investigated 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 midazolam in Lockett’s blood was higher than necessary to render an average person unconscious. 

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 condemned inmate’s consciousness. The protocol also provides for four alternative drug combinations that can be

used for lethal injections, one of which is the same midazolam/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.*

Warner, along with 20 other Oklahoma death-row inmates, filed a 42 U. S. C. §1983 complaint against various

state officials, contending that the State’s proposed use of 

—————— 

*The State has indicated that it intends to use rocuronium bromide 

in place of vecuronium bromide, but there does not appear to be any

dispute that there is no material difference between these two drugs. 
 

 

Cite as: 574 U. S. ____ (2015) 3 

SOTOMAYOR, J., dissenting 

midazolam in executions would violate the Eighth

Amendment. Four of the plaintiffs, including Warner, 

then requested a preliminary injunction to prevent the 

State from implementing the new protocol and executing 

them. 

The District Court held a 3-day evidentiary hearing.

Two expert witnesses for the plaintiffs testified that although 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 consciousness 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 saturation point the drug cannot keep someone unconscious. 

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 disputed 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 

high enough (and ordinarily lethal) dose.

The District Court denied the plaintiffs’ motion for a 

preliminary injunction, concluding that they had demonstrated no likelihood of success on the merits of their 

claims. The District Court found that “[t]he proper administration of 500 milligrams of midazolam . . . would make 

it a virtual certainty that any individual will be at a sufficient level of unconsciousness to resist the noxious stimuli 

which could occur from the application of the second and 
 

4 WARNER v. GROSS 

SOTOMAYOR, J., dissenting 

third drugs.” Id., at 42. Based on that finding, the District 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) (plurality 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 “affirmatively 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).

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, petitioned for certiorari and filed an accompanying application 

for a stay of their executions. 

II 

To grant a stay, we must find a reasonable probability 

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 Barefoot v. Estelle, 463 U. S. 880, 895 (1983). Petitioners’ 

application met these criteria.

First, the question whether the courts below properly

read Baze to require petitioners to identify other drugs 

that the State might use to execute them warrants this

Court’s attention. The Baze plurality’s statement that a 
 

Cite as: 574 U. S. ____ (2015) 5 

SOTOMAYOR, J., dissenting 

challenger must show that the risk of severe pain is “substantial when compared to the known and available alternatives,” 553 U. S., at 61, pertained to an Eighth Amendment claim that the procedures employed in a particular 

protocol were inferior to other procedures the State assertedly 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 constitutionality of being burned alive, for example, turned on a

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 rejected the argument that §1983 plaintiffs such as petitioners must plead an “alternative, authorized method of

execution.” 

Second, both lower courts alternatively held that the use 

of midazolam did not create a substantial risk of unnecessary 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, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection

of potassium chloride.” 553 U. S., at 53 (plurality opinion).

This issue is likewise uncontested here. If the first, anesthetic drug does not work, then the second and third drugs

will leave the inmate paralyzed, slowly dying in “excruciating pain.” Id., at 71 (Stevens, J., concurring in judgment).

Petitioners’ likelihood of success on the merits turns 
 

6 WARNER v. GROSS 

SOTOMAYOR, J., dissenting 

primarily, then, on the contention that midazolam cannot

be expected to maintain a condemned inmate in an unconscious 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 received 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 midazolam—that is, 50% more of the drug than Oklahoma intends 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 twodrug 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 

Delay Executions in Ohio, N. Y. Times, Jan. 9, 2015, p. 

A15 (Washington, DC, ed.). 

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 Oklahoma, 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., concurring 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 execution, such as Lockett’s, where the IV fails to sufficiently

deliver the paralyzing agent. 

Moreover, there are numerous reasons to be skeptical of 
 

 

Cite as: 574 U. S. ____ (2015) 7 

SOTOMAYOR, J., dissenting 

the evidence underlying the District Court’s conclusion. 

As petitioners emphasize, a number of scientific studies 

support the conclusion that midazolam does, in fact, have

a ceiling effect, and in part for that reason has not been 

approved for use as an anesthetic by the FDA. In contending that midazolam will work as the State intends, Dr. 

Evans cited no studies, but instead appeared to rely primarily 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”).

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.

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

it been extensively studied there. Primary modes of anesthetic 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).

I am deeply troubled by this evidence suggesting that 

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 needless 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

supported given the substantial body of conflicting empiri-
 

8 WARNER v. GROSS 

SOTOMAYOR, J., dissenting 

cal and anecdotal evidence. 

I believe that we should have granted petitioners’ application for stay. The questions before us are especially 

important now, given States’ increasing reliance on new 

and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. 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 

these questions.