Cite as: 580 U. S. ____ (2017) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

THOMAS D. ARTHUR v. JEFFERSON S. DUNN, 

COMMISSIONER, ALABAMA DEPARTMENT 

OF CORRECTIONS, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
 

No. 16–602. Decided February 21, 2017
 

The motion of Certain Medical Professionals and Medical Ethicists for leave to file a brief as amici curiae is 

granted. The petition for a writ of certiorari is denied.

 JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,

dissenting from the denial of certiorari.

Nearly two years ago in Glossip v. Gross, 576 U. S. ___ 

(2015), the Court issued a macabre challenge. In order to 

successfully attack a State’s method of execution as cruel 

and unusual under the Eighth Amendment, a condemned 

prisoner must not only prove that the State’s chosen 

method risks severe pain, but must also propose a “known 

and available” alternative method for his own execution. 

Id., at ___, ___ (slip op., at 13, 15). 

Petitioner Thomas Arthur, a prisoner on Alabama’s

death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection

protocol will result in intolerable and needless agony, and 

he has proposed an alternative—death by firing squad. 

The Court of Appeals, without considering any of the

evidence regarding the risk posed by the current protocol, 

denied Arthur’s claim because Alabama law does not 

expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip. 

Because this decision permits States to immunize their

methods of execution—no matter how cruel or how unusual—from judicial review and thus permits state law to

subvert the Federal Constitution, I would grant certiorari 
 

 

2 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

and reverse. I dissent from my colleagues’ decision not to 

do so. 

I 

A 

Execution by lethal injection is generally accomplished 

through serial administration of three drugs. First, a fastacting sedative such as sodium thiopental induces “a deep,

comalike unconsciousness.” Baze v. Rees, 553 U. S. 35, 44 

(2008) (plurality opinion). Second, a paralytic agent—

most often pancuronium bromide—“inhibits all muscularskeletal movements and, by paralyzing the diaphragm, 

stops respiration.” Ibid. Third, potassium chloride induces fatal cardiac arrest. Ibid. 

The first drug is critical; without it, the prisoner faces 

the unadulterated agony of the second and third drugs.

The second drug causes “an extremely painful sensation of 

crushing and suffocation,” see Denno, When Legislatures 

Delegate Death: The Troubling Paradox Behind State 

Uses of Electrocution and Lethal Injection and What It 

Says About Us, 63 Ohio St. L. J. 63, 109, n. 321 (2002); but 

paralyzes the prisoner so as to “mas[k] any outward sign

of distress,” thus serving States’ interest “‘in preserving

the dignity of the procedure,’” Baze, 553 U. S., at 71, 73 

(Stevens, J., concurring in judgment). And the third drug 

causes an “excruciating burning sensation” that is 

“equivalent to the sensation of a hot poker being inserted 

into the arm” and traveling “with the chemical up the 

prisoner’s arm and . . . across his chest until it reaches his

heart.” Denno, supra, at 109, n. 321. 

Execution absent an adequate sedative thus produces a 

nightmarish death: The condemned prisoner is conscious

but entirely paralyzed, unable to move or scream his 

agony, as he suffers “what may well be the chemical 

equivalent of being burned at the stake.” Glossip, 576 

U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 2). 
 

 

 

Cite as: 580 U. S. ____ (2017) 3 

SOTOMAYOR, J., dissenting 

B 

For many years, the barbiturate sodium thiopental

seemed up to this task.1 In 2009, however, the sole American manufacturer of sodium thiopental suspended domestic production and later left the market altogether. Id., at 

___–___ (majority opinion) (slip op., at 4–5). States then 

began to use another barbiturate, pentobarbital. Id., at 

___ (slip op., at 5). But in 2013, it also became unavailable. Id., at ___–___ (slip op., at 5–6). Only then did States

turn to midazolam, the drug at the center of this case. 

Midazolam, like Valium and Xanax, belongs to a class of 

medicines known as benzodiazepines and has some anesthetic effect. Id., at ___ (SOTOMAYOR, J., dissenting) (slip 

op., at 5). Generally, anesthetics can cause a level of 

sedation and depression of electrical brain activity sufficient to block all sensation, including pain. App. to Pet. 

for Cert. 283a–290a. But it is not clear that midazolam 

adequately serves this purpose. This is because midazolam, unlike barbiturates such as pentobarbital, has no 

analgesic—pain-relieving—effects. Id., at 307a; see also 

Glossip, 576 U. S., at ___ (SOTOMAYOR, J., dissenting) (slip 

op., at 5). Thus, “for midazolam to maintain unconsciousness through application of a particular stimulus, it would

need to depress electrical activity to a deeper level than 

would be required of, for example, pentobarbital.” App. to 

—————— 

1We examined the constitutionality of lethal injection in Baze v. Rees, 

553 U. S. 35 (2008). There, the parties did not dispute that “proper

administration of . . . sodium thiopental . . . eliminates any meaningful

risk that a prisoner would experience pain” and results in a humane 

death. Id., at 49 (plurality opinion). The petitioners nonetheless 

challenged Kentucky’s three-drug protocol on the ground that, if prison 

executioners failed to follow the mandated procedures, an unconstitutional risk of significant pain would result. Ibid. A plurality of the 

Court concluded that “petitioners ha[d] not carried their burden of

showing that the risk of pain from maladministration of a concededly 

humane lethal injection protocol” would violate the prohibition on cruel

and unusual punishments. Id., at 41. 
 

 

 

4 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

Pet. for Cert. 307a.2 Although it can be used to render 

individuals unconscious, midazolam is not used on its own 

to maintain anesthesia—complete obliviousness to physical sensation—in surgical procedures, and indeed, the 

Food and Drug Administration has not approved the drug

for this purpose. Glossip, 576 U. S., at ___ (SOTOMAYOR, 

J., dissenting) (slip op., at 5).

Like the experts in Glossip, the experts in this case

agree that midazolam is subject to a ceiling effect, which

means that there is a point at which increasing the dose of 

the drug does not result in any greater effect. Ibid. The 

main dispute with respect to midazolam relates to how 

this ceiling effect operates—if the ceiling on midazolam’s

sedative effect is reached before complete unconsciousness

can be achieved, it may be incapable of keeping individuals insensate to the extreme pain and discomfort associated

with administration of the second and third drugs in

lethal-injection protocols. Ibid. 

After the horrific execution of Clayton Lockett, who,

notwithstanding administration of midazolam, awoke 

during his execution and appeared to be in great pain, we

agreed to hear the case of death row inmates seeking to

avoid the same fate. In Glossip, these inmates alleged 

that because midazolam is incapable of rendering prisoners unconscious and insensate to pain during lethal injection, Oklahoma’s intended use of the drug in their execu-

—————— 

2 Because “midazolam is not an analgesic drug, any painful stimulus 

applied to an inmate will generate and transmit full intensity pain 

signals to the brain without interference.” App. to Pet. for Cert. 309a. 

Arthur’s expert witness provides “a rough analogy”: 

“[ I ]f being sedated is like being asleep, analgesia is like wearing 

earplugs. If two people are sleeping equally deeply, but only one is 

wearing earplugs, it will be much easier to shout and wake the person 

who is not wearing earplugs. If two people are sedated to equivalent 

levels of electrical brain activity, but only one has analgesia, the person

sedated without analgesia will be much more easily aroused to consciousness by the application of pain.” Ibid. 
Cite as: 580 U. S. ____ (2017) 5 

SOTOMAYOR, J., dissenting 

tions would violate the Eighth Amendment. The Court 

rejected this claim for two reasons. 

First, the Court found that the District Court had not 

clearly erred in determining that “midazolam is highly

likely to render a person unable to feel pain during an

execution.” Id., at ___ (slip op., at 16). Second, the Court 

held that the petitioners had failed to satisfy the novel 

requirement of pleading and proving a “known and available alternative” method of execution. Id., at ___ (slip op., 

at 15).

Post-Glossip, in order to prevail in an Eighth Amendment challenge to a State’s method of execution, prisoners 

first must prove the State’s current method “entails a 

substantial risk of severe pain,” id., at ___ (slip op., at 2), 

and second, must “identify a known and available alternative method of execution that entails a lesser risk of pain,” 

id., at ___ (slip op., at 1). 

II 

This case centers on whether Thomas Arthur has met 

these requirements with respect to Alabama’s lethalinjection protocol. 

A 

Alabama adopted lethal injection as its default method 

of execution in 2002. Ala. Code §15–18–82.1(a) (2011); see 

also Ex parte Borden, 60 So. 3d 940, 941 (Ala. 2007). The 

State’s capital punishment statute delegates the task of 

prescribing the drugs necessary to compound a lethal 

injection to the Department of Corrections. §15–18–

82.1(f). Consistent with the practice in other States following the national shortage of sodium thiopental and 

pentobarbital, the department has adopted a protocol 

involving the same three drugs considered in Glossip. See 

Brooks v. Warden, 810 F. 3d 812, 823 (CA11 2016). 

Perhaps anticipating constitutional challenges, Ala-
 

 

 

6 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

bama’s legislature enacted a contingency plan: The statute

provides that “[i]f electrocution or lethal injection is held

to be unconstitutional . . . all persons sentenced to death 

for a capital crime shall be executed by any constitutional 

method of execution.” §15–18–82.1(c). 

B 

Thomas Douglas Arthur killed his paramour’s husband 

in 1982. 840 F. 3d 1268, 1272–1273 (CA11 2016). Over 

the next decade, two juries found Arthur guilty of murder,

and each time, Arthur’s conviction was overturned on 

appeal. Ibid. After a third trial in 1992, Arthur was 

convicted and sentenced to death. Ibid. Since then, Arthur has been scheduled to die on six separate occasions, 

and each time, his execution was stayed. Id., at 1275, n. 2. 

After 34 years of legal challenges, Arthur has accepted

that he will die for his crimes. He now challenges only 

how the State will be permitted to kill him.

Arthur asserted two distinct claims in the District 

Court. First, Arthur asserted a facial challenge, arguing 

that midazolam is generally incapable of performing as 

intended during Alabama’s three-drug lethal-injection

procedure. Second, Arthur asserted an as-applied challenge, arguing that because of his individual health attributes, midazolam creates a substantial risk of severe 

pain for him during the procedure.

The District Court considered these two claims separately. With respect to the facial challenge, the District

Court ordered bifurcated proceedings, with the first hearing limited to the availability of a feasible alternative

method of execution. App. to Pet. for Cert. 189a, and n. 2. 

Arthur’s initial complaint proposed a single dose either of 

pentobarbital or sodium thiopental rather than a threedrug protocol, but the District Court found that those 

methods were unavailable given the elimination of both 

drugs from the domestic market. Id., at 203a–205a. 
 

Cite as: 580 U. S. ____ (2017) 7 

SOTOMAYOR, J., dissenting 

Arthur then moved to amend his complaint to allege the 

firing squad as an alternative method of execution. The 

District Court denied the motion, holding that “execution 

by firing squad is not permitted by statute and, therefore,

is not a method of execution that could be considered 

either feasible or readily implemented by Alabama at this

time.” Id., at 241a. Because Arthur’s claim failed on this 

ground, the court never considered Arthur’s evidence with

respect to midazolam, despite later observing that it was

“impressive.” Id., at 166a. 

In a separate order, the District Court considered Arthur’s as-applied challenge. Arthur alleged, based on the

expert opinion of Dr. Jack Strader, that “his cardiovascular issues, combined with his age and emotional makeup, 

create a constitutionally unacceptable risk of pain that

will result in a violation of the Eighth Amendment if he is

executed under the [midazolam] protocol.” Id., at 151a. 

Echoing its rationale with respect to Arthur’s facial challenge, the District Court found that Arthur failed to prove 

the existence of a feasible, readily available alternative. 

The court then turned to the question it had avoided in 

the facial challenge: whether Alabama’s lethal-injection 

protocol created a risk of serious illness or needless suffering. But because the District Court considered the question as part of Arthur’s as-applied challenge, it focused on

the protocol as applied to Arthur’s personal physical condition. The court rejected Dr. Strader’s opinion that the 

dose of midazolam required by Alabama’s protocol “will 

likely induce a rapid and dangerous reduction in blood 

pressure more quickly than it results in sedation,” and

that during this time gap, Arthur—whom he believed to 

suffer from heart disease—would suffer a painful heart

attack. Id., at 169a. Because Dr. Strader’s experience was

limited to clinical doses of midazolam, which typically

range from 2 to 5 mg, the court concluded that he had no

basis to extrapolate his experience to non-clinical, lethal 
 

8 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

doses, such as the 500-mg bolus required by Alabama’s 

lethal-injection protocol. Id., at 177a. 

The District Court expressly refused to consider the

expert opinions that Arthur proffered as part of his facial 

challenge, noting that they “are untested in court, due to 

Arthur’s inability to provide a[n alternative] remedy in his

facial, and now as-applied, challenges.” Id., at 167a, n. 16. 

The District Court therefore concluded that Arthur 

failed to meet the Glossip standard and entered judgment 

in favor of the State. App. to Pet. for Cert. 238a. 

C 

The Eleventh Circuit affirmed. In a 111-page slip opinion issued the day before Arthur’s scheduled execution,

the court first found that “Arthur never showed Alabama’s 

current lethal injection protocol, per se or as applied to 

him, violates the Constitution.” 840 F. 3d, at 1315. The 

court based this finding on Arthur’s failure to “satisfy the 

first [Glossip] prong as to midazolam” as part of his asapplied challenge, ibid., and the fact that this Court “upheld the midazolam-based execution protocol” in Glossip, 

840 F. 3d, at 1315. Like the District Court, the Eleventh 

Circuit never considered the evidence Arthur introduced in 

support of his facial challenge to the protocol. Then, “[a]s 

an alternative and independent ground,” ibid., the Court 

of Appeals found that the firing squad is not an available

alternative because that method is “beyond [the Department of Corrections’] statutory authority,” id., at 1320. 

Finally, and as yet another independent ground for denying relief, the court held Arthur’s motion regarding the 

firing squad barred by the doctrine of laches. Ibid., n. 35. 

According to the Eleventh Circuit, the “known and available” alternative requirement was made clear in Baze— 

not Glossip—and because Arthur failed to amend his 

complaint in 2008 when Baze was decided, his claim was 

barred by laches. 
Cite as: 580 U. S. ____ (2017) 9 

SOTOMAYOR, J., dissenting 

On the day of his scheduled execution, Arthur filed a

petition for certiorari and an application to stay his execution. The Court granted the stay, 580 U. S. ___ (2016), but 

now denies certiorari. 

III
 

A 

The decision below permits a State, by statute, to bar a

death-row inmate from vindicating a right guaranteed by 

the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is

a feasible alternative, all a State has to do to execute him 

through an unconstitutional method is to pass a statute 

declining to authorize any alternative method. This cannot be right.

To begin with, it contradicts the very decisions it purports to follow—Baze and Glossip. Glossip based its 

“known and available alternative” requirement on the 

plurality opinion in Baze. Baze, in turn, states that “[t]o 

qualify, the alternative procedure must be feasible, readily 

implemented, and in fact significantly reduce a substantial risk of severe pain.” 553 U. S., at 52 (plurality opinion). The Court did not mention—or even imply—that a

State must authorize the alternative by statute. To the 

contrary, Baze held that “[i]f a State refuses to adopt such 

an alternative in the face of these documented advantages,” its “refusal to change its method can be viewed 

as ‘cruel and unusual’ under the Eighth Amendment.” 

Ibid. (emphasis added). The decision below turns this 

language on its head, holding that if the State refuses to 

adopt the alternative legislatively, the inquiry ends. That 

is an alarming misreading of Baze. 

Even more troubling, by conditioning federal constitutional rights on the operation of state statutes, the decision below contravenes basic constitutional principles. 
 

 

 

10 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

The Constitution is the “supreme law of the land”—

irrespective of contrary state laws. Art. VI, cl. 2. And for 

more than two centuries it has been axiomatic that this 

Court—not state courts or legislatures—is the final arbiter 

of the Federal Constitution. See Marbury v. Madison, 1 

Cranch 137, 177 (1803). Acting within our exclusive 

“province and duty” to “say what the law is,” ibid., we 

have interpreted the Eighth Amendment to entitle prisoners to relief when they succeed in proving that a State’s

chosen method of execution poses a substantial risk of 

severe pain and that a constitutional alternative is

“known and available,” Glossip, 576 U. S., at ___–___ (slip 

op., at 1–2). The States have no power to override this

constitutional guarantee. While States are free to define 

and punish crimes, “state laws respecting crimes, punishments, and criminal procedure are . . . subject to the overriding provisions of the United States Constitution.” 

Payne v. Tennessee, 501 U. S. 808, 824 (1991). 

Equally untenable are the differing interpretations of 

the Eighth Amendment that would result from the Eleventh Circuit’s rule. Under the Eleventh Circuit’s view, 

whether an inmate who will die in an intolerably cruel

manner can obtain relief under Glossip depends not on the 

Constitution but on vagaries of state law. The outcome of 

this case, for instance, would turn on whether Arthur had 

been sentenced in Oklahoma, where state law expressly 

permits the firing squad, see Okla. Stat., Tit. 22, §1014 

(Supp. 2016), rather than in Alabama, which—according 

to the Eleventh Circuit3—does not, see Ala. Code §15–18– 

—————— 

3 I question the Eleventh Circuit’s conclusion that the statute does

not authorize the firing squad as an available means of execution. In 

my view, the Alabama statute unambiguously reads as a codification of 

Glossip. If either of the specified methods—lethal injection or electrocution—is declared unconstitutional, the statute authorizes the State to 

execute prisoners by “any constitutional method of execution.” Ala. 

Code §15–18–82.1(c) (2016) (emphasis added). The state statute 
Cite as: 580 U. S. ____ (2017) 11 

SOTOMAYOR, J., dissenting 

82.1. But since the very beginning of our Nation, we have

emphasized the “necessity of uniformity” in constitutional 

interpretation “throughout the whole United States, upon

all subjects within the purview of the constitution.” Martin v. Hunter’s Lessee, 1 Wheat 304, 347–348 (1816) (emphasis deleted). Nowhere is the need for uniformity more 

pressing than the rules governing States’ imposition of 

death. 

B 

The Eleventh Circuit’s alternative holdings are unavailing. 

First, the court erroneously concluded that Arthur failed

to carry his burden on the first Glossip requirement—

proving that Alabama’s midazolam-centered protocol poses

a substantial risk of severe pain. The court used the 

District Court’s finding that Arthur failed to meet this

prong with respect to his as-applied challenge to hold that 

Arthur’s facial challenge likewise failed. But it is undisputed that Arthur put forth “impressive” evidence to 

support his facial challenge that neither the District Court

nor the Court of Appeals considered. This evidence included the expert testimony of Dr. Alan Kaye, chairman of

the Department of Anesthesiology at Louisiana State 

University’s Health Sciences Center, who found the dose 

of midazolam prescribed in Alabama’s protocol insufficient 

to “cure . . . the fundamental unsuitability of midazolam as 

the first drug in [Alabama’s lethal-injection] protocol.” 

App. to Pet. for Cert. 302a (emphasis added). Dr. Kaye 

—————— 

thus permits exactly what the Court required in Glossip—if a condemned prisoner can prove that the lethal-injection protocol presents 

an unconstitutional risk of needless suffering, he may propose an 

alternative, constitutional means of execution, which may include the 

firing squad. Even assuming, however, that the Eleventh Circuit 

properly interpreted Alabama’s statute, the question remains whether 

States may legislatively determine what the Eighth Amendment 

requires or prohibits. That question is worthy of our review. 
 

12 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

concluded that “the chemical properties of midazolam 

limit its ability to depress electrical activity in the brain.

The lack of another chemical property—analgesia—

renders midazolam incapable of maintaining even that 

limited level of depressed electrical activity under the

undiminished pain of the second and third lethal injection 

drugs.” Id., at 311a. 

The court next read Glossip as categorically “uph[olding]

the midazolam-based execution protocol.” 840 F. 3d, at 

1315. Glossip did no such thing. The majority opinion in 

Glossip concluded that, based on the facts presented in 

that case, “[t]he District Court did not commit clear error

when it found that midazolam is highly likely to render a 

person unable to feel pain during an execution.” 576 U. S., 

at ____ (slip op., at 16). The opinion made no determination whether midazolam-centered lethal injection represents a constitutional method of execution. 

Finally, the court’s laches finding faults Arthur for

failing to act immediately after Baze, which, according to

the panel, “made clear in 2008 . . . that a petitioner-inmate 

had the burden to show that a proffered alternative was

‘feasible, readily implemented, and in fact significantly 

reduced a substantial risk of pain.’” 840 F. 3d, at 1320, 

n. 35 (quoting Baze, 553 U. S., at 41). But the District 

Court in this case—not to mention at least four Justices of 

this Court, see Glossip, 576 U. S., at ___–___ (SOTOMAYOR, 

J., dissenting) (slip op., at 24–27)—did not read Baze as 

requiring an alternative. See Record in Arthur v. Myers, 

No. 2:11–cv–438 (MD Ala.), Doc. 195, p. 11 (“[T]he court 

does not accept the State’s argument that [a known and 

available alternative method of execution] is a specific 

pleading requirement set forth by Baze that must be 

properly alleged before a case can survive a motion to 

dismiss”). Arthur filed a statement within 14 days of our

decision in Glossip informing the District Court of his

belief that our decision would impact his case, see id., Doc. 
Cite as: 580 U. S. ____ (2017) 13 

SOTOMAYOR, J., dissenting 

245, and moved to amend his complaint a few weeks later, 

see id., Doc. 256. 

In sum, the Eleventh Circuit’s opinion rests on quicksand foundations and flouts the Constitution, as well as 

the Court’s decisions in Baze and Glossip. These errors 

alone counsel in favor of certiorari. 

IV 

The decision below is all the more troubling because it 

would put an end to an ongoing national conversation—

between the legislatures and the courts—around the 

methods of execution the Constitution tolerates. The 

meaning of the Eighth Amendment’s prohibition on cruel 

and unusual punishments “is determined not by the 

standards that prevailed when the Eighth Amendment 

was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a

maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 

419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 

(1958) (plurality opinion)). Evolving standards have

yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time. Science then 

reveals that—unknown to the previous generation—the 

States’ chosen method of execution causes unconstitutional 

levels of suffering. A new method of execution is devised, 

and the dialogue continues. The Eighth Amendment 

requires this conversation. States should not be permitted 

to silence it by statute. 

A 

From the time of the founding until the early 20th century, hanging was the preferred practice. Gardner, Executions and Indignities—An Eighth Amendment Assessment

of Methods of Inflicting Capital Punishment, 39 Ohio St.

L. J. 96, 119 (1978). After several grotesque failures at

the gallows—including slow asphyxiation and violent 
 

 

14 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

decapitation—revealed the “crude and imprecise” nature

of the practice, Campbell v. Wood, 511 U. S. 1119, 1122 

(1994) (Blackmun, J., dissenting from denial of certiorari),

States sought to execute condemned prisoners “‘in a less 

barbarous manner’” and settled on electrocution. See In 

re Kemmler, 136 U. S. 436, 444 (1890).

New York carried out the world’s first electrocution in 

ghastly fashion,4 leading the New York Times to declare it 

“a disgrace to civilization.” See Far Worse Than Hanging,

N. Y. Times, Aug. 7, 1890, p. 1. Electrocution nonetheless 

remained the dominant mode of execution for more than a 

century, until the specter of charred and grossly disfigured

bodies proved too much for the public, and the courts, to

bear.5 See, e.g., Dawson v. State, 274 Ga. 327, 335, 554 

—————— 

4New York executed William Kemmler on August 6, 1890. According

to the New York Times, “[p]robably no convicted murderer of modern

times has been made to suffer as Kemmler suffered.” Far Worse Than 

Hanging, N. Y. Times, Aug. 7, 1890, p. 1. Witnesses recounted the 

execution: 

“After the first convulsion there was not the slightest movement of

Kemmler’s body. . . . Then the eyes that had been momentarily turned 

from Kemmler’s body returned to it and gazed with horror on what they 

saw. The men rose from their chairs impulsively and groaned at the 

agony they felt. ‘Great God! [H]e is alive!’ [S]omeone said[.] ‘Turn on 

the current,’ said another . . . . 

“Again came that click as before, and again the body of the unconscious wretch in the chair became as rigid as one of bronze. It was 

awful, and the witnesses were so horrified by the ghastly sight that

they could not take their eyes off it. The dynamo did not seem to run 

smoothly. The current could be heard sharply snapping. Blood began 

to appear on the face of the wretch in the chair. It stood on the face like 

sweat. . . . 

“An awful odor began to permeate the death chamber, and then, as 

though to cap the climax of this fearful sight, it was seen that the hair

under and around the electrode on the head and the flesh under and 

around the electrode at the base of the spine was singeing. The stench 

was unbearable.” Ibid. (paragraph break omitted). 5After a particularly gruesome electrocution in Florida, this Court

granted certiorari on the question whether electrocution creates a 
 

Cite as: 580 U. S. ____ (2017) 15 

SOTOMAYOR, J., dissenting 

S. E. 2d 137, 144 (2001) (“[W]e hold that death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the 

prohibition against cruel and unusual punishment”). 

The States then tried lethal gas. Although the gas

chamber was initially believed to produce relatively painless death, it ultimately became clear that it exacted

“exquisitely painful” sensations of “anxiety, panic, [and] 

terror,” leading courts to declare it unconstitutional. See, 

e.g., Fierro v. Gomez, 77 F. 3d 301, 308 (CA9 1996) (internal quotation marks omitted).6 

Finally, States turned to a “more humane and palatable” method of execution: lethal injection. Denno, 63 Ohio 

St. L. J., at 92. Texas performed the first lethal injection 

in 1982 and, impressed with the apparent ease of the 

process, other States quickly followed suit. S. Banner, The 

Death Penalty: An American History 297 (2002). One 

prison chaplain marveled: “‘It’s extremely sanitary. . . . 

The guy just goes to sleep. That’s all there is to it.’” Ibid. 

What cruel irony that the method that appears most

humane may turn out to be our most cruel experiment yet. 

B 

Science and experience are now revealing that, at least 

with respect to midazolam-centered protocols, prisoners

executed by lethal injection are suffering horrifying deaths

beneath a “medically sterile aura of peace.” Denno, supra, 

—————— 

constitutionally unacceptable risk of physical suffering in violation of 

the Eighth Amendment, see Bryan v. Moore, 528 U. S. 960 (1999), but 

later dismissed the writ as improvidently granted in light of an

amendment to the State’s execution statute that permitted prisoners to 

choose lethal injection rather than electrocution, see Bryan v. Moore, 

528 U. S. 1133 (2000). See also Fla. Stat. Ann. §922.10 (West 2001). 6This Court granted certiorari in Fierro, vacated the judgment, and 

remanded for consideration in light of the California Legislature’s 

adoption of lethal injection as the State’s primary method of execution. 

See Gomez v. Fierro, 519 U. S. 918 (1996). 
 

 

16 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

at 66. Even if we sweep aside the scientific evidence, we 

should not blind ourselves to the mounting firsthand 

evidence that midazolam is simply unable to render prisoners insensate to the pain of execution. The examples

abound. 

After Ohio administered midazolam during the execution of Dennis McGuire in January 2014, he “strained 

against the restraints around his body, and . . . repeatedly

gasped for air, making snorting and choking sounds for 

about 10 minutes.” Johnson, Inmate’s Death Called ‘Horrific’, Columbus Dispatch, Jan. 17, 2014, pp. A1, A10.

The scene was much the same during Oklahoma’s

execution of Clayton Lockett in April 2014. After executioners administered midazolam and declared him unconscious, Lockett began to writhe against his restraints,

saying, “[t]his s*** is f***ing with my mind,” “something is 

wrong,” and “[t]he drugs aren’t working.” Glossip, 576 

U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 3). 

When Arizona executed Joseph Rudolph Wood in July 

2014 using a midazolam-based protocol, he “gulped like a

fish on land.” Kiefer, Botched Execution, Arizona Dispatch, July 24, 2014, pp. A1, A9. A witness reported more

than 640 gasps as Woods convulsed on the gurney for 

more than an hour and a half before being declared dead. 

Ibid. 

Finally, and just over a month after this Court stayed

Thomas Arthur’s execution, Alabama executed Ronald 

Bert Smith. Following the dose of midazolam, Smith 

“clenched his fist” and was “apparently struggling for

breath as he heaved and coughed for about 13 minutes.” 

Berman & Barnes, Alabama Inmate was Heaving, Coughing During Lethal-Injection Execution, Washington Post, 

Dec. 10, 2016, p. A3.

It may well be that as originally designed, lethal injection can be carried out in a humane fashion that comports

with the Eighth Amendment. But our lived experience 
Cite as: 580 U. S. ____ (2017) 17 

SOTOMAYOR, J., dissenting 

belies any suggestion that midazolam reliably renders 

prisoners entirely unconscious to the searing pain of the

latter two drugs. These accounts are especially terrifying

considering that each of these men received doses of powerful paralytic agents, which likely masked the full extent 

of their pain. Like a hangman’s poorly tied noose or a 

malfunctioning electric chair, midazolam might render our

latest method of execution too much for our conscience— 

and the Constitution—to bear. 

C 

As an alternative to death by midazolam, Thomas Arthur has proposed death by firing squad. Some might find

this choice regressive, but the available evidence suggests 

“that a competently performed shooting may cause nearly

instant death.” Denno, Is Electrocution An Unconstitutional Method of Execution? The Engineering of Death 

Over the Century, 35 Wm. & Mary L. Rev. 551, 688

(1994). In addition to being near instant, death by shooting may also be comparatively painless. See Banner, 

supra, at 203. And historically, the firing squad has 

yielded significantly fewer botched executions. See A. 

Sarat, Gruesome Spectacles: Botched Executions and 

America’s Death Penalty, App. A, p. 177 (2014) (calculating that while 7.12% of the 1,054 executions by lethal

injection between 1900 and 2010 were “botched,” none of 

the 34 executions by firing squad had been).

Chief Justice Warren famously wrote that “[t]he basic

concept underlying the Eighth Amendment is nothing less

than the dignity of man.” Trop, 356 U. S., at 100 (plurality opinion). States have designed lethal-injection protocols with a view toward protecting their own dignity, but

they should not be permitted to shield the true horror of

executions from official and public view. Condemned 

prisoners, like Arthur, might find more dignity in an

instantaneous death rather than prolonged torture on a 
 

 

 

 

 

 

18 ARTHUR v. DUNN 

SOTOMAYOR, J., dissenting 

medical gurney.

To be clear, this is not a matter of permitting inmates to

choose the manner of death that best suits their desires. 

It is a matter of permitting a death row inmate to make 

the showing Glossip requires in order to prove that the

Constitution demands something less cruel and less unusual than what the State has offered. Having met the

challenge set forth in Glossip, Arthur deserves the opportunity to have his claim fairly reviewed in court. The 

Eleventh Circuit denied him this opportunity, and in

doing so, thwarted the Court’s decision in Glossip, as well 

as basic constitutional principles. 

* * * 

Twice in recent years, this Court has observed that it

“has never invalidated a State’s chosen procedure for 

carrying out a sentence of death as the infliction of cruel

and unusual punishment.” Baze, 553 U. S., at 48 (plurality 

opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same). 

In Glossip, the majority opinion remarked that the Court

“did not retreat” from this nonintervention strategy even

after Louisiana strapped a 17-year-old boy to its electric 

chair and, having failed to kill him the first time, argued 

for a second try—which this Court permitted. Id., at ___– 

___ (slip op., at 3–4). We should not be proud of this history.

Nor should we rely on it to excuse our current inaction. 

 I dissent.