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Death Penalty & Criminal Sentencing

Madison v. Alabama

https://supreme.justia.com/cases/federal/us/586/17-7505/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 17–7505 _________________ VERNON MADISON, PETITIONER v. ALABAMA on writ of certiorari to the circuit court of alabama, mobile county [February 27, 2019] Justice Kagan delivered the opinion of the Court. The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman , 551 U.S. 930 , 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condition may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution. We direct that issue to the state court for further consideration in light of this opinion. I A This Court decided in Ford v. Wainwright , 477 U.S. 399 (1986), that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id., at 406. While on death row, Alvin Ford was beset by “pervasive delusion[s]” associated with “[p]aranoid [s]chizophrenia.” Id., at 402–403. Surveying both the common law and state statutes, the Court found a uniform practice against taking the life of such a prisoner. See id., at 406–409. Among the reasons for that time-honored bar, the Court explained, was a moral “intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” Id., at 407, 409; see id., at 409 (citing the “natural abhorrence civilized societies feel” at performing such an act). Another rationale rested on the lack of “retributive value” in executing a person who has no comprehension of the meaning of the community’s judgment. Ibid. ; see id., at 421 (Powell, J., concurring in part and concurring in judgment) (stating that the death penalty’s “retributive force[ ] depends on the defendant’s awareness of the penalty’s existence and purpose”). The resulting rule, now stated as a matter of constitutional law, held “a category of defendants defined by their mental state” incompetent to be executed. Id., at 419. The Court clarified the scope of that category in Panetti v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” 551 U. S., at 958. Like Alvin Ford, Scott Panetti suffered from “gross delusions” stemming from “extreme psychosis.” Id., at 936, 960. In reversing a ruling that he could still be executed, the Panetti Court set out the appropriate “standard for competency.” Id., at 957. Ford , the Court now noted, had not provided “specific criteria.” 551 U. S., at 957. But Ford had explored what lay behind the Eighth Amendment’s prohibition, highlighting that the execution of a prisoner who cannot comprehend the reasons for his punishment offends moral values and “serves no retributive purpose.” 551 U. S. , at 958. Those principles, the Panetti Court explained, indicate how to identify prisoners whom the State may not execute. The critical question is whether a “prisoner’s mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his] execution.” Id., at 958–959. Or similarly put, the issue is whether a “prisoner’s concept of reality” is “so impair[ed]” that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment.” Id., at 958, 960. B Vernon Madison killed a police officer in 1985 during a domestic dispute. An Alabama jury found him guilty of capital murder, and the trial court sentenced him to death. He has spent most of the ensuing decades on the State’s death row. In recent years, Madison’s mental condition has sharply deteriorated. Madison suffered a series of strokes, including major ones in 2015 and 2016. See Tr. 19, 46–47 (Apr. 14, 2016). He was diagnosed as having vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. See id., at 19–20, 52–54. In particular, Madison claims that he can no longer recollect committing the crime for which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8. After his 2016 stroke, Madison petitioned the trial court for a stay of execution on the ground that he had become mentally incompetent. Citing Ford and Panetti , he argued that “he no longer understands” the “status of his case” or the “nature of his conviction and sentence.” Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), pp. 11, 14. And in a later filing, Madison emphasized that he could not “independently recall the facts of the offense he is convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8. Alabama countered that Madison had “a rational understanding of [the reasons for] his impending execution,” as required by Ford and Panetti , even assuming he had no memory of committing his crime. Brief on Madison’s Competency (April 21, 2016), pp. 4–5, 8. And more broadly, the State claimed that Madison could not possibly qualify as incompetent under those two decisions because both “concerned themselves with ‘[g]ross delusions’ ”—which all agree Madison does not have. Id., at 2; see ibid. (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”). Expert reports from two psychologists largely aligned with the parties’ contending positions. Dr. John Goff, Madison’s expert, found that although Madison “underst[ood] the nature of execution” in the abstract, he did not comprehend the “reasoning behind” Alabama’s effort to execute him . Tr., Pet. Exh. 2 (Apr. 14, 2016), p. 8; see id., at 9. Goff stated that Madison had “Major Vascular Neurological Disorder”—also called vascular dementia—which had caused “significant cognitive decline.” Ibid. And Goff underscored that Madison “demonstrate[d] retrograde amnesia” about his crime, meaning that he had no “independent recollection[ ]” of the murder. Id., at 8; see id., at 9. For his part, Dr. Karl Kirkland, the court-appointed expert, reported that Madison “was able to discuss his case” accurately and “appear[ed] to understand his legal situation.” Tr., Ct. Exh. 1, pp. 10–11. Although Kirkland acknowledged that Madison’s strokes had led to cognitive decline, see id., at 10, the psychologist made no men- tion of Madison’s diagnosed vascular dementia. Rather, Kirkland highlighted that “[t]here was no evidence of psychosis, paranoia, or delusion.” Id., at 9; see ibid. (Madison “did not seem delusional at all”). At a competency hearing, Alabama similarly stressed Madison’s absence of psychotic episodes or delusions. The State asked both experts to affirm that Madison was “neither delusional [n]or psychotic.” Tr. 56; see id. , at 22. And its closing argument focused on their agreement that he was not. As the State summarized: “He’s not psychotic. He’s not delusional.” Id. , at 81. On the State’s view, that fact answered the competency question because “[t]he Supreme Court is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of” rationally understanding his punishment. Id. , at 82. Madison’s counsel disputed that point. “[T]he State would like to say, well, he’s not delusional, he’s not psychotic,” the attorney recapped. Id. , at 83. But, she continued, “[t]hat’s not really the criteria” under Panetti . Tr. 83. Rather, the Court there barred executing a person with any mental illness—“dementia” and “brain injuries” no less than psychosis and delusions—that prevents him from comprehending “why he is being executed.” Ibid. The trial court found Madison competent to be executed. Its order first recounted the evidence given by each expert witness. The summary of Kirkland’s report and testimony began by stating that the psychologist had “found no evidence of paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016), p. 5 (2016 Order). The court then noted Kirkland’s view that Madison could “give details of the history of his case” and “appear[ed] to understand his legal situation.” Ibid . Turning to the Goff report, the court noted the expert’s finding that Madison was “amnesic” and could not recollect his crime. Id., at 6; see id., at 7. In a single, final paragraph, the court provided both its ruling and its reasoning. Madison had failed to show, the court wrote, that he did not “rationally understand the punishment he is about to suffer and why he is about to suffer it.” Id., at 10. The court “accept[ed] the testimony of Dr. Kirkland as to the understanding Madison has concerning the situation.” Ibid. “Further,” the court concluded, “the evidence does not support that Mr. Madison is delusional.” Ibid. Madison next sought habeas relief in federal court, where he faced the heavy burden of showing that the state-court ruling “involved an unreasonable application of[ ] clearly established federal law” or rested on an “unreasonable determination of the facts.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The District Court rejected his petition, but the Court of Appeals for the Eleventh Circuit ruled that Madison had demonstrated both kinds of indisputable error. See Madison v. Commissioner , 851 F.3d 1173 (2017). This Court then summarily reversed the appeals court’s decision. See Dunn v. Madison , 583 U. S. ___ (2017) ( per curiam ). We explained, contrary to the Eleventh Circuit’s principal holding, that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember his crime. Id., at ___ (slip op., at 4). And we found that the state court did not act unreasonably—otherwise put, did not err “beyond any possibility for fairminded disagreement”—when it found that Madison had the necessary understanding to be executed. Ibid. (internal quotation marks omitted). But we made clear that our decision was premised on AEDPA’s “demanding” and “deferential standard.” Id., at ___, ___ (slip op., at 3, 4). “We express[ed] no view” on the question of Madison’s competency “outside of the AEDPA context.” Id., at ___ (slip op., at 4).[ 1 ] When Alabama set an execution date in 2018, Madison returned to state court to argue again that his mental condition precluded the State from going forward. In his petition, Madison reiterated the facts and arguments he had previously presented to the state court. But Madison also claimed that since that court’s decision (1) he had suffered further cognitive decline and (2) a state board had suspended Kirkland’s license to practice psychology, thus discrediting his prior testimony. See Pet. to Suspend Execution in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 1–2, 16–19.[ 2 ] Alabama responded that nothing material had changed since the court’s first competency hearing. See Motion to Dismiss (Dec. 20, 2017), p. 9. The State also repeated its argument that Panetti permits executing Madison, pointing to the experts’ agreement that he is “not delusional or psychotic” and asserting that neither “memory impairment [n]or dementia [could] suffice to satisfy the Panetti and Ford standards” without “an expansion” of those decisions. Motion to Dismiss 4, 10. A week before the scheduled execution, the state court again found Madison mentally competent. Its brief order stated only that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. Madison then filed in this Court a request to stay his execution and a petition for certiorari. We ordered the stay on the scheduled execution date and granted the petition a few weeks later. See 583 U. S. ___, ___ (2018). Because the case now comes to us on direct review of the state court’s decision (rather than in a habeas proceeding), AEDPA’s deferential standard no longer governs. (And for that reason—contrary to the dissent’s suggestion, post , at 12—our decision on Madison’s habeas petition cannot help resolve the questions raised here.) II Two issues relating to Panetti ’s application are before us. Recall that our decision there held the Eighth Amendment to forbid executing a prisoner whose mental illness makes him unable to “reach a rational understanding of the reason for [his] execution.” 551 U. S., at 958; see supra, at 2–3. The first question presented is whether Panetti prohibits executing Madison merely because he cannot remember committing his crime. The second question raised is whether Panetti permits executing Madison merely because he suffers from dementia, rather than psychotic delusions.[ 3 ] In prior stages of this case, as we have described, the parties disagreed about those matters. See supra, at 4–8. But at this Court, Madison accepted Alabama’s positon on the first issue and Alabama accepted Madison’s on the second. See, e.g. , Tr. of Oral Arg. 11, 36. And rightly so. As the parties now recognize, the standard set out in Panetti supplies the answers to both questions. First, a person lacking memory of his crime may yet rationally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational understanding” Panetti requires—not whether he has any particular memory or any particular mental illness. A Consider initially a person who cannot remember his crime because of a mental disorder, but who otherwise has full cognitive function. The memory loss is genuine: Let us say the person has some kind of amnesia, which has produced a black hole where that recollection should be. But the person remains oriented in time and place; he can make logical connections and order his thoughts; and he comprehends familiar concepts of crime and punishment. Can the State execute him for a murder? When we considered this case before, using the deferential standard applicable in habeas, we held that a state court could allow such an execution without committing inarguable error. See Madison , 583 U. S., at ___ (slip op., at 4) (stating that no prior decision had “clearly established” the opposite); supra, at 6. Today, we address the issue straight-up, sans any deference to a state court. Again, is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner? It is not, under Panetti ’s own terms. That decision asks about understanding, not memory—more specifically, about a person’s understanding of why the State seeks capital punishment for a crime, not his memory of the crime itself. And the one may exist without the other. Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreciate the State’s desire to impose a penalty. Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the Panetti standard’s singular focus. The same answer follows from the core justifications Panetti offered for framing its Eighth Amendment test as it did. Echoing Ford, Panetti reasoned that execution has no retributive value when a prisoner cannot appreciate the meaning of a community’s judgment. See 551 U. S., at 958–959 (citing 477 U. S., at 407–408); supra, at 3. But as just explained, a person who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence. Similarly, Ford and Panetti stated that it “offends humanity” to execute a person so wracked by mental illness that he cannot comprehend the “meaning and purpose of the punishment.” 477 U. S., at 407; 551 U. S., at 960; see id., at 958. But that offense to morality must be much less when a person’s mental disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall. But such memory loss still may factor into the “rational understanding” analysis that Panetti demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment, then the Panetti standard will be satisfied. That may be so when a person has difficulty preserving any memories, so that even newly gained knowledge (about, say, the crime and punishment) will be quickly forgotten. Or it may be so when cognitive deficits prevent the acquisition of such knowledge at all, so that memory gaps go forever uncompensated. As Panetti indicated, neurologists, psychologists, and other experts can contribute to a court’s understanding of issues of that kind. See id. , at 962. But the sole inquiry for the court remains whether the prisoner can rationally understand the reasons for his death sentence. B Next consider a prisoner who suffers from dementia or a similar disorder, rather than psychotic delusions. The dementia, as is typical, has compromised this prisoner’s cognitive functions. But it has not resulted in the kind of delusional beliefs that Alvin Ford and Scott Panetti held. May the prisoner nonetheless receive a stay of execution under Ford and Panetti ? Or instead, is a delusional disorder a prerequisite to declaring a mentally ill person incompetent to be executed? We did not address that issue when we last considered this case, on habeas review; in that sense, the question is one of first impression. See supra, at 6, n. 1. But here too, Panetti has already answered the question. Its standard focuses on whether a mental disorder has had a particular effect : an inability to rationally understand why the State is seeking execution. See supra, at 2–3. Conversely, that standard has no interest in establishing any precise cause : Psychosis or dementia, delusions or overall cognitive decline are all the same under Panetti , so long as they produce the requisite lack of comprehension. To be sure, Panetti on occasion spoke of “gross delusions” in explaining its holding. 551 U. S., at 960. And similarly, Ford talked about the “insane,” which sometimes refers to persons holding such irrational beliefs. See, e.g., 477 U. S., at 401, 410.[ 4 ] But those references are no more than a predictable byproduct of the two cases’ facts. At the same time (and interchangeably), Panetti used more inclusive terms, such as “mental illness,” “mental disorder,” and “psychological dysfunction.” 551 U. S., at 936, 959, 960; see Ford , 477 U. S., at 408–409, n. 2 (referring to prisoners with “mental illness”). And most important, Panetti framed its test, as just described, in a way utterly indifferent to a prisoner’s specific mental illness. The Panetti standard concerns, once again, not the diagnosis of such illness, but a consequence—to wit, the prisoner’s inability to rationally understand his punishment. And here too, the key justifications Ford and Panetti offered for the Eighth Amendment’s bar confirm our conclusion about its reach. As described above, those decisions stated that an execution lacks retributive purpose when a mentally ill prisoner cannot understand the societal judgment underlying his sentence. See Panetti , 551 U. S., at 958–959; Ford , 477 U. S., at 409; supra, at 2–3. And they indicated that an execution offends morality in the same circumstance. See 551 U. S., at 958, 960; 477 U. S., at 409; supra, at 2–3. Both rationales for the constitutional bar thus hinge (just as the Panetti standard deriving from them does) on the prisoner’s “[in]comprehension of why he has been singled out” to die. 477 U. S., at 409; see supra, at 2–3. Or said otherwise, if and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another (say, psychotic delusions or dementia) is to blame. In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a downstream consequence. As Ford and Panetti recognized, a delusional disorder can be of such severity—can “so impair the prisoner’s concept of reality”—that someone in its thrall will be unable “to come to grips with” the punishment’s meaning. Panetti , 551 U. S., at 958; Ford , 477 U. S., at 409. But delusions come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires. See Panetti , 551 U. S. , at 962 (remanding the case to consider expert evidence on whether the prisoner’s delusions did so). And much the same is true of dementia. That mental condition can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him. See supra, at 11–12. But dementia also has milder forms, which allow a person to preserve that understanding. Hence the need—for dementia as for delusions as for any other mental disorder—to attend to the particular circumstances of a case and make the precise judgment Panetti requires. III The only question left—and the only one on which the parties now disagree—is whether Madison’s execution may go forward based on the state court’s decision below. Madison’s counsel says it cannot because that ruling was tainted by legal error—specifically, the idea that only delusions, and not dementia, can support a finding of mental incompetency. See Tr. of Oral Arg. 12, 21, 25, 27. Alabama counters that the state court did not rely on that (concededly) incorrect view of the law. See id. , at 37–41. But we come away at the least unsure whether that is so—especially given Alabama’s evidence and arguments in the state court. As noted earlier, the 2018 ruling we review today contains only one sentence of explanation. See supra, at 7–8. It states that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. If the state court used the word “insanity” to refer to a delusional disorder, then error occurred: The court would have denied a stay on the ground that Madison did not have that specific kind of mental illness. And the likelihood that the court made that mistake is heightened by the State’s emphasis, at that stage of the proceedings (as at others), that Madison was “not delusional or psychotic” and that “dementia” could not suffice to bar his execution absent “an expansion of Ford and Panetti .” Motion to Dismiss 4, 10; see supra, at 4–8; but see post, at 9–10, and n. 4 (disregarding those arguments).[ 5 ] Alabama argues, however, that the court spoke of “insanity” only because the state statute under which Madison sought relief uses that term. See Tr. of Oral Arg. 37; Ala. Code §15–16–23 (2011) (allowing a stay of execution “on account of the [convict’s] insanity”). But even if so, that does not advance the State’s view that the state court properly understood the Eighth Amendment bar when assessing Madison’s competency. Alabama told this Court in opposing certiorari that its statute covers only those with delusional disorders, and not those with dementia. See Brief in Opposition 12 (“[T]he sole question to be answered under the state statute was whether Madison was insane, not whether he suffered from dementia”). The state court’s (supposed) echoing of statutory language understood in that way cannot provide assurance that the court knew a person with dementia might receive a stay of execution; indeed, it suggests exactly the opposite. The court’s 2018 order thus calls out for a do-over. Alabama further contends, however, that we should look past the state court’s 2018 decision to the court’s initial 2016 determination of competency. (The dissent similarly begins with the 2016 ruling, see post, at 6–7, even though that is not the decision under review here.) According to the State, nothing material changed in the interim period, see supra, at 7; thus, we may find the meaning of the later ruling in the earlier one, see Tr. of Oral Arg. 36–37. And, the State continues, the 2016 opinion gets the law right. Alabama’s proof is that the court, after summarizing the psychologists’ testimony, found that “Madison has a rational[ ] understanding, as required by Panetti ,” concerning the “punishment he is about to suffer and why he is about to suffer it.” 2016 Order, at 10; see Tr. of Oral Arg. 39; supra, at 5–6. (The dissent quotes the same passage. See post, at 7.) But the state court’s initial decision does not aid Alabama’s cause. First, we do not know that the court in 2018 meant to incorporate everything in its prior opinion. The order says nothing to that effect; and though it came out the same way as the earlier decision, it need not have rested on all the same reasoning. Second, the 2016 opinion itself does not show that the state court realized that persons suffering from dementia could satisfy the Panetti standard. True enough, as Alabama says, that the court accurately stated that standard in its decision. But as described above, Alabama had repeatedly argued to the court (over Madison’s objection) that only prisoners suffering from delusional disorders could qualify as incompetent under Panetti . See, e.g., Brief on Madison’s Competency 2 (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”); Tr. 82 (“The Supreme Court [in Panetti ] is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of” rationally understanding his punishment); see also supra, at 4–5; but see post, at 9–10, and n. 4 (disregarding those arguments). And Alabama relied on the expert opinion of a psychologist who highlighted Madison’s lack of “psychosis, paranoia, or delusion,” while never mentioning his dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited understanding of Panetti ’s compass is reflected in the court’s 2016 opinion. In its single paragraph of analysis, the court “accept[ed] the testimony” of the State’s preferred psychologist.[ 6 ] And the court further found that “the evidence does not support that Mr. Madison is delusional”—without ever considering his undisputed dementia. 2016 Order, at 10. For those reasons, we must return this case to the state court for renewed consideration of Madison’s competency (assuming Alabama sets a new execution date). See, e.g., Kindred Nursing Centers L. P. v. Clark , 581 U. S. ___, ___ (2017) (slip op., at 9) (remanding when “uncertain” whether “an impermissible taint occurred”); Clemons v. Mississippi , 494 U.S. 738 , 751–752 (1990) (similar). In that proceeding, two matters disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remember committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. The sole question on which Madison’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. Panetti , 551 U. S., at 958. In answering that question—on which we again express no view, see supra, at 6—the state court may not rely on any arguments or evidence tainted with the legal errors we have addressed. And because that is so, the court should consider whether it needs to supplement the existing record. Some evidence in that record, including portions of the experts’ reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments. The state court, we have little doubt, can evaluate such matters better than we. It must do so as the first step in assessing Madison’s competency—and ensuring that if he is to be executed, he understands why. We accordingly vacate the judgment of the state court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Justice Kavanaugh took no part in the consideration or decision of this case. Notes 1 Neither did we opine on—or even mention—the subsidiary legal question whether a mental disorder other than delusions may render a person incompetent to be executed. Alabama told the Eleventh Circuit that it could not, thus reprising the claim the State had made in the trial court. See Madison , 851 F. 3d, at 1188 (describing Alabama’s argument that “only a prisoner suffering from gross delusions can show incompetency under Panetti ”); Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 26:36–26:45 (“In this case, what we have is someone who claims to have a mental illness, dementia,” but does not have “delusions, which is what Panetti requires”); id., at 26:48–27:21 (When asked if someone with “severe dementia” but no delusions could be executed, the State responded “I think so because . . . they don’t have delusions”). (Alabama alternatively argued that the state court’s decision was not based on that view, see Brief for Appellee in No. 16–12279 (CA11), pp. 37–38; the quotations the dissent picks out, see post, at 10, n. 4, come from that additional argument.) The Eleventh Circuit rejected the State’s contention that dementia could not preclude an execution as “inconsistent with the principles underlying” Ford and Panetti . 851 F. 3d, at 1188. But we had no reason to address that holding in light of the errors we saw in other parts of the appeals court’s analysis. 2 As Madison’s petition recounted, the license suspension followed the opening of a criminal investigation into whether Kirkland had committed narcotics offenses. See Pet. to Suspend Execution 17–19. 3 The dissent is in high dudgeon over our taking up the second question, arguing that it was not presented in Madison’s petition for certiorari. See post, at 1–6. But that is incorrect. The petition presented two questions—the same two we address here. The first question asked whether the Eighth Amendment bars executing Madison because he has no “memory of his commission of the capital offense.” Pet. for Cert. iii. The second question asked whether that Amendment bars his execution because his “vascular dementia” and “severe cognitive dysfunction” prevent him from either remembering his crime “or understanding the circumstances of his scheduled execution.” Ibid. So the first question concerned whether memory loss alone could form the basis of a Panetti claim and the second whether the varied consequences of dementia could do so. The body of the petition, to be sure, devoted more space to the first question. But it clearly referenced the second. See Pet. for Cert. 18 (“[T]his Court has never sought to constrain the world of maladies that can give rise to a finding that a prisoner is incompetent to be executed”); id., at 25 (“[C]ourts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed”). And in any event, the number of words spent on each is not what matters. Our Rule states that the Court will consider “[o]nly the questions set out in the petition, or fairly included therein.” This Court’s Rule 14.1(a). Here, we consider, in order, the two questions set out in Madison’s petition. 4 Alternatively, however, the term may also be used to encompass persons with other mental conditions, so long as they are “severe enough [to] prevent[ ] a person from having legal capacity and excuse[ ] the person from criminal or civil responsibility.” Black’s Law Dictionary 914 (10th ed. 2014). In that different understanding, “insanity” connotes a general standard of legal competency rather than a more limited description of delusional disorders. 5 The State once again repeated that argument in its Brief in Opposition to Madison’s certiorari petition. See Brief in Opposition 11–12 (“Madison does not argue that he is insane. Instead, he argues that he suffers from dementia” and that his execution should be barred “under a yet-unannounced expansion of Ford and Panetti ”). 6 The court well understood that expert’s exclusive focus on whether Madison had psychotic delusions. In summarizing his testimony, the court began as follows: “Dr. Kirkland in his exam found no evidence of paranoia or delusion at the time of his examin[ation], on March 31, 2016. He also found that there was no psychosis present.” 2016 Order, at 5; see supra, at 5. SUPREME COURT OF THE UNITED STATES _________________ No. 17–7505 _________________ VERNON MADISON, PETITIONER v. ALABAMA on writ of certiorari to the circuit court of alabama, mobile county [February 27, 2019] Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting. What the Court has done in this case makes a mockery of our Rules. Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional. After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim. See Brief for Petitioner 16. This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question. Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn , 580 U. S. ___ (2016); City and County of San Francisco v. Sheehan , 575 U. S. ___ (2015). We should do that here. Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that petitioner claims it took. I The question on which we granted review was an outgrowth of our per curiam decision in Dunn v. Madison , 583 U. S. ___ (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in Ford v. Wainwright , 477 U.S. 399 (1986), that the Eighth Amendment prohibits the execution of a person who is “insane,” and in Panetti v. Quarterman , 551 U.S. 930 (2007), the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte. We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U. S. C. §2254(d), which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejection of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed. Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn , 583 U. S., at ___ (slip op., at 4). And a concurring opinion authored by Justice Ginsburg and joined by Justices Breyer and Sotomayor teed up this question for review in a later case. Id., at ___ (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing”). Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now. II The centerpiece of the petition and petitioner’s 11th-hour application for a stay of execution[ 1 ] was the argument that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought: “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the underlying offense is consistent with the evolving standards of decency inherent in this Court’s Eighth Amendment jurisprudence.” Id., at 2. This same point was made time and again: ●“[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” Id., at 18. ●“[I]mposing death on a prisoner, who, like Mr. Madison, suffers from substantial memory deficits by virtue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” Id., at 22. ●“[E]xecuting an individual with no memory of the underlying offense serves no retributive purpose.” Ibid. ●“[W]here the person being punished has no memory of the commission of the offense for which he is to be executed, the ‘moral quality’ of that punishment is lessened and unable to match outrage over the offense.” Id., at 22–23. ●“Mr. Madison’s severe memory impairments as a result of vascular dementia render him incompetent to be executed under the Eight Amendment.” Id., at 25 (quotation altered). In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti , may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison , [583 U. S. ___, ___ (2017) (Ginsburg, J., joined by Breyer and Sotomayor, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii. With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the petition, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia rendered him incapable of having a rational understanding of the reason for his execution. But that is the sort of factbound question on which we rarely grant review, see this Court’s Rule 10, and it is questionable whether we did so here. But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford / Panetti claim. There is no inkling of that argument in the petition. Although the petition described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed,” id., at 25, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position. Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable.[ 2 ] It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a). III Even if it were proper for us to consider whether the order below was based on an erroneous distinction between dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hearing in 2016, the state court rejected petitioner’s Ford / Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence . . . that he . . . does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Madison has a rationa[l] understanding, as required by Panetti , that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” Ibid. In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, at 14. In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity , a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti . This concern is unfounded. Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti . The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that renames the word or phrase that precedes it. In other words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti . What was that? In Ford , the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implications.” 477 U. S., at 417. Justice Powell, who provided the fifth vote for the decision, took a similar position. See id., at 422–423 (opinion concurring in part and concurring in judgment). In Panetti , which built on the holding in Ford , the Court used the term in a similar way. See 551 U. S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti , if the prisoner does not understand the reason for his execution. Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and remanding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak. First, the majority attributes to the state court an interpretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, Ala. Code §15–16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the meaning of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a petition for post-conviction relief” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12. The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubtful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under Ala. Code §15–16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted. The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madison’s objection) that only prisoners suffering from delusional disorders could qualify as incompetent under Panetti .” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti , argued strenuously that he was not delusional. (The State made this argument because petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.[ 3 ]) But arguing, as the State did, that petitioner was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execution. The majority cites no place where the State made the latter argument in the state court.[ 4 ] And even if the State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said. I add one more comment regarding the majority’s uncertainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti , Madison was en- titled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at ___ (slip op., at 2) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have committed.” Id., at ___ (slip op., at 4); see also ibid. (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it understood without any apparent difficulty two years ago is hard to grasp. For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the state court’s factual finding on the question whether Madison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the question whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. *  *  * Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent. Notes 1 Petitioner sought and obtained a stay of execution based on this same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “substantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commission of the capital offense,” would violate the Eighth Amendment). 2 The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford / Panetti test. 3 Petitioner’s papers emphasized again and again that he suffers from delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabilities”); id ., at 5 (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); ibid. (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); ibid. (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about . . . medication and believed that he was being used as a guinea pig in medical experiments”); id. , at 6 (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); id. , at 8 (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); id. , at 14 (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016). 4 Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, at 6–7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford / Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to consider Madison’s claims pertaining to dementia—Madison cannot point to any portion of the state court order that says this—it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational understanding of his execution, including the reasons therefor”); id., at 27 (“The Supreme Court has not held that a petitioner can show incompetence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); id., at 29 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U. S. C. §2254(d), stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under §2254(d) must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at  32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have  a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti . . . .  I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. . . .  I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understanding”); id., at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding.  I think that is just undeniably true.  And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”).  The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had determined that dementia and severe memory loss—or even total amnesia—are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also id., at 30 (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational understanding, that determination was not unreasonable in light of clearly established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1.  Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panetti ’s “very narrow” holding.  (And as we later held in Dunn , the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that peti-tioner could be executed even if his dementia precluded a rational understanding.

The Supreme Court case of Vernon Madison v. Alabama addressed the question of whether the Eighth Amendment prohibits the execution of a prisoner with a mental disorder that leaves them without memory of their crime. The Court held that while memory loss alone may not impede rational understanding, dementia or other mental illnesses must be considered as they may impede comprehension of punishment. The case was sent back to the state court to determine if Madison's execution should be stayed due to his dementia.

Death Penalty & Criminal Sentencing

Jones v. Mississippi

https://supreme.justia.com/cases/federal/us/593/18-1259/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1259 _________________ BRETT JONES, PETITIONER v. MISSISSIPPI on writ of certiorari to the court of appeals of mississippi [April 22, 2021] Justice Kavanaugh delivered the opinion of the Court. Under Miller v. Alabama , 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment. In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18. The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller . Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller . Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible. And Jones says that the trial judge did not make such a finding in his case. Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents. In Miller , the Court mandated “only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence. Id., at 483. And in Montgomery v. Louisiana , which held that Miller applies retroactively on collateral review, the Court flatly stated that “ Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument. We affirm the judgment of the Mississippi Court of Appeals. I A In August 2004, Brett Jones was living with his grandparents, Bertis and Madge, in Shannon, Mississippi. Shannon is a small town of about 2,000 in northern Mississippi near Tupelo, about halfway between Memphis and Birmingham off I–22. At the time, Jones was only 15 years old. On the morning of August 9, 2004, Bertis discovered Jones’s girlfriend, Michelle Austin, in Jones’s bedroom. Bertis and Jones got into an argument, and Bertis ordered Austin out of the house. A few hours later, Jones told Austin that he “ ‘was going to hurt’ ” his grandfather. 938 So. 2d 312, 314 (Miss. App. 2006). That afternoon, Jones was in the kitchen making himself something to eat. Jones and Bertis began arguing again. The clash escalated from shouts to shoves to punches. Jones then stabbed his grandfather with a kitchen knife. When that knife broke, Jones picked up a second knife and continued stabbing Bertis. In total, Jones stabbed his grandfather eight times. Bleeding profusely, Bertis staggered outside, fell to the ground, and died. Jones did not call 911. Instead, he haphazardly attempted to cover up his role in the murder. He dragged Bertis’s body back inside. Jones then washed the blood off his arms with a water hose, changed out of his bloody shirt, and moved Bertis’s car over some blood stains on the carport floor. While Jones was outside, he was seen by a neighbor. The neighbor called the police. Shortly thereafter, another neighbor saw Jones and Austin leaving the house together on foot. Later that night, police located Jones and Austin at a gas station several miles away. When questioned, Jones and Austin provided fake names to the officer. After a police pat down revealed a knife in Jones’s pocket, the officer asked Jones whether it was the knife that he “ ‘did it with.’ ” Id., at 315. Jones responded, “ ‘No, I already got rid of it.’ ” Ibid . B Jones was charged with murder. The trial judge instructed the jury on murder and the lesser included offense of manslaughter. Jones claimed that he was not guilty because he acted in self-defense. The jury rejected that defense and found Jones guilty of murder. Under Mississippi law at the time, murder carried a mandatory sentence of life without parole. Miss. Code Ann. §97–3–21 (2000), §47–7–3(g) (2004); see Parker v. State , 119 So. 3d 987, 996–997 (Miss. 2013). The trial judge therefore imposed that sentence. In 2006, the Mississippi Court of Appeals affirmed. See 938 So. 2d 312. Jones later moved for post-conviction relief in state court, asserting among other things that his mandatory life-without-parole sentence violated the Cruel and Unusual Punishments Clause of the Eighth Amendment. The trial court denied the motion, and the Mississippi Court of Appeals affirmed. See 122 So. 3d 725 (2011). In 2012, while the Mississippi Supreme Court was considering whether to review Jones’s case, this Court decided Miller v. Alabama , 567 U.S. 460 . Miller held that the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits mandatory life-without-parole sentences for murderers under 18, but the Court allowed discretionary life-without-parole sentences for those offenders. In the wake of Miller , the Mississippi Supreme Court concluded that Miller applied retroactively on state collateral review. In Jones’s case, the State Supreme Court ordered a new sentencing hearing where the sentencing judge could consider Jones’s youth and exercise discretion in selecting an appropriate sentence. See 122 So. 3d 698 (2013). At the resentencing, Jones’s attorney argued that Jones’s “chronological age and its hallmark features” diminished the “penological justifications for imposing the harshest sentences.” App. 25, 27 (quoting Miller , 567 U. S., at 472, 477; emphasis deleted). Jones’s attorney added that “nothing in this record . . . would support a finding that the offense reflects irreparable corruption.” App. 143–144. At the end of the hearing, the sentencing judge acknowledged that he had discretion under Miller to impose a sentence less than life without parole. But after considering the factors “relevant to the child’s culpability,” App. 149, the judge determined that life without parole remained the appropriate sentence for Jones, id., at 152. Jones appealed his sentence to the Mississippi Court of Appeals, citing both Miller and the then-recently decided case of Montgomery v. Louisiana , 577 U.S. 190 (2016), which in the interim had held that Miller applied retroactively on collateral review. According to Jones, in order to impose a life-without-parole sentence on a defendant who committed a murder when he or she was under 18, the sentencer must make a separate factual finding that the defendant is permanently incorrigible. The Mississippi Court of Appeals rejected Jones’s argument, relying on this Court’s express statement in Montgomery that “ ‘ Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility.’ ” 285 So. 3d 626, 632 (2017) (quoting Montgomery , 577 U. S., at 211). In light of disagreement in state and federal courts about how to interpret Miller and Montgomery , we granted certiorari. 589 U. S. ___ (2020). Compare, e.g., Malvo v. Mathena , 893 F.3d 265 (CA4 2018), Commonwealth v. Batts , 640 Pa. 401, 163 A.3d 410 (2017), and Veal v. State , 298 Ga. 691, 784 S.E.2d 403 (2016), with, e.g., United States v. Sparks , 941 F.3d 748 (CA5 2019), People v. Skinner , 502 Mich. 89, 917 N.W.2d 292 (2018), and State v. Ramos , 187 Wash. 2d 420, 387 P.3d 650 (2017). II According to Jones, a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller . In Jones’s view, a sentencer who imposes a life-without-parole sentence must also either (i) make a separate factual finding of permanent incorrigibility, or (ii) at least provide an on-the-record sentencing explanation with an “implicit finding” of permanent incorrigibility. Tr. of Oral Arg. 32; see id., at 6, 14. As we will explain, the Court has already ruled that a separate factual finding of permanent incorrigibility is not required. In Montgomery , the Court unequivocally stated that “ Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211. In a case involving an individual who was under 18 when he or she committed a homicide, a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.[ 1 ] A In 2004, the year that Jones murdered his grandfather, about 16,000 individuals committed a homicide in the United States. See Dept. of Justice, Federal Bureau of Investigation, Crime in the United States 2004, Murder Offenders by Age, Sex, and Race 17 (Table 2.5). About 850 of the individuals who committed a homicide were known to be under 18—meaning that, on average, more than two homicides were committed every day by individuals under 18. Ibid. The States authorize strict punishments for homicide, including for homicides committed by individuals under 18. But this Court has held that sentencing an offender who was under 18 at the time of the crime raises special constitutional considerations. Ratified in 1791, the Eighth Amendment provides that “cruel and unusual punishments” shall not be “inflicted.” Ratified in 1868, the Fourteenth Amendment incorporates the Cruel and Unusual Punishments Clause against the States. In a series of Eighth Amendment cases applying the Cruel and Unusual Punishments Clause, this Court has stated that youth matters in sentencing. In Roper v. Simmons , 543 U.S. 551 (2005), the Court concluded that the Eighth Amendment prohibits capital punishment for murderers who were under 18 at the time of their crimes. And in Graham v. Florida , 560 U.S. 48 (2010), the Court held that the Eighth Amendment prohibits life without parole for offenders who were under 18 and committed non- homicide offenses. Importantly, however, Graham did not prohibit life without parole for offenders who were under 18 and committed homicide . The Graham Court stated: “There is a line between homicide and other serious violent offenses against the individual.” Id., at 69 (internal quotation marks omitted). And then in Miller in 2012, the Court allowed life-without-parole sentences for defendants who committed homicide when they were under 18, but only so long as the sentence is not mandatory—that is, only so long as the sentencer has discretion to “consider the mitigating qualities of youth” and impose a lesser punishment. 567 U. S., at 476 (internal quotation marks omitted). Four years later, Montgomery held that Miller applied retroactively to cases on collateral review. 577 U. S., at 206, 212. Jones argues that Miller requires more than just a discretionary sentencing procedure. According to Jones, the sentencer must also make a separate factual finding of permanent incorrigibility before sentencing a murderer under 18 to life without parole. The problem for Jones is that Miller and Montgomery squarely rejected such a requirement. Miller mandated “only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence. 567 U. S., at 483. Montgomery then flatly stated that “ Miller did not impose a formal factfinding requirement” and that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211.[ 2 ] Notwithstanding that clear language in Miller and Montgomery , Jones advances three distinct arguments for why this Court should require a sentencer to make a finding of permanent incorrigibility before sentencing a murderer under 18 to life without parole. First, Jones analogizes to cases where the Court has recognized certain eligibility criteria, such as sanity or a lack of intellectual disability, that must be met before an offender can be sentenced to death. See Ford v. Wainwright , 477 U.S. 399 (1986); Atkins v. Virginia , 536 U.S. 304 (2002). Jones argues that the Constitution similarly requires a sentencer to find permanent incorrigibility before sentencing a murderer under 18 to life without parole. The State responds that permanent incorrigibility is not an eligibility criterion akin to sanity or a lack of intellectual disability. We agree with the State. For one thing, the Court has recognized that it “is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper , 543 U. S., at 573. In addition, when the Court has established such an eligibility criterion, the Court has considered whether “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice,’ ” demonstrated a “national consensus” in favor of the criterion. Graham , 560 U. S., at 61 (quoting Roper , 543 U. S., at 563). But Miller did not identify a single State that, as of that time, made permanent incorrigibility an eligibility criterion for life-without-parole sentences imposed on murderers under 18. Given those two points, it comes as no surprise that Miller declined to characterize permanent incorrigibility as such an eligibility criterion. Rather, Miller repeatedly described youth as a sentencing factor akin to a mitigating circumstance. And Miller in turn required a sentencing procedure similar to the procedure that this Court has required for the individualized consideration of mitigating circumstances in capital cases such as Woodson v. North Carolina , 428 U.S. 280 , 303–305 (1976) (plurality opinion), Lockett v. Ohio , 438 U.S. 586 , 597–609 (1978) (plurality opinion), and Eddings v. Oklahoma , 455 U.S. 104 , 113–115 (1982). Those capital cases require sentencers to consider relevant mitigating circumstances when deciding whether to impose the death penalty. And those cases afford sentencers wide discretion in determining “the weight to be given relevant mitigating evidence.” Id., at 114–115. But those cases do not require the sentencer to make any particular factual finding regarding those mitigating circumstances. Repeatedly citing Woodson , Lockett , and Eddings , the Miller Court stated that “a judge or jury must have the opportunity to consider” the defendant’s youth and must have “discretion to impose a different punishment” than life without parole. 567 U. S., at 489; id., at 465; see id., at 470, 476, 483. Stated otherwise, the Miller Court mandated “only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence. Id., at 483. In that process, the sentencer will consider the murderer’s “diminished culpability and heightened capacity for change.” Id., at 479. That sentencing procedure ensures that the sentencer affords individualized “consideration” to, among other things, the defendant’s “chronological age and its hallmark features.” Id. , at 477. To be sure, Miller also cited Roper and Graham . 567 U. S. , at 471–475. Roper barred capital punishment for offenders under 18. And Graham barred life without parole for offenders under 18 who committed non-homicide offenses. But Miller did not cite those cases to require a finding of permanent incorrigibility or to impose a categorical bar against life without parole for murderers under 18. We know that because Miller said so: “Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham .” 567 U. S., at 483. Instead, Miller cited Roper and Graham for a simple proposition: Youth matters in sentencing. And because youth matters, Miller held that a sentencer must have discretion to consider youth before imposing a life-without-parole sentence, just as a capital sentencer must have discretion to consider other mitigating factors before imposing a death sentence. In short, Miller followed the Court’s many death penalty cases and required that a sentencer consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence. Miller did not require the sentencer to make a separate finding of permanent incorrigibility before imposing such a sentence. And Montgomery did not purport to add to Miller ’s requirements.[ 3 ] Second , Jones contends that the Montgomery Court must nonetheless have assumed that a separate factual finding of permanent incorrigibility was necessary because Montgomery deemed Miller a substantive holding for purposes of applying Miller retroactively on collateral review. See Teague v. Lane , 489 U.S. 288 , 310–311 (1989) (plurality opinion). In advancing that argument, Jones relies on language in Montgomery that described Miller as permitting life-without-parole sentences only for “those whose crimes reflect permanent incorrigibility,” rather than “transient immaturity.” 577 U. S., at 209. In other words, because the Montgomery Court deemed Miller to be a substantive holding, and because Montgomery said that life without parole would be reserved for the permanently incorrigible, Jones argues that the Montgomery Court must have envisioned a separate factual finding of permanent incorrigibility, not just a discretionary sentencing procedure where youth would be considered. That is an incorrect interpretation of Miller and Montgomery . We know as much because Montgomery said as much. To reiterate, the Montgomery Court explicitly stated that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211. To break it down further: Miller required a discretionary sentencing procedure. The Court stated that a mandatory life-without-parole sentence for an offender under 18 “poses too great a risk of disproportionate punishment.” 567 U. S., at 479. Despite the procedural function of Miller ’s rule, Montgomery held that the Miller rule was substantive for retroactivity purposes and therefore applied retroactively on collateral review. 577 U. S., at 206, 212.[ 4 ] But in making the rule retroactive, the Montgomery Court unsurprisingly declined to impose new requirements not already imposed by Miller . As Montgomery itself explained, the Court granted certiorari in that case not to consider whether the rule announced in Miller should be expanded, but rather simply to decide whether Miller ’s “holding is retroactive to juvenile offenders whose convictions and sentences were final when Miller was decided.” 577 U. S., at 194. On the question of what Miller required, Montgomery was clear: “A hearing where youth and its attendant characteristics are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” Id., at 210 (internal quotation marks omitted). But a separate finding of permanent incorrigibility “is not required.” Id., at 211. The key assumption of both Miller and Montgomery was that discretionary sentencing allows the sentencer to consider the defendant’s youth, and thereby helps ensure that life-without-parole sentences are imposed only in cases where that sentence is appropriate in light of the defendant’s age. If the Miller or Montgomery Court wanted to require sentencers to also make a factual finding of permanent incorrigibility, the Court easily could have said so—and surely would have said so. But the Court did not say that, or anything like it. On the contrary, the Montgomery Court declared just the opposite: that the sentencer need not make such a separate factual finding of permanent incorrigibility. In short, Jones’s Montgomery -based argument for requiring a finding of permanent incorrigibility is unavailing because Montgomery explicitly stated that “ Miller did not impose a formal factfinding requirement” and that “a finding of fact regarding a child’s incorrigibility . . . is not required.” Montgomery , 577 U. S., at 211. Third , Jones relatedly argues that Miller and Montgomery sought to ensure that life without parole for murderers under 18 would be relatively rare. According to Jones, a separate factual finding of permanent incorrigibility is necessary to achieve that goal. But in Miller , the Court stated that a discretionary sentencing procedure—where the sentencer can consider the defendant’s youth and has discretion to impose a lesser sentence than life without parole—would itself help make life-without-parole sentences “relatively rar[e ]” for murderers under 18. 567 U. S., at 484, n. 10. Importantly, in concluding that a discretionary sentencing procedure would help make life-without-parole sentences relatively rare, the Court relied on data, not speculation. The Court pointed to statistics from 15 States that used discretionary sentencing regimes to show that, “when given the choice, sentencers impose life without parole on children relatively rarely.” Ibid .[ 5 ] In light of those statistics, the Court reasoned that a discretionary sentencing procedure would make life-without-parole sentences relatively rare for juvenile offenders. But the Court did not suggest that the States with discretionary sentencing regimes also required a separate factual finding of permanent incorrigibility, or that such a finding was necessary to make life-without-parole sentences for juvenile offenders relatively rare. Therefore, to remain true to Miller ’s reasoning, we cannot now require a separate factual finding of permanent incorrigibility. (Moreover, to reiterate, Montgomery explicitly stated that such a finding is not required.) In sum, the Court has unequivocally stated that a separate factual finding of permanent incorrigibility is not required before a sentencer imposes a life-without-parole sentence on a murderer under 18. To borrow the apt words of the Michigan Supreme Court: “Given that Montgomery expressly held that ‘ Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility,’ we likewise hold that Miller does not require trial courts to make a finding of fact regarding a child’s incorrigibility.” People v. Skinner , 502 Mich. 89, 122, 917 N.W.2d 292, 309 (2018) (citation omitted). B Even if a separate factual finding of permanent incorrigibility is not required, Jones alternatively contends that a sentencer must at least provide an on-the-record sentencing explanation with an “implicit finding” of permanent incorrigibility. Tr. of Oral Arg. 32; see id., at 6, 14. Jones argues that such an explanation is necessary to ensure that the sentencer actually considers the defendant’s youth. And Jones further asserts that the sentencing judge did not provide such an explanation at his resentencing. We reject Jones’s alternative argument because an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility (i) is not necessary to ensure that a sentencer considers a defendant’s youth, (ii) is not required by or consistent with Miller , (iii) is not required by or consistent with this Court’s analogous death penalty precedents, and (iv) is not dictated by any consistent historical or contemporary sentencing practice in the States. First , and most fundamentally, an on-the-record sentencing explanation is not necessary to ensure that a sentencer considers a defendant’s youth. Jones’s argument to the contrary rests on the assumption that meaningful daylight exists between (i) a sentencer’s discretion to consider youth, and (ii) the sentencer’s actual consideration of youth. But if the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defendant’s youth, especially if defense counsel advances an argument based on the defendant’s youth. Faced with a convicted murderer who was under 18 at the time of the offense and with defense arguments focused on the defendant’s youth, it would be all but impossible for a sentencer to avoid considering that mitigating factor.[ 6 ] It is true that one sentencer may weigh the defendant’s youth differently than another sentencer or an appellate court would, given the mix of all the facts and circumstances in a specific case. Some sentencers may decide that a defendant’s youth supports a sentence less than life without parole. Other sentencers presented with the same facts might decide that life without parole remains appropriate despite the defendant’s youth. But the key point remains that, in a case involving a murderer under 18, a sentencer cannot avoid considering the defendant’s youth if the sentencer has discretion to consider that mitigating factor.[ 7 ] Second , turning to precedent, an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility is not required by or consistent with Miller . The Court’s thorough opinion in Miller did not even hint at requiring an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility. Miller highlighted 15 existing discretionary state sentencing systems as examples of what was missing in the mandatory Alabama regime before the Court in that case. 567 U. S., at 484, n. 10. As the Court explained, those discretionary sentencing regimes ensured individualized consideration of youth. But the Court did not suggest that those discretionary sentencing regimes required some kind of sentencing explanation. Again, if the Miller Court believed that a sentencing explanation with an implicit finding of permanent incorrigibility was constitutionally necessary, the Court easily could have and surely would have said so. But Miller did not say a word about requiring some kind of particular sentencing explanation with an implicit finding of permanent incorrigibility, as Montgomery later confirmed. Third , and just as telling, an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility is not required by or consistent with this Court’s death penalty cases. Those cases demonstrate that an on-the-record sentencing explanation is not necessary to ensure that the sentencer considers relevant mitigating circumstances. In a series of capital cases over the past 45 years, the Court has required the sentencer to consider mitigating circumstances when deciding whether to impose the death penalty. See Woodson , 428 U. S., at 303–305 (plurality opinion); Lockett , 438 U. S., at 597–609 (plurality opinion); Eddings , 455 U. S., at 113–115; see also Tennard v. Dretke , 542 U.S. 274 , 285 (2004); Penry v. Lynaugh , 492 U.S. 302 , 318–319 (1989). But the Court has never required an on-the-record sentencing explanation or an implicit finding regarding those mitigating circumstances. The reason is evident: Under the discretionary death penalty sentencing procedure required by cases such as Woodson , Lockett , and Eddings , the sentencer will necessarily consider relevant mitigating circumstances. A sentencing explanation is not necessary to ensure that the sentencer in death penalty cases considers the relevant mitigating circumstances. It follows that a sentencing explanation is likewise not necessary to ensure that the sentencer in juvenile life-without-parole cases considers the defendant’s youth. Because the Constitution does not require an on-the- record explanation of mitigating circumstances by the sentencer in death penalty cases , it would be incongruous to require an on-the-record explanation of the mitigating circumstance of youth by the sentencer in life-without-parole cases . Jones offers no persuasive answer for that incongruity in his argument. Fourth , an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility is not dictated by any historical or contemporary sentencing practice in the States. To be sure, when a state judge imposes a sentence of imprisonment, particularly a lengthy sentence, the judge often will explain both the sentence and the judge’s evaluation of any mitigating circumstances. But many States traditionally have not legally required (and some States still do not legally require) on-the-record explanations by the sentencer. See, e.g., A. Campbell, Law of Sentencing §10:5, pp. 473–480 (3d ed. 2004) (hereinafter Campbell). Indeed, in some States, the jury is the sentencer for certain kinds of crimes, and juries typically do not supply sentencing explanations. See generally King & Noble, Felony Jury Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885 (2004). Even when state law requires a sentencer to supply reasons, many States do not impose a formulaic checklist of topics or a magic-words requirement with respect to particular mitigating circumstances. And appellate courts do not necessarily reverse merely because the sentencer could have said more about mitigating circumstances. See Campbell 477; 22A Cal. Jur. 3d, Crim. Law: Posttrial Proceedings §408, p. 234 (2017) (“[U]nless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules”). Those state practices matter here because, as the Court explained in Montgomery , when “a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States’ sovereign administration of their criminal justice systems.” 577 U. S., at 211. So it is here. Because Montgomery directs us to “avoid intruding more than necessary” upon the States, ibid. , and because a discretionary sentencing procedure suffices to ensure individualized consideration of a defendant’s youth, we should not now add still more procedural requirements. In sum, Jones’s alternative argument fails. The Court’s precedents do not require an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility. III The Court’s decision today carefully follows both Miller and Montgomery . The dissent nonetheless claims that we are somehow implicitly overruling those decisions. We respectfully but firmly disagree: Today’s decision does not overrule Miller or Montgomery . Miller held that a State may not impose a mandatory life-without-parole sentence on a murderer under 18. Today’s decision does not disturb that holding. Montgomery later held that Miller applies retroactively on collateral review. Today’s decision likewise does not disturb that holding. We simply have a good-faith disagreement with the dissent over how to interpret Miller and Montgomery . That kind of debate over how to interpret relevant precedents is commonplace. Here, the dissent thinks that we are unduly narrowing Miller and Montgomery . And we, by contrast, think that the dissent would unduly broaden those decisions. The dissent draws inferences about what, in the dissent’s view, Miller and Montgomery “must have done” in order for the decisions to “make any sense.” Post , at 12 (opinion of Sotomayor, J.). We instead rely on what Miller and Montgomery said—that is, their explicit language addressing the precise question before us and definitively rejecting any requirement of a finding of permanent incorrigibility. Notwithstanding our disagreement about whether Miller and Montgomery require a finding of permanent incorrigibility, we and the dissent both recognize that Miller and Montgomery have been consequential. Miller ’s discretionary sentencing procedure has resulted in numerous sentences less than life without parole for defendants who otherwise would have received mandatory life-without-parole sentences. For example, in Miller resentencings in Mississippi where Jones was convicted and sentenced, Miller has reduced life-without-parole sentences for murderers under 18 by about 75 percent. See The Campaign for the Fair Sentencing of Youth, Tipping Point: A Majority of States Abandon Life-Without-Parole Sentences for Children 7 (2018). Those statistics bear out Miller ’s prediction: A discretionary sentencing procedure has indeed helped make life-without-parole sentences for offenders under 18 “relatively rar[e ].” 567 U. S., at 484, n. 10. Moreover, as a result of Montgomery , many homicide offenders under 18 who received life-without-parole sentences that were final before Miller have now obtained new sentencing proceedings and have been sentenced to less than life without parole. Despite the significant changes wrought by Miller and Montgomery , the dissent now wants more—an additional constitutional requirement that the sentencer must make a finding of permanent incorrigibility before sentencing a murderer under 18 to life without parole. But to reiterate, in Miller and Montgomery , the Court unequivocally stated that such a finding is not required. And we will not now rewrite those decisions to impose a requirement that the Court twice rejected. To be clear, our ruling on the legal issue presented here should not be construed as agreement or disagreement with the sentence imposed against Jones. As this case again demonstrates, any homicide, and particularly a homicide committed by an individual under 18, is a horrific tragedy for all involved and for all affected. Determining the proper sentence in such a case raises profound questions of morality and social policy. The States, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws. And state sentencing judges and juries then determine the proper sentence in individual cases in light of the facts and circumstances of the offense, and the background of the offender. Under our precedents, this Court’s more limited role is to safeguard the limits imposed by the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Court’s precedents require a discretionary sentencing procedure in a case of this kind. The resentencing in Jones’s case complied with those precedents because the sentence was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones’s youth. Moreover, this case does not properly present—and thus we do not consider—any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence. See Brief for United States as Amicus Curiae 23; Harmelin v. Michigan , 501 U.S. 957 , 996–1009 (1991) (Kennedy, J., concurring in part and concurring in judgment). Importantly, like Miller and Montgomery , our holding today does not preclude the States from imposing additional sentencing limits in cases involving defendants under 18 convicted of murder. States may categorically prohibit life without parole for all offenders under 18. Or States may require sentencers to make extra factual findings before sentencing an offender under 18 to life without parole. Or States may direct sentencers to formally explain on the record why a life-without-parole sentence is appropriate notwithstanding the defendant’s youth. States may also establish rigorous proportionality or other substantive appellate review of life-without-parole sentences. All of those options, and others, remain available to the States. See generally J. Sutton, 51 Imperfect Solutions (2018). Indeed, many States have recently adopted one or more of those reforms. See, e.g., Brief for Former West Virginia Delegate John Ellem et al. as Amici Curiae in Mathena v. Malvo , O. T. 2019, No. 18–217, pp. 29–36. But the U. S. Constitution, as this Court’s precedents have interpreted it, does not demand those particular policy approaches. Finally, our holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor. Those state avenues for sentencing relief remain open to Jones, and they will remain open to him for years to come. *  *  * We affirm the judgment of the Mississippi Court of Appeals. It is so ordered. Notes 1 Both Miller and Montgomery generated vigorous dissents. The dissents in Miller stated that the Eighth Amendment does not prohibit mandatory life-without-parole sentences and asserted that the Court’s decision contravened this Court’s precedents. See 567 U. S., at 493–502 (Roberts, C. J., dissenting); id., at 502–509 (Thomas, J., dissenting); id., at 509–515 (Alito, J., dissenting). The lead dissent in Montgomery argued that Miller should not apply retroactively on collateral review. 577 U. S., at 224–227 (Scalia, J., dissenting). 2 The key paragraph from Montgomery is as follows: “Louisiana suggests that Miller cannot have made a constitutional distinction between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption because Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility. That this finding is not required, however, speaks only to the degree of procedure Miller mandated in order to implement its substantive guarantee. When a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States’ sovereign administration of their criminal justice systems. See Ford v. Wainwright , 477 U.S. 399 , 416–417 (1986) (“[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences”). Fidelity to this important principle of federalism, however, should not be construed to demean the substantive character of the federal right at issue. That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.” 577 U. S., at 211. 3 If permanent incorrigibility were a factual prerequisite to a life-without-parole sentence, this Court’s Sixth Amendment precedents might require that a jury, not a judge, make such a finding. See Ring v. Arizona , 536 U.S. 584 (2002); Apprendi v. New Jersey , 530 U.S. 466 (2000). If we were to rule for Jones here, the next wave of litigation would likely concern the scope of the jury right. The fact that neither Miller nor Montgomery even mentioned the Sixth Amendment is further reason to doubt that those cases implicitly required a finding of permanent incorrigibility by the sentencer. 4 As the Court has stated in cases both before and after Montgomery , the Court determines whether a rule is substantive or procedural for retroactivity purposes “by considering the function of the rule” itself—not “by asking whether the constitutional right underlying the new rule is substantive or procedural.” Welch v. United States , 578 U.S. 120, 130–131 (2016). For purposes of Teague v. Lane , 489 U.S. 288 (1989), a rule is procedural if it regulates “ ‘only the manner of determining the defendant’s culpability.’ ” Welch , 578 U. S., at 129 (quoting Schriro v. Summerlin , 542 U.S. 348 , 353 (2004); emphasis deleted). A rule is substantive and applies retroactively on collateral review, by contrast, if it “ ‘alters the range of conduct or the class of persons that the law punishes.’ ” Welch , 578 U. S., at 129 (quoting Summerlin , 542 U. S., at 353). As the Court’s post- Montgomery decision in Welch already indicates, to the extent that Montgomery ’s application of the Teague standard is in tension with the Court’s retroactivity precedents that both pre-date and post-date Montgomery , those retroactivity precedents—and not Montgomery —must guide the determination of whether rules other than Miller are substantive. See Welch , 578 U.S. 120; Summerlin , 542 U.S. 348 ; Lambrix v. Singletary , 520 U.S. 518 (1997); Saffle v. Parks , 494 U.S. 484 (1990). To be clear, however, our decision today does not disturb Montgomery ’s holding that Miller applies retroactively on collateral review. By now, most offenders who could seek collateral review as a result of Montgomery have done so and, if eligible, have received new discretionary sentences under Miller . 5 See Cal. Penal Code Ann. §190.5 (West 2014); Ga. Code Ann. §16–5–1 (2011), §17–10–31 (2013); Ind. Code §35–50–2–3 (2009); Me. Rev. Stat. Ann., Tit. 17–A, §1251 (2006); Md. Crim. Law Code Ann. §§2–201 to 2–203, 2–304 (2012); Nev. Rev. Stat. §200.030 (2012); N. M. Stat. Ann. §§31–18–13, 31–18–14, 31–18–15.2 (2010); N. D. Cent. Code Ann. §§12.1–32–01, 12.1–32–09.1 (2012); Okla. Stat., Tit. 21, §§13.1, 701.9 (2011); R. I. Gen. Laws §11–23–2 (2002); S. C. Code Ann. §16–3–20 (2015); Tenn. Code Ann. §§39–13–202, 39–13–204, 39–13–207 (2018); Utah Code §§76–3–206, 76–3–207 (2012); W. Va. Code Ann. §62–3–15 (Lexis 2014); Wis. Stat. §939.50 (2005), §973.014 (2007). 6 If defense counsel fails to make the sentencer aware of the defendant’s youth, it is theoretically conceivable (albeit still exceedingly unlikely in the real world) that the sentencer might somehow not be aware of the defendant’s youth. But in that highly unlikely scenario, the defendant may have a potential ineffective-assistance-of-counsel claim, not a Miller claim—just as defense counsel’s failure to raise relevant mitigating circumstances in a death penalty sentencing proceeding can constitute a potential ineffective-assistance-of-counsel problem, not a Woodson/Lockett/Eddings violation. Cf. Wiggins v. Smith , 539 U.S. 510 , 533–538 (2003) (counsel in capital case was ineffective for failing to investigate and present mitigating evidence at sentencing); Williams v. Taylor , 529 U.S. 362 , 395–398 (2000) (same). 7 This Court’s death penalty cases recognize a potential Eighth Amendment claim if the sentencer expressly refuses as a matter of law to consider relevant mitigating circumstances. See Eddings v. Oklahoma , 455 U.S. 104 , 114–115 (1982). By analogy here, if a sentencer considering life without parole for a murderer who was under 18 expressly refuses as a matter of law to consider the defendant’s youth (as opposed to, for example, deeming the defendant’s youth to be outweighed by other factors or deeming the defendant’s youth to be an insufficient reason to support a lesser sentence under the facts of the case), then the defendant might be able to raise an Eighth Amendment claim under the Court’s precedents. In any event, we need not explore that possibility because the record here does not reflect that the sentencing judge refused as a matter of law to consider Jones’s youth. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1259 _________________ BRETT JONES, PETITIONER v. MISSISSIPPI on writ of certiorari to the court of appeals of mississippi [April 22, 2021] Justice Thomas, concurring in the judgment. The Court correctly holds that the Eighth Amendment does not require a finding that a minor be permanently incorrigible as a prerequisite to a sentence of life without parole. But in reaching that result, the majority adopts a strained reading of Montgomery v. Louisiana , 577 U.S. 190 (2016), instead of outright admitting that it is irreconcilable with Miller v. Alabama , 567 U.S. 460 (2012)—and the Constitution. The better approach is to be patently clear that Montgomery was a “demonstrably erroneous” decision worthy of outright rejection. Gamble v. United States , 587 U. S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at 2). I Brett Jones, then 15, murdered his grandfather. At the time of his trial and sentencing, Mississippi law automatically punished his crime with life without parole. A few years later, however, this Court held that youthful offenders are constitutionally entitled to an “individualized sentencing” process. Miller , 567 U. S., at 465. The Mississippi Supreme Court thus ordered a new hearing at which the judge dutifully considered the factors “relevant to [Jones’] culpability” before again sentencing him to life without parole. App. 149. Jones appealed, citing yet another new decision— Montgomery —in which this Court held that Miller ’s rule was “substantive” and hence had to be retroactively applied to cases on collateral review. 577 U. S., at 212. Without more, the fact that Miller was now retroactive did not help Jones, as he had already received the “individualized” hearing Miller required. 567 U. S., at 465. Therefore, Jones argued that Montgomery further required the sentencing judge to “make a specific ‘finding’ that he is irretrievably depraved, irreparably corrupt, or permanently incorrigible.” 285 So. 3d 626, 632 (Miss. App. 2017). That theory was not necessarily a stretch—as Montgomery explained that a life-without-parole sentence “violates the Eighth Amendment for a child whose crime reflects ‘ “unfortunate yet transient immaturity.” ’ ” 577 U. S., at 208. But the Mississippi Court of Appeals disagreed, noting that Montgomery also “stated that ‘ Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility’ [or] ‘impose a formal factfinding requirement.’ ” 285 So. 3d, at 632. II Miller and Montgomery are from the same lineage of precedent that refashions the Eighth Amendment to accommodate this Court’s views of juvenile justice.[ 1 ] The similarities end there, however, because the decisions cannot be reconciled. A Miller announced a purely procedural rule: A State may not automatically sentence a juvenile to life without parole, but must instead provide an individualized sentencing process. In reaching this conclusion, the Court explicitly cabined its holding to cases in which the sentencer lacked “discretion to impose a different punishment.” Miller , 567 U. S., at 465; accord, e.g., id., at 479–480. Were there any doubt that Miller focused only on the availability of individualized sentencing, the Court stressed that it was “not categorically bar[ring] a penalty for a class of offenders or type of crime” but instead “mandat[ing] only that a sentencer follow a certain process.” Id. , at 483. Miller ’s descriptions of its procedural holding track with the opinion’s mode of analysis. At one point, for example, Miller discussed a line of precedents that condition the death penalty on an individualized sentencing process. Id., at 475–476. Reasoning by analogy, the Court explained that “mandatory penalties” for juveniles “preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” Id. , at 476. The Court also canvassed the jurisdictions that had some form of mandatory life-without-parole, id. , at 482–487, and nn. 9–10, 13–14, which would have been an unusual detour if the opinion were concerned with anything more than nondiscretionary punishments. And it declined to “consider [the] alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles.” Id., at 479. B This narrow holding became inconvenient when the Court decided to apply Miller retroactively to prisoners whose sentences were already final. Under the approach announced in Teague v. Lane , 489 U.S. 288 (1989), Miller could have been retroactive only if it were a “watershed” rule of criminal procedure or a “substantive” rule, Beard v. Banks , 542 U.S. 406 , 416–419, and n. 7 (2004). Precedent foreclosed the first option. Miller “mandate[d] only that a sentencer follow a certain process” as a prerequisite to life without parole, 567 U. S., at 483, but this directive was hardly “watershed.” According to Teague , a procedural rule might have a claim to watershed status if it were “ ‘ “implicit in the concept of ordered liberty.” ’ ” Banks , 542, U. S., at 417. So limited was this possibility that, in “ ‘the years since Teague , we . . . rejected every claim that a new rule satisfied the requirements for watershed status.’ ” Ramos v. Louisiana , 590 U. S. ___, ___ (2020) (Kavanaugh, J., concurring in part) (slip op., at 16). Or in more concrete terms, we repeatedly suggested that a rule might be watershed only if it were akin to a defendant’s right to counsel as articulated in Gideon v. Wainwright , 372 U.S. 335 (1963). See Banks , 542 U. S., at 417–418. Whatever Miller might have done, its narrow rule about juvenile sentencing “ ‘ha[d] none of the primacy and centrality of the rule adopted in Gideon .’ ” Banks , 542 U. S., at 420. Rather than accept what was plainly the case—that Miller was procedural, not watershed, and thus not retroactive— Montgomery proceeded to “rewrite” it into a substantive rule. 577 U. S., at 224 (Scalia, J., dissenting). Despite acknowledging that “ Miller ’s holding has a procedural component,” the majority explained that this procedure was actually just a way “to implement a substantive guarantee.” Id. , at 209–210. This guarantee, according to Montgomery , was that “all” juvenile offenders—except for a rare few “whose crimes reflect permanent incorrigibility”—are categorically exempt from life without parole. Id. , at 209. That reimagined rule was substantive under our precedents. Substantive rules include those that “ ‘prohibi[t ] a certain category of punishment for a class of defendants because of their status or offense.’ ” Banks , 542 U. S., at 416. For example—a rule that “life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” Montgomery , 577 U. S., at 210. Montgomery could not have been clearer that its rule transcended mere procedure: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘ “unfortunate yet transient immaturity.” ’ ” Id., at 208. The problem with this new rule is that it had little to do with Miller . Through a feat of legerdemain, Montgomery began by acknowledging that Miller did “ ‘not categorically bar a penalty for a class of offenders or type of crime,’ ” yet just three sentences later concluded that “ Miller did bar life without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 577 U. S., at 209. In a similar Janus-faced demonstration, Montgomery reiterated Miller ’s assurance that “trial courts [need not] make a finding of fact regarding a child’s incorrigibility,” yet decided that “ Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption.” 577 U. S., at 209–211.[ 2 ] These statements cannot be reconciled. C Just as the procedural rule of Miller created problems for the majority in Montgomery , the substantive rule of Montgomery creates problems for the majority in this case. If Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental constitutional law—are categorically exempt from a sentence of life without parole, then there must be a determination as to whether Jones falls within that protected class. Otherwise, the “line” Miller ostensibly “drew . . . between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption” is more fanciful than real. Montgomery , 577 U. S., at 209. Sure enough, this Court has often demanded factual findings when it comes to other classes of criminals that this Court has declared categorically exempt from certain punishments. See, e.g., Moore v. Texas , 586 U. S. ___, ___ (2019) ( per curiam ) (slip op., at 10) (finding that an offender “ha[d] shown [that] he is a person with intellectual disability”); Madison v. Alabama , 586 U. S. ___, ___, ___–___ (2019) (slip op., at 8, 17–18) (vacating and remanding “for renewed consideration” of the record after a state court “found [a prisoner] mentally competent” and thus eligible for execution). I doubt that a majority of this Court would tolerate the execution of an offender who alleges insanity or intellectual disability absent a satisfactory finding to the contrary. In response, the majority suggests that insanity and intellectual disability are legitimate “eligibility criteri[a]” because they are easy to evaluate, whereas “permanent incorrigibility . . . ‘is difficult even for expert psychologists to [assess].’ ” Ante , at 8. This notion that the former categories are clear cut and predictable might come as news to the States that have spent years chasing the ever-evolving definitions of mental incompetence promulgated by this Court and its preferred experts. See, e.g. , Moore , 586 U. S., at ___–___ (slip op., at 2–10); Moore v. Texas , 581 U. S. ___, ___, ___–___ (2017) (slip op., at 2, 5–18) (courts must heed “the force of the medical community’s consensus”); Hall v. Florida , 572 U.S. 701 , 724 (2014). I trust, however, that future decisions will contain simple and static rules. D Montgomery ’s creation of a categorical exemption for certain offenders thus leaves us with two obvious options. First, we could follow Montgomery ’s logic and hold that the “legality” of Jones’ sentence turns on whether his crime in fact “reflect[s] permanent incorrigibility.” 577 U. S., at 205, 209. Or we could just acknowledge that Montgomery had no basis in law or the Constitution. The majority, however, selects a third way: Overrule Montgomery in substance but not in name. The opinion candidly admits both that Miller ’s rule was “procedural” and that Montgomery “ma[de] the rule retroactive.” Ante, at 9, 11–12. The only way to reconcile these statements with the bottom-line judgment in this case—that Jones is not entitled to a determination whether he falls within a constitutionally protected category of offenders—is to reject Montgomery . And sure enough, the majority does just that, albeit in a footnote. See ante , at 12, n. 4 (explaining that Montgomery is “in tension” with many other decisions). But because Montgomery ’s freewheeling approach to the law is ripe for abuse, the majority’s whisper is worth restating above the line: Montgomery gave a good-for-one-ride ticket to a class of juvenile offenders, and its errors will never be repeated. Firm condemnation of Montgomery is particularly appropriate because this Court is unable to fully repair the damage it has caused. Although the majority closes the door to courts following Montgomery in the future, in doing so it tacitly admits that the horses have already left the barn: “[M]ost offenders who could seek collateral review as a result of Montgomery have done so.” Ante , at 12, n. 4. Today’s judgment thus offers cold comfort to the States that have already faced the unenviable choice between “permitting juvenile homicide offenders to be considered for parole” and relitigating murder sentences long after the fact. Montgomery , 577 U. S., at 212; see also id. , at 226–227 (Scalia, J., dissenting). The least we can do is to fully own up to Montgomery ’s sins. The majority also largely leaves untouched Montgomery ’s violation of the rule that the Constitution “ ‘ leaves the unavoidably moral question of who “deserves” a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty. ’ ” Miller , 567 U. S., at 504 (Thomas, J., dissenting). When the Eighth Amendment was enacted, juveniles even younger than Jones could be tried as adults, and mandatory death sentences were available. See id. , at 503, n. 2. “It is therefore implausible that a [15]-year-old’s . . . prison sentence—of any length, with or without parole—would have been viewed as cruel and unusual.” Ibid. By failing to condemn Montgomery ’s expansion of Miller to an entire category of individuals, the majority blesses yet another step “on the path to further judicial displacement of the legislative role in prescribing appropriate punishment for crime.” 567 U. S., at 500 (Roberts, C. J., dissenting). Finally, I would expressly reject the portion of Montgomery that “purported to constitutionalize” the substantive exception “so that it would apply in [the petitioner’s] state court proceeding.” Brief for Jonathan F. Mitchell et al. as Amici Curiae in Edwards v. Vannoy , O. T. 2020, No. 19–5807, pp. 5–6 (emphasis deleted). Despite this Court’s longstanding recognition that “the Constitution neither prohibits nor requires retrospective effect,” Linkletter v. Walker , 381 U.S. 618 , 629 (1965); cf. Teague , 489 U. S., at 302–310 (plurality opinion) (narrowing Linkletter even further), the Montgomery Court demanded that the Louisiana courts “recognize [ Miller ’s] retroactive effect.” 577 U. S., at 200, 205. That improper intrusion on state postconviction review is also worth correcting. *  *  * Today’s majority labors mightily to avoid confronting the tension between Miller and Montgomery . But though the Court purports to leave Montgomery ’s holding intact, it recognizes that Montgomery ’s analysis is untenable and not to be repeated. It would be simpler to reject Montgomery in both name and substance. Notes 1 See, e.g., Roper v. Simmons , 543 U.S. 551 , 556, 578 (2005) (prohibiting the execution of a (barely) juvenile murderer who had bragged that his age would allow him to “ ‘get away with it’ ”); Graham v. Florida , 560 U.S. 48 , 74 (2010) (prohibiting life-without-parole sentences for juvenile nonhomicide offenders). 2 The Court’s language in this line of precedents is notable. When addressing juvenile murderers, this Court has stated that “ ‘ children are different’ ” and that courts must consider “a child ’s lesser culpability.” Montgomery , 577 U. S., at 207–208 (emphasis added). And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a “young woman ’s” right to choose. See, e.g. , Lambert v. Wicklund , 520 U.S. 292 , 301 (1997) (Stevens, J., joined by Ginsburg and Breyer, JJ., concurring in judgment) (emphasis added); Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833 , 899 (1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.); Ohio v. Akron Center for Reproductive Health , 497 U.S. 502 , 532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). It is curious how the Court’s view of the maturity of minors ebbs and flows depending on the issue. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1259 _________________ BRETT JONES, PETITIONER v. MISSISSIPPI on writ of certiorari to the court of appeals of mississippi [April 22, 2021] Justice Sotomayor, with whom Justice Breyer and Justice Kagan join, dissenting. Today, the Court guts Miller v. Alabama , 567 U.S. 460 (2012), and Montgomery v. Louisiana , 577 U.S. 190 (2016). Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery , 577 U. S., at 209. Even if the juvenile’s crime reflects “ ‘unfortunate yet transient immaturity,’ ” Miller , 567 U. S., at 479, he can be sentenced to die in prison. This conclusion would come as a shock to the Courts in Miller and Montgomery . Miller ’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’ ” Montgomery , 577 U. S., at 195 (quoting Miller , 567 U. S., at 479–480). Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery , 577 U. S., at 210, but it is far from sufficient. A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence. Miller , 567 U. S., at 480. The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Montgomery , 577 U. S., at 208 (internal quotation marks omitted). Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Ante, at 11. Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana , 590 U. S. ___, ___ (2020) (Kavanaugh, J., concurring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none. Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery .” Ante, at 19. The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery , I dissent. I Time and again, this Court has recognized that “children are constitutionally different from adults for purposes of sentencing.” Miller , 567 U. S., at 471. In Roper v. Simmons , 543 U.S. 551 (2005), the Court held that the Eighth Amendment forbids sentencing children to death because “[c]apital punishment must be limited to those offenders . . . whose extreme culpability makes them the most deserving of execution.” Id., at 568 (internal quotation marks omitted). Juvenile offenders “cannot with reliability be classified among the worst offenders” for several reasons. Id., at 569. First, “as any parent knows,” and as scientific and sociological studies have confirmed, juveniles are less mature and responsible than adults, which “often result[s] in impetuous and ill-considered actions and decisions.” Ibid. (internal quotation marks omitted). Second, juveniles are “more vulnerable or susceptible to negative influences and outside pressures” and “have less control . . . over their own environment.” Ibid. Finally, “the character of a juvenile” is “more transitory” than that of an adult. Id., at 570. “[A]s individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.” Ibid. (internal quotation marks omitted). Weighed against these “signature qualities of youth,” the penological justifications for the death penalty collapse. Id., at 570–571 (internal quotation marks omitted). Next, in Graham v. Florida , 560 U.S. 48 (2010), this Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Id., at 82. “To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible.” Id., at 72. But “incorrigibility is inconsistent with youth.” Id., at 73 (internal quotation marks omitted). Rather, “[m]aturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation.” Id., at 79. Graham therefore insisted that sentencers not deprive juvenile nonhomicide offenders “of the opportunity to achieve maturity . . . and self-recognition of human worth and potential” by sentencing them to die in prison. Ibid . In Miller , this Court extended Graham ’s logic to juveniles convicted of homicide. Miller recognized that “none of what [ Graham ] said about children . . . is crime-specific.” 567 U. S., at 473. Thus, taking Graham as its “foundation stone,” Miller reiterated that “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 567 U. S., at 470–471, n. 4, 472. Miller emphasized that LWOP is an “ ‘especially harsh punishment for a juvenile.’ ” Id . , at 475 (quoting Graham , 560 U. S., at 70). “Imprisoning an offender until he dies alters the remainder of his life ‘by a forfeiture that is irrevocable.’ ” 567 U. S., at 474–475 (quoting Graham , 560 U. S., at 69). It is the “denial of hope” itself. Id., at 70 (internal quotation marks omitted). Miller stopped short of prohibiting LWOP for all juveniles convicted of homicide. Instead, it required sentencers to distinguish “between the juvenile offender whose crime reflects unfortunate and transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” 567 U. S., at 479–480 (internal quotation marks omitted). Only those rare few in the latter category are constitutionally eligible for LWOP under Miller . As such, before imposing a sentence of LWOP, a sentencer must actually “make that judgment,” and make it correctly. Id., at 480; see Adams v. Alabama , 578 U.S. 994, 999 (2016) (Sotomayor, J., concurring in decision to grant, vacate, and remand). Finally, in Montgomery , this Court confirmed the substantive nature of Miller ’s prohibition on LWOP for most juveniles. Montgomery held that Miller applies retroactively in cases on collateral review because it “rendered life without parole an unconstitutional penalty for . . . juvenile offenders whose crimes reflect the transient immaturity of youth.” 577 U. S., at 208. Under the retroactivity doctrine in Teague v. Lane , 489 U.S. 288 (1989), a new constitutional rule is considered “substantive,” and thus retroactive, if it “alters the range of conduct or the class of persons that the law punishes.” Montgomery , 577 U. S., at 206 (internal quotation marks omitted); see Teague , 489 U. S., at 311 (plurality opinion). A procedural rule, on the other hand, “regulate[s] only the manner of determining the defendant’s culpability.” Montgomery , 577 U. S., at 206 (emphasis deleted; internal quotation marks omitted). Such rules generally have not applied retroactively. Id., at 198. Montgomery recognized that Miller “has a procedural component,” in that “[a] hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” 577 U. S., at 209–210 (quoting Miller , 567 U. S., at 465). The Court made clear, however, that “[t]he hearing does not replace . . . Miller ’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” 577 U. S., at 210. Rather, the hearing “gives effect” to Miller ’s prohibition on LWOP by “enabl[ing] a prisoner to show that he falls within the category of persons whom the law may no longer punish [with LWOP].” 577 U. S., at 210. Thus, under Miller , juvenile offenders “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” 577 U. S., at 213. II A Today, the Court distorts Miller and Montgomery beyond recognition. According to the majority, “a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient” for a State to sentence a juvenile convicted of homicide to LWOP. Ante, at 5. “[S]o long as the sentencer has discretion to ‘consider the mitigating qualities of youth’ and impose a lesser punishment,” any juvenile convicted of homicide may be sentenced to LWOP, even if his crime reflects transient immaturity. Ante, at 7 (quoting Miller , 567 U. S., at 476). It does not matter whether the sentencer meaningfully considers youth: The Court assumes it will, see ante, at 15, but ultimately, the mere existence of “a discretionary sentencing procedure suffices,” ante, at 19. The Court rests its conclusion on Montgomery ’s modest statement that “ Miller did not impose a formal factfinding requirement,” and so “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U. S., at 211. This statement is the linchpin of the Court’s opinion. See ante, at 2, 5, 7, 11–14. As the Court quietly admits in a footnote, however, Montgomery went on to clarify that the fact “[t]hat Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.” Montgomery , 577 U. S., at 211; see ante, at 7–8, n. 2 (quoting the same). Montgomery was equally explicit elsewhere: “ Miller . . . did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole.” 577 U. S., at 208. Sentencing discretion and “[a] hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors” are necessary to “giv[e] effect to Miller ’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity,” but they “d[o] not replace” it. Id., at 210. “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘ “unfortunate yet transient immaturity.” ’ ” Id., at 208. If a juvenile offender’s crime “did not reflect irreparable corruption,” his “hope for some years of life outside prison walls must be restored.” Id., at 213. The Court today never addresses Montgomery ’s clear articulation of Miller ’s essential holding. The lone statement on which the Court fixates recognizes only that Miller does not mandate a particular procedure for considering a defendant’s youth or explaining the sentencer’s decision. Miller certainly does not require sentencers to invoke any magic words. Using this procedural flexibility, States have adopted different approaches to Miller ’s inquiry. For instance, in some States, the prosecution must prove that a juvenile offender is permanently incorrigible beyond a reasonable doubt; in others, the sentencing judge must make a formal finding of irreparable corruption on the record. See Brief for American Bar Association as Amicus Curiae 14–15, 19–21. As the Court correctly notes, Miller does not require any one of “those particular policy approaches.” Ante, at 22. What is necessary, however, is “that a sentencer decide whether the juvenile offender before it is a child whose crimes reflect transient immaturity or is one of those rare children whose crimes reflect irreparable corruption.” Tatum v. Arizona , 580 U. S. ___, ___ (2016) (Sotomayor, J., concurring in decision to grant, vacate, and remand) (slip op., at 3) (internal quotation marks omitted). That is all petitioner Brett Jones seeks. See Tr. of Oral Arg. 6 (“On the most fundamental level . . . what we need is a sentencing judge who understands that permanent incorrigibility is the dispositive rule and determines whether the defendant fits within that rule. And there are any number of ways that it could be done”); Brief for Petitioner 31 (challenging the “failure to find in any form whether Brett is permanently incorrigible”). As Justice Thomas recognizes, “there must be a determination as to whether Jones falls within th[e] protected class” of children who are ineligible for LWOP. Ante, at 6 (opinion concurring in judgment). Otherwise, the line between those who may be sentenced to LWOP and those who may not “is more fanciful than real.” Ibid. The Court attempts to paper over its mischaracterization of Miller and Montgomery in several ways. First, it claims that Miller barred only “ mandatory life-without-parole sentences,” not “ discretionary life-without-parole sentences.” Ante, at 4. Miller did prohibit mandatory LWOP sentences for juveniles. See 567 U. S., at 465. To say that Miller is limited to mandatory LWOP sentences, however, is to ignore half of its reasoning. Miller relied on “the confluence of . . . two lines of precedent.” Id., at 470. In one line of cases, the Court had interpreted the Eighth Amendment to require that sentencers make individualized, discretionary decisions when imposing the death penalty. For instance, in Lockett v. Ohio , 438 U.S. 586 (1978), a plurality of the Court concluded that “the sentencer, in all but the rarest kind of capital case, [can]not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense.” Id., at 604 (emphasis deleted; footnote omitted). Miller explained that mandatory LWOP sentences violate “individualized sentencing cases” like Lockett because they “preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.” 567 U. S., at 476–477. The Court now pretends that Miller ’s reasoning ended there. It insists that all Miller required was “a sentencing procedure similar to the procedure that this Court has required for the individualized consideration of mitigating circumstances in capital cases such as Woodson v. North Carolina , 428 U.S. 280 , 303–305 (1976) (plurality opinion), Lockett v. Ohio , 438 U.S. 586 , 597–609 (1978) (plurality opinion), and Eddings v. Oklahoma , 455 U.S. 104 , 113–115 (1982).” Ante, at 9. Reading that conclusion, one would expect Miller to have announced that it rested solely on those cases. Miller was clear, however, that it drew primarily from a different line of precedent headed by Roper and Graham , which “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty,” regardless of the procedures used to impose the sentences. Miller , 567 U. S., at 470. These cases set forth a substantive proportionality principle that the individualized-sentencing cases did not: “[L]ife-without-parole sentences, like capital punishment, may violate the Eighth Amendment when imposed on children” because “the characteristics of youth, and the way they weaken rationales for punishment, can render a life-without-parole sentence disproportionate.” Id., at 473. Mandatory and discretionary sentencing schemes alike can produce disproportionate sentences. Regardless of how it is imposed, a juvenile death sentence is unconstitutional under Roper , and a juvenile sentence of LWOP for a nonhomicide offense is unconstitutional under Graham . See Roper , 543 U. S., at 575 (holding “that the death penalty cannot be imposed upon juvenile offenders”); Graham , 560 U. S., at 74 (drawing a “clear line” against “life without parole for juvenile nonhomicide offenders”). So, too, with Miller : No set of discretionary sentencing procedures can render a sentence of LWOP constitutional for a juvenile whose crime reflects “unfortunate yet transient immaturity.” 567 U. S., at 479 (internal quotation marks omitted). The Court claims that Miller relied on Roper and Graham “for a simple proposition: Youth matters in sentencing.” Ante, at 10. That is true, but the Court conflates two ways in which youth matters. When Miller was decided, the Court’s individualized-sentencing cases had already firmly established “that a defendant’s youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury.” Johnson v. Texas , 509 U.S. 350 , 367 (1993); see also Eddings v. Oklahoma , 455 U.S. 104 , 116 (1982) (requiring that sentencers consider “the chronological age of a minor” and “the background and mental and emotional development of a youthful defendant”). The Miller Court thus did not need to cite Roper and Graham as a separate “stran[d] of precedent,” Miller , 567 U. S., at 470, for that long-recognized proposition. It drew on Roper and Graham instead to set a substantive limit on the imposition of LWOP on juvenile offenders, even when they commit homicide. The Court today reverses course and concludes that youth does not matter in this way. Next, the Court exaggerates the meaning of two statements from Miller , arguing that it “mandated ‘only that a sentencer follow a certain process,’ ” rather than “ ‘categorically bar[ring] a penalty for a class of offenders or type of crime[,] as, for example, we did in Roper or Graham .’ ” Ante, at 7, 10 (quoting Miller , 567 U. S., at 483). Again, Montgomery already rejected this misinterpretation: “ Miller , it is true, did not bar a punishment for all juvenile offenders,” or all juvenile offenders convicted of certain crimes, “as the Court did in Roper or Graham .” 577 U. S., at 209. “ Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Ibid. To “separate those juveniles who may be sentenced to life without parole from those who may not,” as Miller requires, sentencers must follow a certain process: conducting a “hearing where ‘youth and its attendant characteristics’ are considered.” 577 U. S., at 210. That process is not an end in itself. Rather, it “gives effect to Miller ’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” Ibid. Finally, the Court argues that Miller offered nothing more than a prediction that “a discretionary sentencing procedure would help make life-without-parole sentences relatively rare.” Ante, at 13. Miller ’s substantive rule was not a prediction. Rather, Miller held that juvenile LWOP sentences must be rare because it is only “the rare juvenile offender whose crime reflects irreparable corruption.” 567 U. S., at 479–480 (internal quotation marks omitted). Simply put, there are very few juveniles for whom the “ ‘signature qualities’ ” of youth do not undermine the penological justifications for LWOP. Id., at 476. Youth is “a time of immaturity, irresponsibility, impetuousness, and recklessness,” and, almost invariably, those “qualities are all transient.” Ibid. (internal quotation marks and brackets omitted). In any event, the data since Miller prove that sentencing discretion alone will not make LWOP a rare sentence for juvenile offenders. Even after Montgomery , Mississippi courts require only that a sentencer consider youth-related factors “in a non-arbitrary fashion” before imposing a sentence of LWOP. See, e.g., Miller v. State , ___ So. 3d ___, ___, 2020 WL 2892820, *5 (Miss. App., June 2, 2020). Unbound by Miller ’s essential holding, more than a quarter of Mississippi’s resentencings have resulted in the reimposition of LWOP. See Brief for Juvenile Law Center et al. as Amici Curiae 20.[ 1 ] Pennsylvania, in contrast, has recognized that “ Miller requires far more than mere consideration of an offender’s age,” as “a life-without-parole sentence imposed on a juvenile is illegal” unless “the defendant will forever be incorrigible, without any hope for rehabilitation.” Commonwealth v. Batts , 640 Pa. 401, 440, 444, 163 A.3d 410, 433, 435 (2017). Pennsylvania has adopted a number of procedures to guide sentencing courts in applying Miller ’s rule, including a presumption against juvenile LWOP that the State must rebut through proof beyond a reasonable doubt. 640 Pa., at 476, 163 A. 3d, at 454–455. Fewer than 2 percent of resentencings in Pennsylvania have resulted in the reimposition of LWOP. See The Campaign for the Fair Sentencing of Youth, Tipping Point: A Majority of States Abandon Life-Without-Parole Sentences for Children 7 (2018) (Tipping Point). These States’ experiences show that juvenile LWOP sentences will not be rare simply by virtue of sentencing discretion. Sentencers will not “necessarily . . . consider the defendant’s youth,” ante, at 15, and they certainly will not necessarily conduct Miller ’s essential inquiry. If sentencing discretion is all that is required, far too many juvenile offenders will be sentenced to die in prison.[ 2 ] B The Court’s misreading of Miller and Montgomery is egregious enough on its own. The Court twists precedent even further, however, by distorting Miller in a way that cannot be reconciled with Montgomery ’s holding that Miller applies retroactively under the Teague doctrine. See ante, at 7 (opinion of Thomas, J.). That doctrine divides new rules of constitutional law into two categories: substantive and procedural. As noted above, Montgomery held that Miller applies retroactively based solely on “ Teague ’s first exception for substantive rules.” 577 U. S., at 200. For Montgomery to make any sense, then, Miller must have done more than mandate a certain procedure. Rather, it “eliminated a State’s power to . . . impose a given punishment.” 577 U. S., at 201.[ 3 ] Today, however, the Court transforms Miller into a decision requiring only a “discretionary sentencing procedure.” Ante, at 19. At the same time, the Court insists that it “does not disturb” Montgomery ’s holding “that Miller applies retroactively on collateral review.” Ante, at 19. In other words, the Court rewrites Miller into a procedural rule and, paradoxically, maintains that Miller was nevertheless “substantive for retroactivity purposes.” Ante, at 11. That explanation undoes Teague ’s distinction between substantive and procedural rules. If a rule that requires only a sentencing procedure is substantive for retroactivity purposes, then this Court has improperly classified numerous sentencing rules as procedural. To take one example, in Mills v. Maryland , 486 U.S. 367 (1988), this Court invalidated a capital sentencing procedure requiring jurors to disregard mitigating factors that were not found unanimously. That holding was procedural because it altered only “the range of permissible methods for determining whether a defendant’s conduct is punishable by death.” Schriro v. Summerlin , 542 U.S. 348 , 353 (2004). Under the Court’s logic today, however, the rule in Mills and other rules of sentencing procedure should have applied retroactively, even though the Court has held that they do not. See Beard v. Banks , 542 U.S. 406 , 416–417 (2004) (holding that Mills announced a procedural rule); Schriro , 542 U. S., at 354 (treating as procedural the rule set forth in Ring v. Arizona , 536 U.S. 584 (2002), that a jury, rather than a judge, must find aggravating circumstances necessary for the imposition of the death penalty). If future litigants make such arguments, it will be because the Court’s contortion of Miller and Montgomery paves the way for them to do so. C Rather than read Miller and Montgomery fairly, the Court reprises Justice Scalia’s dissenting view in Montgomery that Miller requires only a “youth-protective procedure.” 577 U. S., at 225 (emphasis deleted). Justice Scalia’s view did not prevail, however. Montgomery ’s interpretation of Miller is binding precedent, just as Miller itself is. Any doubts the Court may harbor about the merits of those decisions do not justify overruling them. See June Medical Services L. L. C. v. Russo , 591 U. S. ___, ___ (2020) (Roberts, C. J., concurring in judgment) (slip op., at 3) (“[F]or precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly”). As this Court has consistently reiterated, “a departure from precedent demands special justification.” Gamble v. United States , 587 U. S. ___, ___ (2019) (slip op., at 11) (internal quotation marks omitted); accord, Kisor v. Wilkie , 588 U. S. ___, ___–___ (2019) (slip op., at 25–26); Kimble v. Marvel Entertainment, LLC , 576 U.S. 446, 455–456 (2015). The Court offers no such justification today. Nor could it. The traditional stare decisis factors include the quality of the precedent’s reasoning, its consistency with other decisions, legal and factual developments since the precedent was decided, and its workability. See Ramos , 590 U. S., at ___ (opinion of Kavanaugh, J.) (slip op., at 7). None supports overturning Miller or Montgomery . As explained above, those decisions are firmly rooted in two lines of precedent and fundamental principles of proportionality.[ 4 ] Subsequent legal and factual developments have reinforced their reasoning. Fifteen state courts of last resort, for instance, have recognized that Miller announced a substantive rule barring LWOP for any juvenile whose crime does not reflect permanent incorrigibility. See Reply Brief 18, n. 6. Twenty States and the District of Columbia have changed their policies to prohibit LWOP sentences for all juvenile offenders, including a number of States that “had discretionary sentencing schemes or a mixture of both mandatory and discretionary sentences.” Brief for Former West Virginia Delegate John Ellem et al. as Amici Curiae in Mathena v. Malvo , O. T. 2019, No. 18–217, pp. 34–35; S. 256, 133d Gen. Assembly (Ohio 2020); Va. Code Ann. §53.1–165.1 (2020). Finally, Miller and Montgomery have not proved unworkable: To the contrary, they have spurred reforms across the country while “avoid[ing] intruding more than necessary upon the States’ sovereign administration of their criminal justice systems.” Montgomery , 577 U. S., at 211. Requiring sentencers to make an explicit or implicit determination of permanent incorrigibility before sentencing a juvenile offender to LWOP imposes no costs that justify overturning precedent. Instead of addressing these factors, the Court simply rewrites Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing. See ante, at 19. The Court knows what it is doing. It admits as much. Rather than try to harmonize its decision today with Montgomery ’s retroactivity holding, it confesses in a footnote that its rewriting of precedent is inconsistent with Montgomery and basic retroactivity principles. See ante, at 11–12, n. 4. The Court’s solution? It urges lower courts to simply ignore Montgomery going forward. Ante, at 11–12, n. 4 (“[T]he Court’s retroactivity precedents that both pre-date and post-date Montgomery . . . and not Montgomery . . . must guide the determination of whether rules other than Miller are substantive”).[ 5 ] Instead of “disturb[ing]” Montgomery ’s retroactivity holding, ante, at 12, n. 4, the Court attempts to bury it. How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the “ ‘rule of law,’ ” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” Ramos , 590 U. S., at ___–___ (opinion of Kavanaugh, J.) (slip op., at 1–2) (internal quotation marks omitted). Given these weighty interests, the Court “usually require[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then “carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn . of Political Consultants, Inc. , 591 U. S. ___, ___, n. 5 (2020) (slip op., at 9, n. 5). Now, it seems, the Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is “founded in the law rather than in the proclivities of individuals.” Ramos , 590 U. S., at ___ (opinion of Kavanaugh, J.) (slip op., at 2) (internal quotation marks omitted). For present purposes, sentencers should hold this Court to its word: Miller and Montgomery are still good law.[ 6 ] See ante, at 19 (“Today’s decision does not overrule Miller or Montgomery ”). Sentencers are thus bound to continue applying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect to Miller and Montgomery . In other States, the responsibility falls squarely on individual sentencers to use their discretion to “separate those juveniles who may be sentenced to life without parole from those who may not.” Montgomery , 577 U. S., at 210. Failing to do so violates the Eighth Amendment. III Brett Jones, like all juvenile offenders facing a sentence of LWOP, deserves an answer to Miller ’s essential question: whether his crime demonstrates that he is permanently incorrigible. Ordinarily, an appellate court should not pass on that question in the first instance. But the Court today guarantees that the state sentencing court will never have to give Jones an answer. It thus bears acknowledging that, based on the evidence presented below, it is hard to see how Jones is one of the rare juvenile offenders “whose crime reflects irreparable corruption.” Miller , 567 U. S., at 479–480 (internal quotation marks omitted). In fact, many aspects of Jones’ crime seem to epitomize “unfortunate yet transient immaturity.” Id., at 479 (internal quotation marks omitted); see 2018 WL 10700848, *11 (Miss., Nov. 27, 2018) (Kitchens, P. J., dissenting) (“Jones’s actions reflect [the hallmark] features [of youth] at every turn”).[ 7 ] Jones killed his grandfather just 23 days after Jones’ 15th birthday. App. 71. In his short life before the murder, Jones was the victim of violence and neglect that he was too young to escape. Jones’ biological father was an alcoholic who physically abused Jones’ mother, knocking out her teeth and breaking her nose on several occasions. Id., at 71–72. The two separated when Jones was two years old. Id., at 71. Jones’ mother then married Jones’ stepfather, who was also abusive, especially toward Jones. He beat Jones with belts, switches, and a paddle labeled “The Punisher.” Id., at 39–40, 78, 81. He rarely called Jones or his brother by their names, preferring cruel epithets. Id., at 77, 81, 101 (“[H]is favorite thing to call them was little motherf***ers”). According to Jones’ mother, Jones’ stepfather “hated Brett more because Brett reminded him of [Jones’ biological father].” Id., at 78. According to Jones’ grandmother, he was simply “easier to hurt and beat.” Id., at 39. In 2004, after Jones came home late one day, Jones’ stepfather flew into a rage and grabbed Jones by the neck, preparing to beat him with a belt. Id., at 128–129. This time, however, Jones fought back and told his stepfather, “No, you’re not going to hit me ever again.” Id., at 80. Jones took a swing at his stepfather and split open his ear. Ibid. The police were called, and Jones was arrested.[ 8 ] Ibid. Jones’ stepfather then threatened to kick out Jones’ mother and brother if Jones did not move out. Id., at 81. As a result, Jones’ grandparents picked him up less than two months before the murder and brought him to Mississippi. Id., at 47. When he moved, Jones lost access to medications that he had been taking for mental health issues. Id., at 38–39.[ 9 ] When he was 11 or 12 years old, Jones began cutting himself so that he “would not feel the panic and the hurt that was inside of [his] head.” Id., at 75. He later experienced hallucinations and was prescribed antidepressant medications. Id., at 92, 124. These medications were supposed to be tapered off gradually. Id., at 38–39. When Jones left for Mississippi, however, they were abruptly cut off. The murder was precipitated by a dispute over Jones’ girlfriend. After Jones moved, his girlfriend ran away from her home in Florida to stay at Jones’ grandparents’ home in secret. 938 So. 2d 312, 313 (Miss. App. 2006). On the day of the murder, Jones’ grandfather, Bertis Jones, discovered that Jones’ girlfriend had been staying in their home. Ibid. He ordered her out. Ibid. Later that day, Jones was making a sandwich in the kitchen using a steak knife. Id., at 314. Jones said something disrespectful to his grandfather, who started yelling. Ibid. The two began pushing each other, and Jones’ grandfather tried to hit him. Ibid. Jones stabbed his grandfather with the steak knife. Ibid. Jones’ grandfather came at Jones again, and the fight continued. Ibid. Jones ultimately stabbed his grandfather eight times, grabbing a second knife when the first one broke. 2018 WL 10700848, *7 (Kitchens, P. J., dissenting). No one disputes that this was a terrible crime. Miller , however, held that “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” 567 U. S., at 472. Jones’ crime reflects these distinctive attributes: “That a teenager in trouble for having been caught concealing his girlfriend at his grandparents’ home would attempt to solve the problem by resorting to violence dramatically epitomizes immaturity, impetuosity, and failure to appreciate risks or consequences.” 2018 WL 10700848, *11 (Kitchens, P. J., dissenting). Jones then attempted to save his grandfather by administering CPR. 938 So. 2d, at 314 . When that failed, he clumsily tried to hide what he had done. 2018 WL 10700848, *11 (Kitchens, P. J., dissenting). He was spotted walking around in plain sight, covered in blood, trembling and muttering to himself. Ibid. When a neighbor questioned him, Jones told a feeble lie, claiming that his grandfather had left and that the blood on his clothes was “ ‘a joke.’ ” 938 So. 2d, at 314. Jones then met up with his girlfriend and attempted to hitchhike, but not to make a getaway. Instead, he was trying to go see his grandmother to tell her what had happened. Id., at 315. The police stopped Jones, found that he was carrying a pocket knife, and asked if it was the knife he “ ‘did it with.’ ” Ibid . Jones replied, “ ‘No, I already got rid of it.’ ” Ibid. He then agreed to be interviewed by three police detectives, “without invoking his right to silence or his right to counsel and without a parent or guardian present.” 2018 WL 10700848, *11 (Kitchens, P. J., dissenting). Thus, “Jones’s behavior in the immediate aftermath of his tragic actions also demonstrated his fundamental immaturity.” Ibid. At his resentencing hearing, Jones provided evidence that not only is he capable of rehabilitation, but he had in fact already matured significantly since his crime. In more than five years in prison, Jones committed only two disciplinary infractions. App. 134–135. While incarcerated, Jones earned his GED and sought out work, becoming a “very good employee.” Id., at 106, 109, 153. Jones and his prison unit manager often discussed the Bible, and in time, his unit manager came to think of Jones “almost like [a] son.” Id., at 107. Jones confided in him that Jones “regretted” what he had done. Id., at 112. Jones’ grandmother (Bertis Jones’ widow) testified at Jones’ resentencing hearing and submitted an amicus brief to this Court. She remains “steadfast in her belief that Brett is not and never was irreparably corrupt.” Brief for Madge Jones et al. as Amici Curiae 4. She speaks with Jones weekly, encouraging him as he takes college courses and serves in the prison ministry. Ibid. Jones’ younger brother, Marty, and his other family members have also stayed by his side. This significant body of evidence does not excuse Jones’ crime. It does mean, however, that under Miller and Montgomery , there is a strong likelihood that Jones is constitutionally ineligible for LWOP. His crime, while terrible, appears to have been the product of “unfortunate yet transient immaturity.” Miller , 567 U. S., at 479 (internal quotation marks omitted). Notably, the State called no witnesses and offered no evidence at the resentencing hearing to rebut Jones’ proof that his crime reflected the “recklessness” and “impulsivity” characteristic of juveniles. Montgomery , 577 U. S., at 207 (internal quotation marks omitted); see App. 23, 136. In resentencing Jones to LWOP, the sentencing court failed to apply Miller properly. Instead, it followed the instructions of the Mississippi Supreme Court, which held that “ Miller rendered [Mississippi’s] sentencing scheme unconstitutional if, and only if, the sentencing authority fails to take into account characteristics and circumstances unique to juveniles.” 122 So. 3d 698, 702 (2013). Thus, the sentencing court simply considered the “ Miller factors” as part of the “mitigating and the aggravating circumstances.” App. 149. It never addressed Miller ’s central inquiry: whether Jones is one of the rare juveniles whose crimes reflect irreparable corruption. 567 U. S., at 479–480. Because the sentencing court failed to ask and answer this critical question, Jones’ sentence should not stand. IV It is important not to lose sight of what is at stake in this case. “The Eighth Amendment’s prohibition of cruel and unusual punishment guarantees individuals the right not to be subjected to excessive sanctions.” Miller , 567 U. S., at 469 (internal quotation marks omitted). In Roper , Graham , Miller , and Montgomery , the Court recognized that this guarantee has special significance for children. The Eighth Amendment does not excuse children’s crimes, nor does it shield them from all punishment. It does, however, demand that most children be spared from punishments that “giv[e] no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Graham , 560 U. S., at 79. Jones and other juvenile offenders like him seek only the possibility of parole. Not the certainty of release, but the opportunity, at some point in their lives, to show a parole board all they have done to rehabilitate themselves and to ask for a second chance. Jones recognizes that the parole board may ultimately decide he must spend his entire life behind bars. He simply requests that the State not “mak[e] the judgment at the outset that [he] never will be fit to reenter society.” Id., at 75. The Eighth Amendment requires that most juvenile offenders be given this small “hope for some years of life outside prison walls.” Montgomery , 577 U. S., at 213.[ 10 ] At his resentencing hearing, Jones told the court, “I’m not the same person I was when I was 15. . . . I’ve become a pretty decent person in life. And I’ve pretty much taken every avenue that I could possibly take in prison to rehabilitate myself.” App. 152. “Minors do have the ability to change,” he reflected. Ibid. He noted in closing, “If you decide to send me back without the possibility of parole, I will still do exactly what I’ve been doing for ten years. But all I can do is ask you . . . please give me just one chance to show the world, man, like, I can be somebody. I’ve done everything I could over the past ten years to be somebody. . . . I can’t change what was already done. I can just try to show . . . I’ve become a grown man.” Id ., at 153. Today, Jones is 31. His time spent in prison has now eclipsed the childhood he had outside of it. Jones should know that, despite the Court’s decision today, what he does in life matters. So, too, do the efforts of the almost 1,500 other juvenile offenders like Jones who are serving LWOP sentences. Of course, nothing can repair the damage their crimes caused. But that is not the question. The question is whether the State, at some point, must consider whether a juvenile offender has demonstrated maturity and rehabilitation sufficient to merit a chance at life beyond the prison in which he has grown up. See Graham , 560 U. S., at 79. For most, the answer is yes. Notes 1 Elsewhere, the numbers are even more alarming. Like Mississippi courts, Louisiana courts have concluded that “ Miller requires the sentencing court to consider an offender’s youth and attendant characteristics as mitigating circumstances.” State v. Keith , 51,389, p. 3 (La. App. 2 Cir. 6/21/17), 223 So. 3d 767, 770. As of 2020, Louisiana has imposed LWOP on an astonishing 57 percent of eligible juvenile offenders since Miller was decided. See Louisiana Center for Children’s Rights, Louisiana’s Compliance with Miller v. Alabama 1 (2020). 2 The harm from these sentences will not fall equally. The racial disparities in juvenile LWOP sentencing are stark: 70 percent of all youths sentenced to LWOP are children of color. See Tipping Point 10; see also Brief for Juvenile Law Center et al. as Amici Curiae 21 (reporting that “[i]n the years before Graham and Miller , courts sentenced Black juvenile offenders to life imprisonment without parole ten times more often than white offenders”); Mills, Dorn, & Hritz, Juvenile Life Without Parole in Law and Practice: Chronicling the Rapid Change Underway, 65 Am. U. L. Rev. 535, 579–580 (2016) (“Non-whites are overrepresented among the JLWOP population in ways perhaps unseen in any other aspect of our criminal justice system”). The trend has worsened since Miller v. Alabama , 567 U.S. 460 (2012): 72 percent of children sentenced to LWOP after Miller were Black, compared to 61 percent of children sentenced before Miller . Tipping Point 10 . 3 Justice Thomas agrees that Montgomery mandates such a reading of Miller , but he claims that Miller itself did not establish a substantive rule. See ante, at 2–5. That is incorrect. As discussed, Miller prohibited mandatory LWOP sentences not only because mandatory sentencing precludes individualized consideration of a juvenile’s youth, but also because “such a scheme poses too great a risk of disproportionate punishment.” 567 U. S., at 479. Applying the principles of proportionality set forth in Roper and Graham , Miller “rendered life without parole an unconstitutional penalty for a class of defendants because of their status[,] that is, juvenile offenders whose crimes reflect the transient immaturity of youth.” Montgomery , 577 U. S., at 208 (internal quotation marks omitted). As a result, “ Miller is no less substantive than are Roper and Graham .” Id., at 209. 4 Justice Thomas claims that Miller and Montgomery “refashio[n] the Eighth Amendment to accommodate this Court’s views of juvenile justice.” Ante, at 2; see ante, at 8. In so doing, Justice Thomas “seek[s] to relitigate old Eighth Amendment battles” based on “arguments this Court has previously (and often) rejected.” Miller , 567 U. S., at 470–471, n. 4; see Graham v. Florida , 560 U.S. 48 , 58 (2010) (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society” (internal quotation marks omitted)). 5 Of course, as already discussed, the Court is perfectly content to rely on Montgomery for its statement that a finding of fact regarding permanent incorrigibility is not required. That isolated piece of Montgomery , apparently, still carries the full weight of precedent. Anything more inconvenient, however, the Court today discards. 6 The Court leaves open the possibility of an “as-applied Eighth Amendment claim of disproportionality.” Ante, at 21 (citing Harmelin v. Michigan , 501 U. S 957, 996–1009 (1991) (Kennedy, J., concurring in part and concurring in judgment)). In the context of a juvenile offender, such a claim should be controlled by this Court’s holding that sentencing “a child whose crime reflects transient immaturity to life without parole . . . is disproportionate under the Eighth Amendment.” Montgomery , 577 U. S., at 211; see Miller , 567 U. S., at 481 (“ Harmelin had nothing to do with children and did not purport to apply its holding to the sentencing of juvenile offenders”). 7 Even as it disclaims any responsibility for evaluating permanent incorrigibility, the Court emphasizes the details of Jones’ crime and alludes to other homicides committed by juveniles throughout the country. See ante, at 2–3, 6. The gravity of these violent acts was not lost on the Court in Miller , which set forth its substantive rule specifically for the subset of juvenile offenders who commit homicide. See also Roper , 543 U. S., at 572 (“[W]e cannot deny or overlook the brutal crimes too many juvenile offenders have committed”). Notwithstanding the unique “moral culpability and consequential harm” of homicide, Miller reasoned that Graham ’s insights about children “are evident in the same way, and to the same degree.” 567 U. S., at 473. The point of Miller and Montgomery is that juveniles, even those who commit murder, have the capacity to grow and mature, to rehabilitate. The Eighth Amendment requires that sentencers (and reviewing courts) not presume that most juveniles will forever remain the “murderers,” ante, at 10, they once were. 8 This was Jones’ only prior contact with the juvenile justice system. See Brief for Petitioner 35. 9 Jones’ mother has also been diagnosed with a number of conditions, including posttraumatic stress disorder, bipolar disorder, and manic depression. App. 74. As a result, throughout Jones’ life, she experienced panic attacks and emotional breakdowns. Id., at 74–75. As a child, Jones witnessed his mother cutting herself. Id., at 122–123. The types of adverse childhood experiences that Jones endured, including physical abuse, domestic violence, and mental illness in family members, are strong predictors of negative outcomes for children, including violence. J. Garbarino, Miller ’s Children 10–12 (2018); see id., at 12 (“[E]levated adversity scores are as common among killers as they are rare in the general adolescent population”). 10 Having deprived Jones of his constitutional right, the Court gestures at a potential lifeline from other institutions, including the Mississippi Legislature or Governor. Ante, at 22. But “the remote possibility” of such action “does not mitigate the harshness of the sentence” that Jones now faces. Graham , 560 U. S., at 70. The Eighth Amendment guarantees juvenile offenders like Jones a basic constitutional protection against disproportionate punishments. The Court should not leave the vindication of such important legal rights to others, or to chance.

The Supreme Court affirmed the Mississippi Court of Appeals' decision to sentence Brett Jones, who was under 18 when he committed a murder, to life without parole. The Court rejected Jones' argument that the sentencer must make a separate finding of permanent incorrigibility before imposing a life-without-parole sentence, citing previous rulings in Miller v. Alabama and Montgomery v. Louisiana. The Court stated that Miller only requires the sentencer to consider the offender's youth and attendant characteristics before imposing a sentence, and Montgomery clarified that Miller did not mandate a formal fact-finding requirement regarding incorrigibility.

Death Penalty & Criminal Sentencing

Bucklew v. Precythe

https://supreme.justia.com/cases/federal/us/587/17-8151/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 17–8151 _________________ RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 1, 2019] Justice Gorsuch delivered the opinion of the Court. Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes. He acknowledges that the U. S. Constitution permits a sentence of execution for his crimes. He accepts, too, that the State’s lethal injection protocol is constitutional in most applications. But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him. Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution. He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments. We can discern no lawful basis for doing so. I A In 1996, when Stephanie Ray announced that she wanted to end their relationship, Mr. Bucklew grew violent. He cut her jaw, punched her in the face, and threatened her with a knife. Frightened to remain in the home they had shared, Ms. Ray sought refuge with her children in Michael Sanders’ nearby residence. But then one night Mr. Bucklew invaded that home. Bearing a pistol in each hand, he shot Mr. Sanders in the chest; fired at Mr. Sanders’ 6-year-old son (thankfully, he missed); and pistol-whipped Ms. Ray, this time breaking her jaw. Then Mr. Bucklew handcuffed Ms. Ray, drove her to a secluded spot, and raped her at gunpoint. After a trooper spotted Mr. Bucklew, a shootout followed and he was finally arrested. While all this played out, Mr. Sanders bled to death. As a coda, Mr. Bucklew escaped from jail while awaiting trial and attacked Ms. Ray’s mother with a hammer before he could be recaptured. After a decade of litigation, Mr. Bucklew was seemingly out of legal options. A jury had convicted him of murder and other crimes and recommended a death sentence, which the court had imposed. His direct appeal had proved unsuccessful. State v. Bucklew , 973 S.W.2d 83 (Mo. 1998), cert. denied, 525 U.S. 1082 (1999). Separate rounds of state and federal post-conviction proceedings also had failed to yield relief. Bucklew v. State , 38 S.W.3d 395 (Mo.), cert. denied, 534 U.S. 964 (2001); Bucklew v. Luebbers , 436 F.3d 1010 (CA8), cert. denied, 549 U.S. 1079 (2006). B As it turned out, though, Mr. Bucklew’s case soon became caught up in a wave of litigation over lethal injection procedures. Like many States, Missouri has periodically sought to improve its administration of the death penalty. Early in the 20th century, the State replaced hanging with the gas chamber. Later in the century, it authorized the use of lethal injection as an alternative to lethal gas. By the time Mr. Bucklew’s post-conviction proceedings ended, Missouri’s protocol called for lethal injections to be carried out using three drugs: sodium thiopental, pancuronium bromide, and potassium chloride. And by that time, too, various inmates were in the process of challenging the constitutionality of the State’s protocol and others like it around the country. See Taylor v. Crawford , 457 F.3d 902 (CA8 2006); Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv. L. Rev. 1301, 1304 (2007) (describing flood of lethal injection lawsuits around 2006 that “severely constrained states’ ability to carry out executions”); Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 102–116 (2007). Ultimately, this Court answered these legal challenges in Baze v. Rees , 553 U.S. 35 (2008). Addressing Kentucky’s similar three-drug protocol, The Chief Justice, joined by Justice Alito and Justice Kennedy, concluded that a State’s refusal to alter its lethal injection protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Id. , at 52. Justice Thomas, joined by Justice Scalia, thought the protocol passed muster because it was not intended “to add elements of terror, pain, or disgrace to the death penalty.” Id. , at 107. Justice Breyer reached the same result because he saw no evidence that the protocol created “a significant risk of unnecessary suffering.” Id. , at 113. And though Justice Stevens objected to the continued use of the death penalty, he agreed that petitioners’ evidence was insufficient. Id. , at 87. After this Court decided Baze , it denied review in a case seeking to challenge Missouri’s similar lethal injection protocol. Taylor v. Crawford , 487 F.3d 1072 (2007), cert. denied, 553 U.S. 1004 (2008). But that still was not the end of it. Next, Mr. Bucklew and other inmates unsuccessfully challenged Missouri’s protocol in state court, alleging that it had been adopted in contravention of Missouri’s Administrative Procedure Act. Middleton v. Missouri Dept. of Corrections , 278 S.W.3d 193 (Mo.), cert. denied, 556 U.S. 1255 (2009). They also unsuccessfully challenged the protocol in federal court, this time alleging it was pre-empted by various federal statutes. Ringo v. Lombardi , 677 F.3d 793 (CA8 2012). And Mr. Bucklew sought to intervene in yet another lawsuit alleging that Missouri’s protocol violated the Eighth Amendment because unqualified personnel might botch its administration. That lawsuit failed too. Clemons v. Crawford , 585 F.3d 1119 (CA8 2009), cert. denied, 561 U.S. 1026 (2010). While all this played out, pressure from anti-death-penalty advocates induced the company that manufactured sodium thiopental to stop supplying it for use in executions. As a result, the State was unable to proceed with executions until it could change its lethal injection protocol again. This it did in 2012, prescribing the use of a single drug, the sedative propofol. Soon after that, Mr. Bucklew and other inmates sued to invalidate this new protocol as well, alleging that it would produce excruciating pain and violate the Eighth Amendment on its face. After the State revised the protocol in 2013 to use the sedative pentobarbital instead of propofol, the inmates amended their complaint to allege that pentobarbital would likewise violate the Constitution. C Things came to a head in 2014. With its new protocol in place and the necessary drugs now available, the State scheduled Mr. Bucklew’s execution for May 21. But 12 days before the execution Mr. Bucklew filed yet another lawsuit, the one now before us. In this case, he presented an as-applied Eighth Amendment challenge to the State’s new protocol. Whether or not it would cause excruciating pain for all prisoners, as his previous lawsuit alleged, Mr. Bucklew now contended that the State’s protocol would cause him severe pain because of his particular medical condition. Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intravenous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications. These latest protocol challenges yielded mixed results. The district court dismissed both the inmates’ facial challenge and Mr. Bucklew’s as-applied challenge. But, at Mr. Bucklew’s request, this Court agreed to stay his execution until the Eighth Circuit could hear his appeal. Bucklew v. Lombardi , 572 U.S. 1131 (2014). Ultimately, the Eighth Circuit affirmed the dismissal of the facial challenge. Zink v. Lombardi , 783 F.3d 1089 (en banc) ( per curiam ), cert. denied, 576 U. S. ___ (2015). Then, turning to the as-applied challenge and seeking to apply the test set forth by the Baze plurality, the court held that Mr. Bucklew’s complaint failed as a matter of law to identify an alternative procedure that would significantly reduce the risks he alleged would flow from the State’s lethal injection protocol. Yet, despite this dispositive shortcoming, the court of appeals decided to give Mr. Bucklew another chance to plead his case. The court stressed that, on remand before the district court, Mr. Bucklew had to identify “at the earliest possible time” a feasible, readily implemented alternative procedure that would address those risks. Bucklew v. Lombardi , 783 F.3d 1120, 1127–1128 (2015) (en banc). Shortly after the Eighth Circuit issued its judgment, this Court decided Glossip v. Gross , 576 U. S. ___ (2015), rejecting a challenge to Oklahoma’s lethal injection protocol. There, the Court clarified that The Chief Justice’s plurality opinion in Baze was controlling under Marks v. United States , 430 U.S. 188 (1977). In doing so, it reaffirmed that an inmate cannot successfully challenge a method of execution under the Eighth Amendment unless he identifies “an alternative that is ‘feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.’ ” 576 U. S., at ___–___ (slip op., at 12–13). Justice Thomas, joined by Justice Scalia, reiterated his view that the Eighth Amendment “prohibits only those methods of execution that are deliberately designed to inflict pain,” but he joined the Court’s opinion because it correctly explained why petitioners’ claim failed even under the controlling opinion in Baze . Glossip , 576 U. S., at ___ (concurring opinion) (slip op., at 1) (internal quotation marks and alterations omitted). D Despite the Eighth Circuit’s express instructions, when Mr. Bucklew returned to the district court in 2015 he still refused to identify an alternative procedure that would significantly reduce his alleged risk of pain. Instead, he insisted that inmates should have to carry this burden only in facial, not as-applied, challenges. Finally, after the district court gave him “one last opportunity,” App. 30, Mr. Bucklew filed a fourth amended complaint in which he claimed that execution by “lethal gas” was a feasible and available alternative method that would significantly reduce his risk of pain. Id. , at 42. Mr. Bucklew later clarified that the lethal gas he had in mind was nitrogen, which neither Missouri nor any other State had ever used to carry out an execution. The district court allowed Mr. Bucklew “extensive discovery” on his new proposal. 883 F.3d 1087, 1094 (CA8 2018). But even at the close of discovery in 2017, the district court still found the proposal lacking and granted the State’s motion for summary judgment. By this point in the proceedings, Mr. Bucklew’s contentions about the pain he might suffer had evolved considerably. He no longer complained about circulation of the drug, the use of dye, or adverse drug interactions. Instead, his main claim now was that he would experience pain during the period after the pentobarbital started to take effect but before it rendered him fully unconscious. According to his expert, Dr. Joel Zivot, while in this semiconscious “twilight stage” Mr. Bucklew would be unable to prevent his tumors from obstructing his breathing, which would make him feel like he was suffocating. Dr. Zivot declined to say how long this twilight stage would last. When pressed, however, he referenced a study on euthanasia in horses. He claimed that the horses in the study had displayed some amount of brain activity, as measured with an electroencephalogram (or EEG), for up to four minutes after they were given a large dose of pentobarbital. Based on Dr. Zivot’s testi- mony, the district court found a triable issue as to whether there was a “substantial risk” that Mr. Bucklew would “experience choking and an inability to breathe for up to four minutes” if he were executed by lethal injection. App. 827. Even so, the court held, Mr. Bucklew’s claim failed because he had produced no evidence that his proposed alternative, execution by nitrogen hypoxia, would significantly reduce that risk. This time, a panel of the Eighth Circuit affirmed. The panel held that Mr. Bucklew had produced no evidence that the risk of pain he alleged “would be substantially reduced by use of nitrogen hypoxia instead of lethal injection as the method of execution.” 883 F. 3d, at 1096. Judge Colloton dissented, arguing that the evidence raised a triable issue as to whether nitrogen gas would “render Bucklew insensate more quickly than pentobarbital.” Id. , at 1099. The full court denied rehearing en banc over a dissent by Judge Kelly, who maintained that, while prisoners pursuing facial challenges to a state execution protocol must plead and prove an alternative method of execution under Baze and Glossip , prisoners like Mr. Bucklew who pursue as-applied challenges should not have to bear that burden. 885 F.3d 527, 528 (2018). On the same day Mr. Bucklew was scheduled to be executed, this Court granted him a second stay of execution. 583 U. S. ___ (2018). We then agreed to hear his case to clarify the legal standards that govern an as-applied Eighth Amendment challenge to a State’s method of carrying out a death sentence. 584 U. S. ___ (2018). II We begin with Mr. Bucklew’s suggestion that the test for lethal injection protocol challenges announced in Baze and Glossip should govern only facial challenges, not as-applied challenges like his. In evaluating this argument, we first examine the original and historical understanding of the Eighth Amendment and our precedent in Baze and Glossip . We then address whether, in light of those authorities, it would be appropriate to adopt a different constitutional test for as-applied claims. A The Constitution allows capital punishment. See Glossip , 576 U. S., at ___–___ (slip op., at 2–4); Baze , 553 U. S., at 47. In fact, death was “the standard penalty for all serious crimes” at the time of the founding. S. Banner, The Death Penalty: An American History 23 (2002) (Banner). Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a pen- alty, so long as proper procedures are followed. And the First Congress, which proposed both Amendments, made a number of crimes punishable by death. See Act of Apr. 30, 1790, 1Stat. 112. Of course, that doesn’t mean the American people must continue to use the death penalty. The same Constitution that permits States to authorize capital punishment also allows them to outlaw it. But it does mean that the judiciary bears no license to end a debate reserved for the people and their representatives. While the Eighth Amendment doesn’t forbid capital punishment, it does speak to how States may carry out that punishment, prohibiting methods that are “cruel and unusual.” What does this term mean? At the time of the framing, English law still formally tolerated certain punishments even though they had largely fallen into disuse—punishments in which “terror, pain, or disgrace [were] superadded” to the penalty of death. 4 W. Blackstone, Commentaries on the Laws of England 370 (1769). These included such “[d]isgusting” practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed “savor[ed] of torture or cruelty.” Ibid. Methods of execution like these readily qualified as “cruel and unusual,” as a reader at the time of the Eighth Amendment’s adoption would have understood those words. They were undoubtedly “cruel,” a term often defined to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting,” 1 S. Johnson, A Dictionary of the English Language (4th ed. 1773), or “[d]isposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness,” 1 N. Webster, An American Dictionary of the English Language (1828). And by the time of the founding, these methods had long fallen out of use and so had become “unusual.” 4 Blackstone, supra, at 370; Banner 76; Baze , 553 U. S., at 97 (Thomas, J., concurring in judgment); see also Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–1771, 1814 (2008) (observing that Americans in the late 18th and early 19th centuries described as “unusual” governmental actions that had “fall[en] completely out of usage for a long period of time”). Contemporary evidence confirms that the people who ratified the Eighth Amendment would have understood it in just this way. Patrick Henry, for one, warned that unless the Constitution was amended to prohibit “cruel and unusual punishments,” Congress would be free to inflict “tortures” and “barbarous” punishments. 3 Debates on the Federal Constitution 447–448 (J. Elliot 2d ed. 1891). Many early commentators likewise described the Eighth Amendment as ruling out “the use of the rack or the stake, or any of those horrid modes of torture devised by human ingenuity for the gratification of fiendish passion.” J. Bayard, A Brief Exposition of the Constitution of the United States 140 (1833); see B. Oliver, The Rights of an American Citizen 186 (1832) (the Eighth Amendment prohibits such “barbarous and cruel punishments” as “[b]reaking on the wheel, flaying alive, rending asunder with horses, . . . maiming, mutilating and scourging to death”). Justice Story even remarked that he thought the prohibition of cruel and unusual punishments likely “unnecessary” because no “free government” would ever authorize “atrocious” methods of execution like these. 3 J. Story, Commentaries on the Constitution of the United States §1896, p. 750 (1833). Consistent with the Constitution’s original understanding, this Court in Wilkerson v. Utah , 99 U.S. 130 (1879), permitted an execution by firing squad while observing that the Eighth Amendment forbade the gruesome methods of execution described by Blackstone “and all others in the same line of unnecessary cruelty.” Id. , at 135–136. A few years later, the Court upheld a sentence of death by electrocution while observing that, though electrocution was a new mode of punishment and therefore perhaps could be considered “unusual,” it was not “cruel” in the constitutional sense: “[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. [Cruelty] implies . . . something inhuman and barbarous, something more than the mere extinguishment of life.” In re Kemmler , 136 U.S. 436 , 447 (1890). It’s instructive, too, to contrast the modes of execution the Eighth Amendment was understood to forbid with those it was understood to permit. At the time of the Amendment’s adoption, the predominant method of execution in this country was hanging. Glossip , 576 U. S., at ___ (slip op., at 2). While hanging was considered more humane than some of the punishments of the Old World, it was no guarantee of a quick and painless death. “Many and perhaps most hangings were evidently painful for the condemned person because they caused death slowly,” and “[w]hether a hanging was painless or painful seems to have been largely a matter of chance.” Banner 48, 170. The force of the drop could break the neck and sever the spinal cord, making death almost instantaneous. But that was hardly assured given the techniques that prevailed at the time. More often it seems the prisoner would die from loss of blood flow to the brain, which could produce unconsciousness usually within seconds, or suffocation, which could take several minutes. Id. , at 46–47; J. Laurence, The History of Capital Punishment 44–46 (1960); Gardner, Executions and Indignities: An Eighth Amendment Assessment of Methods of Inflicting Capital Punishment, 39 Ohio St. L. J. 96, 120 (1978). But while hanging could and often did result in significant pain, its use “was virtually never questioned.” Banner 170. Presumably that was because, in contrast to punishments like burning and disemboweling, hanging wasn’t “ intended to be painful” and the risk of pain involved was considered “unfortunate but inevitable.” Ibid. ; see also id. , at 48. What does all this tell us about how the Eighth Amendment applies to methods of execution? For one thing, it tells us that the Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes. Glossip , 576 U. S., at ___ (slip op., at 4). Instead, what unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment that intensified the sentence of death with a (cruel) “ ‘superadd[ition]’ ” of “ ‘terror, pain, or disgrace.’ ” Baze , 553 U. S., at 48; accord, id. , at 96 (Thomas, J., concurring in judgment). This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual, and perhaps understandably so. Far from seeking to superadd terror, pain, or disgrace to their executions, the States have often sought more nearly the opposite, exactly as Justice Story predicted. Through much of the 19th century, States experimented with technological innovations aimed at making hanging less painful. See Banner 170–177. In the 1880s, following the recommendation of a commission tasked with finding “ ‘the most humane and practical method known to modern science of carrying into effect the sentence of death,’ ” the State of New York replaced hanging with electrocution. Glossip , 576 U. S., at ___ (slip op., at 2). Several States followed suit in the “ ‘ “belief that electrocution is less painful and more humane than hanging.” ’ ” Ibid. Other States adopted lethal gas after concluding it was “ ‘the most humane [method of execution] known to modern science.’ ” Ibid. And beginning in the 1970s, the search for less painful modes of execution led many States to switch to lethal injection. Id. , at ___ (slip op., at 3); Baze , 553 U. S., at 42, 62; see also Banner 178–181, 196–197, 297. Notably, all of these innovations occurred not through this Court’s intervention, but through the initiative of the people and their representatives. Still, accepting the possibility that a State might try to carry out an execution in an impermissibly cruel and unusual manner, how can a court determine when a State has crossed the line? The Chief Justice’s opinion in Baze , which a majority of the Court held to be controlling in Glossip , supplies critical guidance. It teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. See Glossip , 576 U. S., at ___–___ (slip op., at 12–13); Baze , 553 U. S., at 52. Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” 576 U. S., at ___ (slip op., at 1). In reaching this conclusion, Baze and Glossip recognized that the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions.” Baze , 553 U. S., at 47. To the contrary, the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions.” Id. , at 51–52, and nn. 2–3. The Eighth Amendment does not come into play unless the risk of pain associated with the State’s method is “substantial when compared to a known and available alternative.” Glossip , 576 U. S., at ___ (slip op., at 13); see Baze , 553 U. S., at 61. Nor do Baze and Glossip suggest that traditionally accepted methods of execution—such as hanging, the firing squad, electrocution, and lethal injection—are necessarily rendered unconstitutional as soon as an arguably more humane method like lethal injection becomes available. There are, the Court recognized, many legitimate reasons why a State might choose, consistent with the Eighth Amendment, not to adopt a prisoner’s preferred method of execution. See, e.g. , Glossip , 576 U. S., at ___–___ (slip op., at 13–14) (a State can’t be faulted for failing to use lethal injection drugs that it’s unable to procure through good-faith efforts); Baze , 553 U. S., at 57 (a State has a legitimate interest in selecting a method it regards as “preserving the dignity of the procedure”); id. , at 66 (Alito, J., concurring) (a State isn’t required to modify its protocol in ways that would require the involvement of “persons whose professional ethics rules or traditions impede their participation”). As we’ve seen, two Members of the Court whose votes were essential to the judgment in Glossip argued that establishing cruelty consistent with the Eighth Amendment’s original meaning demands slightly more than the majority opinion there (or the Baze plurality opinion it followed) suggested. Instead of requiring an inmate to establish that a State has unreasonably refused to alter its method of execution to avoid a risk of unnecessary pain, Justice Thomas and Justice Scalia contended that an inmate must show that the State intended its method to inflict such pain. See Glossip , 576 U. S., at ___ (Thomas, J., concurring) (slip op., at 1); Baze , 553 U. S., at 94–107 (Thomas, J., concurring in judgment). But revisiting that debate isn’t necessary here because, as we’ll see, the State was entitled to summary judgment in this case even under the more forgiving Baze - Glossip test. See Part III, infra . B Before turning to the application of Baze and Glossip , however, we must confront Mr. Bucklew’s argument that a different standard entirely should govern as-applied challenges like his. He admits that Baze and Glossip supply the controlling test in facial challenges to a State’s chosen method of execution. But he suggests that he should not have to prove an alternative method of execution in his as-applied challenge because “certain categories” of punishment are “manifestly cruel . . . without reference to any alternative methods.” Brief for Petitioner 41–42 (internal quotation marks omitted). He points to “ ‘burning at the stake, crucifixion, [and] breaking on the wheel’ ” as examples of “categorically” cruel methods. Ibid. And, he says, we should use this case to add to the list of “categorically” cruel methods any method that, as applied to a particular inmate, will pose a “substantial and particular risk of grave suffering” due to the inmate’s “unique medical condition.” Id. , at 44. The first problem with this argument is that it’s foreclosed by precedent. Glossip expressly held that identifying an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. 576 U. S., at ___ (slip op., at 1) (emphasis added). And just as binding as this holding is the reasoning underlying it. Distinguishing between constitutionally permissible and impermissible degrees of pain, Baze and Glossip explained, is a necessarily comparative exercise. To decide whether the State has cruelly “superadded” pain to the punishment of death isn’t something that can be accomplished by examining the State’s proposed method in a vacuum, but only by “compar[ing]” that method with a viable alternative. Glossip , 576 U. S., at ___ (slip op., at 13); see Baze , 553 U. S., at 61. As Mr. Bucklew acknowledges when speaking of facial challenges, this comparison “provides the needed metric” to measure whether the State is lawfully carrying out an execution or inflicting “gratuitous” pain. Brief for Petitioner 42–43. Yet it is that very comparison and needed metric Mr. Bucklew would now have us discard. Nor does he offer some persuasive reason for overturning our precedent. To the contrary, Mr. Bucklew simply repeats the same argument the principal dissent offered and the Court expressly and thoughtfully rejected in Glossip . Just as Mr. Bucklew argues here, the dissent there argued that “certain methods of execution” like “burning at the stake” should be declared “categorically off-limits.” And just as Mr. Bucklew submits here, the dissent there argued that any other “intolerably painful” method of execution should be added to this list. 576 U. S., at ___–___ (Sotomayor, J., dissenting) (slip op., at 23–24). Mr. Bucklew’s submission, thus, amounts to no more than a headlong attack on precedent. Mr. Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest. As we’ve seen, when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not some abstract exercise in “categorical” classification. At common law, the ancient and barbaric methods of execution Mr. Bucklew cites were understood to be cruel precisely because—by comparison to other available methods—they went so far beyond what was needed to carry out a death sentence that they could only be explained as reflecting the infliction of pain for pain’s sake. Meanwhile, hanging carried with it an acknowledged and substantial risk of pain but was not considered cruel because that risk was thought—by comparison to other known methods—to involve no more pain than was reasonably necessary to impose a lawful death sentence. See supra , at 9–12. What does the principal dissent have to say about all this? It acknowledges that Glossip ’s comparative requirement helps prevent facial method-of-execution claims from becoming a “backdoor means to abolish” the death penalty. Post , at 8 (opinion of Breyer, J.). But, the dissent assures us, there’s no reason to worry that as-applied method-of-execution challenges might be used that way. This assurance misses the point. As we’ve explained, the alternative-method requirement is compelled by our understanding of the Constitution, not by mere policy concerns. With that, the dissent is left only to rehash the same argument that Mr. Bucklew offers. The dissent insists that some forms of execution are just categorically cruel. Post , at 10–11. At first and like others who have made this argument, the dissent offers little more than intuition to support its conclusion. Ultimately, though, even it bows to the necessity of something firmer. If a “comparator is needed” to assess whether an execution is cruel, the dissent tells us, we should compare the pain likely to follow from the use of a lethal injection in this case with the pain-free use of lethal injections in mine-run cases. Post , at 10. But that’s just another way of saying executions must always be carried out painlessly because they can be carried out painlessly most of the time, a standard the Constitution has never required and this Court has re- jected time and time again. Supra , at 12. To determine whether the State is cruelly superadding pain, our precedents and history require asking whether the State had some other feasible and readily available method to carry out its lawful sentence that would have significantly reduced a substantial risk of pain. That Mr. Bucklew and the dissent fail to respect the force of our precedents—or to grapple with the understanding of the Constitution on which our precedents rest—is more than enough reason to reject their view that as-applied and facial challenges should be treated differently. But it turns out their position on this score suffers from further problems too—problems that neither Mr. Bucklew nor the dissent even attempts to address. Take this one. A facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications. So classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation. Citizens United v. Federal Election Comm’n , 558 U.S. 310 , 331 (2010). Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek. See Gross v. United States , 771 F.3d 10, 14–15 (CADC 2014) (“ ‘[T]he substantive rule of law is the same for both [facial and as-applied] challenges’ ”); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp. , 462 F.3d 219 , 228 (CA2 2006) (the facial/as-applied distinction affects “ the extent to which the invalidity of a statute need be demonstrated,” not “the substantive rule of law to be used”). And surely, too, it must count for something that we have found not a single court decision in over 200 years suggesting that the Eighth Amendment’s meaning shifts in this way. To the contrary, our precedent suggests just the opposite. In the related context of an Eighth Amendment challenge to conditions of confinement, we have seen “no basis whatever” for applying a different legal standard to “deprivations inflicted upon all prisoners” and those “inflicted upon particular prisoners.” Wilson v. Seiter , 501 U.S. 294 , 299, n. 1 (1991). Here’s yet another problem with Mr. Bucklew’s argument: It invites pleading games. The line between facial and as-applied challenges can sometimes prove “amorphous,” Elgin v. Department of Treasury , 567 U.S. 1 , 15 (2012), and “not so well defined,” Citizens United , 558 U. S., at 331. Consider an example. Suppose an inmate claims that the State’s lethal injection protocol violates the Eighth Amendment when used to execute anyone with a very common but not quite universal health condition. Should such a claim be regarded as facial or as-applied? In another context, we sidestepped a debate over how to categorize a comparable claim—one that neither sought “to strike [the challenged law] in all its applications” nor was “limited to plaintiff’s particular case”—by concluding that “[t]he label is not what matters.” Doe v. Reed , 561 U.S. 186 , 194 (2010). To hold now, for the first time, that choosing a label changes the meaning of the Constitution would only guarantee a good deal of litigation over labels, with lawyers on each side seeking to classify cases to maximize their tactical advantage. Unless increasing the delay and cost involved in carrying out executions is the point of the exercise, it’s hard to see the benefit in placing so much weight on what can be an abstruse exercise. Finally, the burden Mr. Bucklew must shoulder under the Baze - Glossip test can be overstated. An inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State’s law. Missouri itself seemed to acknowledge as much at oral argument. Tr. of Oral Arg. 65. So, for example, a prisoner may point to a well-established protocol in another State as a potentially viable option. Of course, in a case like that a court would have to inquire into the possibility that one State possessed a legitimate reason for declining to adopt the protocol of another. See supra , at 13–14. And existing state law might be relevant to determining the proper procedural vehicle for the inmate’s claim. See Hill v. McDonough , 547 U.S. 573, 582–583 (2006) (if the relief sought in a 42 U. S. C. §1983 action would “foreclose the State from implementing the [inmate’s] sentence under present law,” then “recharacterizing a complaint as an action for habeas corpus might be proper”). But the Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes. In light of this, we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative—assuming, of course, that the inmate is more interested in avoiding unnecessary pain than in delaying his execution. III Having (re)confirmed that anyone bringing a method of execution claim alleging the infliction of unconstitution- ally cruel pain must meet the Baze - Glossip test, we can now turn to the question whether Mr. Bucklew is able to sat- isfy that test. Has he identified a feasible and readily im- plemented alternative method of execution the State refused to adopt without a legitimate reason, even though it would significantly reduce a substantial risk of severe pain? Because the case comes to us after the entry of summary judgment, this appeal turns on whether Mr. Bucklew has shown a genuine issue of material fact warranting a trial. A We begin with the question of a proposed alternative method. Through much of this case and despite many opportunities, Mr. Bucklew refused to identify any alternative method of execution, choosing instead to stand on his argument that Baze and Glossip ’s legal standard doesn’t govern as-applied challenges like his (even after the Eighth Circuit rejected that argument). Only when the district court warned that his continued refusal to abide this Court’s precedents would result in immediate dismissal did Mr. Bucklew finally point to nitrogen hy- poxia. The district court then afforded Mr. Bucklew “exten- sive discovery” to explore the viability of that alternative. 883 F. 3d, at 1094. But even after all that, we conclude Mr. Bucklew has failed for two independent reasons to present a triable question on the viability of nitrogen hypoxia as an alternative to the State’s lethal injection protocol. First , an inmate must show that his proposed alternative method is not just theoretically “ ‘feasible’ ” but also “ ‘readily implemented.’ ” Glossip , 576 U. S., at ___–___ (slip op., at 12–13). This means the inmate’s proposal must be sufficiently detailed to permit a finding that the State could carry it out “relatively easily and reasonably quickly.” McGehee v. Hutchinson , 854 F.3d 488, 493 (CA8 2017); Arthur v. Commissioner, Ala. Dept. of Corrections , 840 F.3d 1268, 1300 (CA11 2016). Mr. Bucklew’s bare-bones proposal falls well short of that standard. He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks. Instead of presenting the State with a read- ily implemented alternative method, Mr. Bucklew (and the principal dissent) point to reports from correctional authorities in other States indicating that additional study is needed to develop a protocol for execution by nitrogen hypoxia. See App. 697 (Oklahoma grand jury report recommending that the State “retain experts” and conduct “further research” to “determine how to carry out the sentence of death by this method”); id. , at 736 (report of Louisiana Dept. of Public Safety & Corrections stating that “[r]esearch . . . is ongoing” to develop a nitrogen hypoxia protocol). That is a proposal for more research, not the readily implemented alternative that Baze and Glossip require. Second , and relatedly, the State had a “legitimate” reason for declining to switch from its current method of execution as a matter of law. Baze , 553 U. S., at 52. Rather than point to a proven alternative method, Mr. Bucklew sought the adoption of an entirely new method—one that had “never been used to carry out an execution” and had “no track record of successful use.” McGehee , 854 F. 3d, at 493. But choosing not to be the first to experiment with a new method of execution is a legitimate reason to reject it. In Baze we observed that “no other State ha[d] adopted” the one-drug protocol the inmates sought and they had “proffered no study showing” their one-drug protocol would be as effective and humane as the State’s existing three-drug protocol. 553 U. S., at 57. Under those circumstances, we held as a matter of law that Kentucky’s refusal to adopt the inmates’ proffered protocol could not “constitute a violation of the Eighth Amendment.” Ibid. The Eighth Amendment prohibits States from dredging up archaic cruel punishments or perhaps inventing new ones, but it does not compel a State to adopt “untried and untested” (and thus unusual in the constitutional sense) methods of execution. Id. , at 41.[ 1 ] B Even if a prisoner can carry his burden of showing a readily available alternative, he must still show that it would significantly reduce a substantial risk of severe pain. Glossip , 576 U. S., at ___ (slip op., at 13); Baze , 553 U. S., at 52. A minor reduction in risk is insufficient; the difference must be clear and considerable. Over the course of this litigation, Mr. Bucklew’s explanation why nitrogen hypoxia meets this standard has evolved significantly. But neither of the two theories he has advanced in this Court turns out to be supported by record evidence. First , Mr. Bucklew points to several risks that he alleges could result from use of the State’s lethal injection protocol that would not be present if the State used nitrogen gas. For example, he says the execution team might try to insert an IV into one of his peripheral veins, which could cause the vein to rupture; or the team might instead use an allegedly painful “cut-down” procedure to access his femoral vein. He also says that he might be forced to lie flat on his back during the execution, which could impair his breathing even before the pentobarbital is administered. And he says the stress from all this could cause his tumors to bleed, further impairing his breathing. These risks, we may assume, would not exist if Mr. Bucklew were exe- cuted by his preferred method of nitrogen hypoxia. The problem with all of these contentions is that they rest on speculation unsupported, if not affirmatively contradicted, by the evidence in this case. Nor does the principal dissent contend otherwise. So, for example, uncontroverted record evidence indicates that the execution team will have discretion to adjust the gurney to whatever position is in Mr. Bucklew’s best medical interests. 883 F. 3d, at 1092, n. 3; App. 531. Moreover, the State agreed in the district court that it would not try to place an IV in Mr. Bucklew’s compromised peripheral veins. Id. , at 820; see Brief for Appellant in No. 17–3052 (CA8), p. 7. And, assuming without granting that using a cut-down would raise issues under the Eighth Amendment—but see Nooner v. Norris , 594 F.3d 592, 604 (CA8 2010) (holding otherwise)—the State’s expert, Dr. Michael Antognini, testified without contradiction that it should be possible to place an IV in Mr. Bucklew’s femoral vein without using a cut-down procedure, App. 350. Mr. Bucklew responds by pointing to the warden’s testimony that he once saw medical staff perform a cut-down as part of an execution; but there’s no evidence that what the warden saw was an attempt to access a femoral vein, as opposed to some other vein. Moreover, to the extent the record is unclear on any of these issues, Mr. Bucklew had ample opportunity to conduct discovery and develop a factual record concerning exactly what procedures the State planned to use. He failed to do so—presumably because the thrust of his constitutional claim was that any attempt to execute him via lethal injection would be unconstitutional, regardless of the specific procedures the State might use. As the court of appeals explained: “Having taken the position that any lethal injection procedure would violate the Eighth Amendment,” Mr. Bucklew “made no effort to determine what changes, if any, the [State] would make in applying its lethal injection protocol” to him, and he “never urged the district court to establish a suitable fact-finding procedure . . . to define the as-applied lethal injection protocol [the State] intends to use.” 883 F. 3d, at 1095–1096.[ 2 ] Second , Mr. Bucklew contends that the lethal injection itself will expose him to a substantial risk of severe pain that could be eliminated by adopting his preferred method. He claims that once the sedative pentobarbital is injected he will “lose the ability to manage” the tumors in his airway and, as a result, will experience a “sense of suffocation” for some period of time before the State’s sedative renders him fully unconscious. Brief for Petitioner 12–13. “It is during this in-between twilight stage,” according to his expert, Dr. Zivot, “that Mr. Bucklew is likely to experience prolonged feelings of suffocation and excruciating pain.” App. 234. Mr. Bucklew admits that similar feelings of suffocation could occur with nitrogen, the only difference being the potential duration of the so-called “twilight stage.” He contends that with nitrogen the stage would last at most 20 to 30 seconds, while with pentobarbital it could last up to several minutes. But here again the record contains insufficient evidence to permit Mr. Bucklew to avoid summary judgment. For starters, in the courts below Mr. Bucklew maintained he would have trouble managing his airway only if he were forced to lie supine, which (as we’ve explained) the evidence shows he won’t be. (The dissenters don’t address this point.) But even indulging his new claim that he will have this difficulty regardless of position, he still has failed to present colorable evidence that nitrogen would significantly reduce his risk of pain. We can assume for argument’s sake that Mr. Bucklew is correct that with nitrogen the twilight stage would last 20 to 30 seconds. The critical question, then, is how long that period might last with pentobarbital. The State’s expert, Dr. Antognini, testified that pentobarbital, too, would render Mr. Bucklew fully unconscious and incapable of experiencing pain within 20 to 30 seconds. Id. , at 299–301, 432–433. Dr. Zivot disagreed; but when he was asked how long he thought the twilight stage would last with pentobarbital, his testimony was evasive. Eventually, he said his “number would be longer than” 20 to 30 seconds, but he declined to say how much longer. Id. , at 195. Instead, he referenced a 2015 study on euthanasia in horses. He said the study found that when horses were given a large dose of pentobarbital (along with other drugs), they exhibited “isoelectric EEG”—a complete absence of detectable brain activity—after 52 to 240 seconds. Id. , at 194–196. The district court assumed Dr. Zivot meant that “pain might be felt until measurable brain activity ceases” and that, extrapolating from the horse study, it might take up to four minutes for pentobarbital to “induc[e] a state in which [Mr. Bucklew] could no longer sense that he is choking or unable to breathe.” The district court acknowledged, however, that this might be “a generous interpretation of Dr. Zivot’s testimony.” Id. , at 822, and n. 5. In fact, there’s nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds after being injected with pentobarbital. For one thing, Mr. Bucklew’s lawyer now admits that Dr. Zivot “crossed up the numbers” from the horse study. Tr. of Oral Arg. 7–8, 11–12. The study actually reported that the horses displayed isoelectric EEG between 2 and 52 seconds after infusion of pentobarbital was completed, with an average time of less than 24 seconds. App. 267. So if anything, the horse study appears to bolster Dr. Antognini’s time estimate. For another thing, everyone now also seems to acknowledge that isoelectric EEG is the wrong measure. Dr. Zivot never claimed the horses were capable of experiencing pain until they reached isoelectric EEG. And Mr. Bucklew’s lawyer now concedes that doctors perform major surgery on human patients with measurable EEG readings, which strongly suggests that Mr. Bucklew will be insensible to pain before reaching isoelectric EEG. Tr. of Oral Arg. 9. Finally, the record evidence even allows the possibility that nitrogen could increase the risk of pain. Because Dr. Zivot declined to testify about the likely effects of nitrogen gas, Mr. Bucklew must rely on Dr. Antognini’s testimony. And while Dr. Antognini did say he thought nitrogen’s “onset of action” could be “relatively fast,” App. 458, he added that the effects of nitrogen could vary depending on exactly how it would be administered—information Mr. Bucklew hadn’t provided. Indeed, he stated that “depending on . . . how it’s used, you might get more suffering from nitrogen gas than you would have” from the State’s current protocol. Id. , at 460–461. Of course, the principal dissent maintains that Dr. Zivot’s testimony supports an inference that pentobarbital might cause Mr. Bucklew to suffer for a prolonged period. But its argument rests on a number of mistakes about the record. For example, the dissent points to Dr. Zivot’s remark that, with pentobarbital, “ ‘the period of time between receiving the injection and death could range over a few minutes to many minutes.’ ” Post , at 4, 6 (quoting App. 222). From this, the dissent concludes that Mr. Bucklew may suffer for “up to several minutes.” Post , at 1, 6, 9. But everyone agrees that the relevant question isn’t how long it will take for Mr. Bucklew to die, but how long he will be capable of feeling pain. Seeking to address the problem, the dissent next points to another part of Dr. Zivot’s testimony and says it means Mr. Bucklew could experience pain during the entire time between injection and death. Post , at 6, 13 (quoting App. 222). But the dissent clips the relevant quotation. As the full quotation makes clear, Dr. Zivot claimed that Mr. Bucklew might be unable to “maintain the integrity of his airway” until he died—but he carefully avoided claiming that Mr. Bucklew would be capable of feeling pain until he died.[ 3 ] To avoid this problem, the dissent quotes Dr. Zivot’s assertions that pentobarbital might not produce “ ‘rapid unconsciousness’ ” and that Mr. Bucklew’s suffering with pentobarbital could be “ ‘prolonged.’ ” Post , at 4–6, 13 (quoting App. 233–234). But Dr. Zivot’s statements here, too, fail to specify how long Mr. Bucklew is likely to be able to feel pain. The hard fact is that, when Dr. Zivot was finally compelled to offer a view on this question, his only response was to refer to the horse study. Id. , at 195–196. The dissent’s effort to suggest that Dr. Zivot “did not rely exclusively or even heavily on that study,” post , at 7, is belied by (among other things) Mr. Bucklew’s own brief in this Court, which asserted that the twilight stage during which he might feel pain could last “between 52 and 240 seconds,” based entirely on a citation of Dr. Zivot’s incorrect testimony about the horse study. Brief for Petitioner 13. In sum, even if execution by nitrogen hypoxia were a feasible and readily implemented alternative to the State’s chosen method, Mr. Bucklew has still failed to present any evidence suggesting that it would significantly reduce his risk of pain. For that reason as well, the State was entitled to summary judgment on Mr. Bucklew’s Eighth Amendment claim.[ 4 ] IV “Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.” Hill , 547 U. S., at 584. Those interests have been frustrated in this case. Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeal and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution’s original meaning. The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better. Even the principal dissent acknowledges that “the long delays that now typically occur between the time an offender is sentenced to death and his execution” are “excessive.” Post , at 16. The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post , at 18. Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to law- fully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. Last-minute stays should be the extreme exception, not the norm, and “the last-minute nature of an application” that “could have been brought” earlier, or “an applicant’s attempt at manipulation,” “may be grounds for denial of a stay.” Hill , 547 U. S., at 584 (internal quotation marks omitted). So, for example, we have vacated a stay entered by a lower court as an abuse of discretion where the inmate waited to bring an available claim until just 10 days before his scheduled execution for a murder he had committed 24 years earlier. See Dunn v. Ray , 586 U. S. ___ (2019).[ 5 ] If litigation is allowed to proceed, federal courts “can and should” protect settled state judgments from “undue interference” by invoking their “equitable powers” to dismiss or curtail suits that are pursued in a “dilatory” fashion or based on “speculative” theories. Id. , at 584–585. * The judgment of the court of appeals is Affirmed. Notes 1 While this case has been pending, a few States have authorized nitrogen hypoxia as a method of execution. See 2018 Ala. Acts no. 2018–353 (allowing condemned inmates to elect execution by nitrogen hypoxia); 2017 Miss. Laws ch. 406, p. 905 (authorizing execution by nitrogen hypoxia only if lethal injection is held unconstitutional or is otherwise unavailable); 2015 Okla. Sess. Laws ch. 75, p. 244 (same). In March 2018, officials in Oklahoma announced that, due to the unavailability of lethal injection drugs, the State would use nitrogen gas for its executions going forward. See Williams, Oklahoma Proposes To Use Nitrogen Gas for Executions by Asphyxiation, N. Y. Times, Mar. 15, 2018, p. A22. But Oklahoma has so far been unable to find a manufacturer willing to sell it a gas delivery device for use in executions. See Clay, State Not Ready for Executions, The Oklahoman, Jan. 27, 2019, p. A1. To date, no one in this case has pointed us to an execution in this country using nitrogen gas. 2 While the district court allowed discovery on many other matters, Mr. Bucklew protests that it did not permit him to learn the identities of the lethal injection execution team members, to depose them, or to inquire into their qualifications, training, and experience. Like the Eighth Circuit, we see no abuse of discretion in the district court’s discovery rulings. As the district court explained, Mr. Bucklew argues that there is no way he may be constitutionally executed by lethal injection, even with modifications to the State’s lethal injection protocol. And in a case like that, discovery into such granular matters as who administers the protocol simply is not relevant. 3 Here’s the full quotation, with the portion quoted by the dissent underlined: “As a result of his inability to maintain the integrity of his airway for the period of time beginning with the injection of the Pentobarbital solution and ending with Mr. Bucklew’s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience feelings of ‘air hunger’ and the excruciating pain of prolonged suffocation resulting from the complete obstruction of his airway by the large vascular tumor.” App. 222. 4 The State contends that Mr. Bucklew’s claim should fail for yet another reason: because, in the State’s view, the evidence does not show that he is very likely to suffer “ ‘ severe pain’ ” cognizable under the Eighth Amendment. Glossip v. Gross , 576 U. S. ___, ___ (2015) (slip op., at 13) (quoting Baze v. Rees , 553 U.S. 35 , 52 (2008); emphasis added). We have no need, however, to address that argument because (as explained above) Mr. Bucklew fails even to show that a feasible and readily available alternative could significantly reduce the pain he alleges. 5 Seeking to relitigate Dunn v. Ray , the principal dissent asserts that that case involved no undue delay because the inmate “brought his claim only five days after he was notified” that the State would not allow his spiritual adviser to be present with him in the execution chamber itself, although it would allow the adviser to be present on the other side of a glass partition. Post , at 17. But a state statute listed “[t]he spiritual adviser of the condemned” as one of numerous individ-uals who would be allowed to “be present at an execution,” many of whom—such as “newspaper reporters,” “relatives or friends of the condemned person,” and “the victim’s immediate family members”—obviously would not be allowed into the chamber itself. Ala. Code §15–18–83 (2018). The inmate thus had long been on notice that there was a question whether his adviser would be allowed into the chamber or required to remain on the other side of the glass. Yet although he had been on death row since 1999, and the State had set a date for his execution on November 6, 2018, he waited until January 23, 2019—just 15 days before the execution—to ask for clarification. He then brought a claim 10 days before the execution and sought an indefinite stay. This delay implicated the “strong equitable presumption” that no stay should be granted “where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Hill v. McDonough , 547 U.S. 573, 584 (2006). SUPREME COURT OF THE UNITED STATES _________________ No. 17–8151 _________________ RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 1, 2019] Justice Thomas, concurring. I adhere to my view that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.” Baze v. Rees , 553 U.S. 35 , 94 (2008) (opinion concurring in judgment); ante , at 14. Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there. Nonetheless, I join the Court’s opinion in full because it correctly explains why Bucklew’s claim fails even under the Court’s precedents. I write separately to explain why Justice Breyer’s dissenting opinion does not cast doubt on this standard. Post , at 15–16. As I explained in Baze , “the evil the Eighth Amendment targets is intentional infliction of gratuitous pain.” 553 U. S., at 102 (opinion concurring in judgment). The historical evidence shows that the Framers sought to disable Congress from imposing various kinds of torturous punishments, such as “ ‘gibbeting,’ ” “burning at the stake,” and “ ‘embowelling alive, beheading, and quartering.’ ” Id. , at 95–98 (quoting 4 W. Blackstone, Commentaries *376 (Blackstone), and S. Banner, The Death Penalty: An American History 71–72 (2002)). In England, these aggravated forms of capital punishment were “ ‘superadded’ ” to increase terror and disgrace for “ ‘very atrocious crimes,’ ” such as treason and murder. See Baze , supra , at 96–97 (quoting 4 Blackstone *376). The founding generation ratified the Eighth Amendment to reject that practice, contemplating that capital punishment would continue, but without those punishments deliberately designed to superadd pain. See Baze , 553 U. S., at 97–98. Under this view, the constitutionality of a particular execution thus turns on whether the Government “deliberately designed” the method of execution “to inflict pain,” id., at 94, without regard to the subjective intent of the executioner. Contrary to Justice Breyer’s suggestion, my view does not render the Eighth Amendment “a static prohibition” proscribing only “the same things that it proscribed in the 18th century.” Post, at 15–16. A method of execution not specifically contemplated at the founding could today be imposed to “superad[d]” “terror, pain, or disgrace.” 4 Blackstone *376. Thankfully—and consistent with Justice Story’s view that the Eighth Amendment is “wholly unnecessary in a free government,” 3 J. Story, Commentaries on the Constitution of the United States 750 (1833)—States do not attempt to devise such diabolical punishments. E.g. , Baze , supra , at 107 (“Kentucky adopted its lethal injection protocol in an effort to make capital punishment more humane”). It is therefore unsurprising that, despite Justice Breyer’s qualms about the death pen- alty, e.g. , post , at 18, this Court has never held a method of execution unconstitutional. Because the Court correctly declines to do so again today, I join in full. SUPREME COURT OF THE UNITED STATES _________________ No. 17–8151 _________________ RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 1, 2019] Justice Kavanaugh, concurring. When an inmate raises an as-applied constitutional challenge to a particular method of execution—that is, a challenge to a method of execution that is constitutional in general but that the inmate says is very likely to cause him severe pain—one question is whether the inmate must identify an available alternative method of execution that would significantly reduce the risk of severe pain. Applying our recent decisions in Glossip v. Gross , 576 U. S. ___ (2015), and Baze v. Rees , 553 U.S. 35 (2008) (plurality opinion), the Court’s answer to that question is yes. Under those precedents, I agree with the Court’s holding and join the Court’s opinion. I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision. See Arthur v. Dunn , 580 U. S. ___, ___–___ (2017) (slip op., at 9–11) (Sotomayor, J., dissenting from denial of certiorari). Importantly, all nine Justices today agree on that point. Ante , at 19; post , at 14 (Breyer, J., dissenting). As the Court notes, it follows from that additional holding that the burden of the alternative-method requirement “can be overstated.” Ante , at 19. Indeed, the Court states: “[W]e see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.” Ante , at 20. In other words, an inmate who contends that a particular method of execution is very likely to cause him severe pain should ordinarily be able to plead some alternative method of execution that would significantly reduce the risk of severe pain. At oral argument in this Court, the State suggested that the firing squad would be such an available alternative, if adequately pleaded. Tr. of Oral Arg. 63–64 (“He can plead firing squad. . . . Of course, if he had . . . pleaded firing squad, it’s possible that Missouri could have executed him by firing squad”). Justice Sotomayor has likewise explained that the firing squad is an alternative method of execution that generally causes an immediate and certain death, with close to zero risk of a botched execution. See Arthur , 580 U. S., at ___–___ (slip op., at 17–18). I do not here prejudge the question whether the firing squad, or any other alternative method of execution, would be a feasible and readily implemented alternative for every State. See McGehee v. Hutchinson , 854 F.3d 488, 493–494 (CA8 2017). Rather, I simply emphasize the Court’s statement that “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.” Ante , at 20. SUPREME COURT OF THE UNITED STATES _________________ No. 17–8151 _________________ RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 1, 2019] Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join as to all but Part III, dissenting. The Court’s decision in this case raises three questions. The first is primarily a factual question, namely, whether Bucklew has established genuine issues of material fact concerning whether executing him by lethal injection would cause him excessive suffering. The second is primarily a legal question, namely, whether a prisoner like Bucklew with a rare medical condition must identify an alternative method by which the State may execute him. And the third is a more general question, namely, how to minimize delays in executing offenders who have been condemned to death. I disagree with the majority’s answers to all three questions. Bucklew cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies. That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering. The majority holds that the State may execute him anyway. In my view, that holding violates the clear command of the Eighth Amendment. I I begin with a factual question: whether Bucklew has established that, because of his rare medical condition, the State’s current method of execution risks subjecting him to excessive suffering. See Glossip v. Gross , 576 U. S. ___, ___ (2015) (slip op., at 13) (requiring “a demonstrated risk of severe pain”); see also Baze v. Rees , 553 U.S. 35 , 50 (2008) (plurality opinion) (requiring “a substantial risk of serious harm” (internal quotation marks omitted)). There is no dispute as to the applicable summary judgment standard. Because the State moved for summary judgment, it can prevail if, but only if, it “shows that there is no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 , 248 (1986). On review, we examine the record as a whole, which includes “depositions, documents, [and] affidavits or declarations.” Rule 56(c). And we must construe the evidence in the light most favorable to Bucklew and draw every justifiable inference in his favor. See Tolan v. Cotton , 572 U.S. 650, 651 (2014) ( per curiam ). A Bucklew has easily established a genuine issue of material fact regarding whether an execution by lethal injection would subject him to impermissible suffering. The record indicates that Bucklew suffers from a congenital condition known as cavernous hemangioma that causes tumors filled with blood vessels to grow throughout his body, including in his head, face, neck, and oral cavity. The condition is rare. One study estimates that hemangiomas in the oral cavity occur in less than one percent of the population, and that hemangiomas like Bucklew’s have been identified in five cases. See Wang, Chen, Mojica, & Chen, Cavernous Hemangioma of the Uvula, 8 N. Am. J. Med. & Sci. 56, 56–59 (2015). Tumors grow out of Bucklew’s lip and over his mouth, as well as on his hard and soft palates. One tumor also grows directly on Bucklew’s uvula, which has become “grossly enlarged” as a result. App. 225. (The uvula is the “pendent fleshy lobe” that hangs from the back of the throat. Merriam-Webster’s Collegiate Dictionary 1379 (11th ed. 2003).) Bucklew’s tumors obstruct his airway and make it difficult for him to breathe. His difficulty breathing is chronic, but is particularly acute when he lies flat and gravity pulls his engorged uvula into his airway. He often has to adjust the positioning of his head to prevent his uvula from obstructing his breathing. He sleeps at a 45-degree angle to facilitate breathing, and he often wakes up in the middle of the night gasping for air. Due to the sensitivity of his tumors, even minimal contact may cause them to hemorrhage. He has described past hemorrhages as “ ‘squirting’ ” or “leaking” blood, and he states that the first thing he does each morning is to wipe the blood off his face that leaked from his nose and mouth as he slept. Bucklew’s condition is progressive and, due to the risk of significant blood loss caused by the sensitivity of his tumors, cannot be treated by surgery. Bucklew maintains that, as a result of this medical condition, executing him by lethal injection would prove excruciatingly painful. In support of this claim, Bucklew submitted sworn declarations and deposition testimony from an expert witness, Dr. Joel Zivot, an anesthesiologist. Dr. Zivot provided extensive testimony regarding the pain that Bucklew would likely endure in an execution by lethal injection: Dr. Zivot testified that in light of “the degree to which Mr. Bucklew’s airway is compromised by the hemangiomas” and “the particular psychological and physical effects of lethal injection, it is highly likely that Mr. Bucklew would be unable to maintain the integrity of his airway during the time after receiving the lethal injection and before death.” App. 221. Dr. Zivot explained that, as a result of “the highly friable and fragile state of the tissue of Mr. Bucklew’s mouth and airway,” Bucklew “will likely experience hemorrhaging and/or the possible rupture of the tumor” on his uvula during his execution. Id ., at 222. Dr. Zivot added that the “hemorrhaging will further impede Mr. Bucklew’s airway by filling his mouth and airway with blood, causing him to choke and cough on his own blood.” Ibid . Dr. Zivot concluded that “it is highly likely that Mr. Bucklew, given his specific congenital medical condition, cannot undergo lethal injection without experiencing the excruciating pain and suffering” of “suffocation, convulsions, and visible hemorrhaging.” Id ., at 223. Dr. Zivot also testified about the duration of pain to which an execution by lethal injection would subject Bucklew, describing it as “prolonged.” Id ., at 234. Dr. Zivot stated that the effects of a pentobarbital injection “are highly unlikely to be instantaneous and the period of time between receiving the injection and death could range over a few minutes to many minutes .” Id ., at 222 (emphasis added). Dr. Zivot “strongly disagree[d] with [the State’s expert’s] repeated claim that the pentobarbital injection would result in ‘rapid unconsciousness.’ ” Id ., at 233. Dr. Zivot explained that Bucklew “would likely experience unconsciousness that sets in progressively as the chemical circulates through his system” and that it was during this period that Bucklew was “likely to experience prolonged feelings of suffocation and excruciating pain.” Id ., at 233–234. The State asked the District Court to grant summary judgment in its favor on the theory that Bucklew failed to identify a genuine factual issue regarding whether an execution by lethal injection would be impermissibly painful. The District Court refused. The court believed that Bucklew had adequately shown that for up to several minutes he “could be aware that he is choking or unable to breathe but be unable to ‘adjust’ his breathing to remedy the situation.” Id ., at 827. Recognizing that the State’s evidence suggested that Bucklew would experience this choking sensation for a shorter period, the District Court concluded that the dispute between the experts was “a factual dispute that the Court cannot resolve on summary judgment, and would have to be resolved at trial.” Ibid. The District Court was right. The evidence, taken in the light most favorable to Bucklew, creates a genuine factual issue as to whether Missouri’s lethal injection protocol would subject him to several minutes of “severe pain and suffering,” Glossip , 576 U. S., at ___ (slip op., at 13), during which he would choke and suffocate on his own blood. In my view, executing Bucklew by forcing him to choke on his grossly enlarged uvula and suffocate on his blood would exceed “the limits of civilized standards.” Kennedy v. Louisiana , 554 U.S. 407 , 435 (2008) (internal quotation marks omitted); see also Trop v. Dulles , 356 U.S. 86 , 100–101 (1958) (plurality opinion). The experts dispute whether Bucklew’s execution will prove as unusually painful as he claims, but resolution of that dispute is a matter for trial. B The majority, while characterizing the matter as “critical,” says that there is “nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds after being injected with pentobarbital.” Ante , at 26. But what about Dr. Zivot’s testimony that the time between injection and death “could range over a few minutes to many minutes”? App. 222. What about Dr. Zivot’s characterization of the pain involved as “prolonged”? Id. , at 234. What about Dr. Zivot’s “stron[g] disagree[ment] with [the State’s expert’s] repeated claim that the pentobarbital injection would result in ‘rapid unconsciousness’ ”? Id ., at 233. The majority construes Dr. Zivot’s testimony to show only that Bucklew might remain alive for several minutes after the injection, not that he will be capable of feeling pain for several minutes after the injection. Ante , at 27. But immediately following his prediction that the time between injection and death could range up to many minutes, Dr. Zivot stated that “beginning with the injection of the Pentobarbital solution and ending with Mr. Bucklew’s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience feelings of ‘air hunger’ and the excruciating pain of prolonged suffocation .” App. 222 (emphasis added). Dr. Zivot thus testified both that lethal injection would take up to several minutes to kill Bucklew and that Bucklew would experience excruciating pain during this period. And it is not the case, as the majority believes, that Dr. Zivot “carefully avoided claiming that Mr. Bucklew would be capable of feeling pain until he died,” ante , at 28, particularly given that the record must be construed in the light most favorable to Bucklew. The majority also justifies its refusal to credit Dr. Zivot’s testimony on the ground that Dr. Zivot gave a response during his deposition suggesting that he misinterpreted a study of euthanasia in horses. Ante , at 26–27. Bucklew’s expert, however, did not rely exclusively or even heavily upon that study; he mentioned it only in response to a question posed in his deposition. To the contrary, Dr. Zivot explained that his testimony regarding the pain to which Bucklew would be subjected was “supported both by [his] own professional knowledge of how chemicals of this type are likely to exert their effects in the body as well as by the terms of Missouri’s Execution Procedure.” App. 222. Whether any mistake about the importance of a single study makes all the difference to Bucklew’s case is a matter not for this Court to decide at summary judgment, but for the factfinder to resolve at trial. As Judge Colloton pointed out in dissent below, attacks on the “reliability and credibility of Dr. Zivot’s opinion,” including “his possible misreading of the horse study on which he partially relied,” give rise to factual disputes. See 883 F.3d 1087, 1099 (CA8 2018). Judge Colloton therefore concluded that “[t]he district court did not err in concluding that it could not resolve the dispute between the experts on summary judgment.” Ibid. I agree. II This case next presents a legal question. The Court in Glossip held in the context of a facial challenge to a State’s execution protocol that the plaintiffs were required not only to establish that the execution method gave rise to a “demonstrated risk of severe pain,” but also to identify a “known and available” alternative method. 576 U. S., at ___ (slip op., at 13). The Court added that the alternative must be “feasible, readily implemented, and in fact significantly reduc[e] a substantial risk of severe pain.” Id., at ___–___ (slip op., at 12–13) (internal quotation marks omitted). I joined the dissent in Glossip, but for present purposes I accept the Glossip majority opinion as governing. I nonetheless do not believe its “alternative method” requirement applies in this case. We “often read general language in judicial opinion[s] as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering.” Illinois v. Lidster , 540 U.S. 419 , 424 (2004). And while I acknowledge that the Court in Glossip spoke in unqualified terms, the circumstances in Glossip were indeed “different” in relevant respects from the circumstances presented here. A The plaintiffs in Glossip undertook an across-the-board attack against the use of a particular execution method, which they maintained violated the Eighth Amendment categorically. In this case, by contrast, Bucklew does not attack Missouri’s lethal injection protocol categorically, or even in respect to any execution other than his own. Instead, he maintains that he is special; that he suffers from a nearly unique illness; and that, by virtue of that illness, Missouri’s execution method will be excruciatingly painful for him even though it would not affect others in the same way. These differences make a difference. First , these differences show that the reasons that underlie Glossip ’s “alternative method” requirement do not apply here. The Glossip Court stressed the importance of preventing method-of-execution challenges from becoming a backdoor means to abolish capital punishment in general. The Court wrote that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” Glossip , 576 U. S., at ___ (slip op., at 4) (alterations omitted). The Court added that “we have time and again reaffirmed that capital punishment is not per se unconstitutional.” Id. , at ___ (slip op., at 16). And the Court feared that allowing prisoners to invalidate a State’s method of execution without identifying an alternative would “effectively overrule these decisions.” Ibid. But there is no such risk here. Holding Missouri’s lethal injection protocol unconstitutional as applied to Bucklew—who has a condition that has been identified in only five people, see supra, at 2–3—would not risk invalidating the death penalty in Missouri. And, because the State would remain free to execute prisoners by other permissible means, declining to extend Glossip ’s “alternative method” requirement in this context would be unlikely to exempt Bucklew or any other prisoner from the death penalty. Even in the unlikely event that the State could not identify a permissible alternative in a particular case, it would be perverse to treat that as a reason to execute a prisoner by the method he has shown to involve excessive suffering. The Glossip Court, in adopting the “alternative method” requirement, relied on The Chief Justice’s plurality opinion in Baze , which discussed the need to avoid “intrud[ing] on the role of state legislatures in implementing their execution procedures.” 553 U. S., at 51; see also ante , at 13 (we owe “a measure of deference to a State’s choice of execution procedures” (internal quotation marks omitted)). But no such intrusion problem exists in a case like this one. When adopting a method of execution, a state legislature will rarely consider the method’s application to an individual who, like Bucklew, suffers from a rare disease. It is impossible to believe that Missouri’s legislature, when adopting lethal injection, considered the possibility that it would cause prisoners to choke on their own blood for up to several minutes before they die. Exempting a prisoner from the State’s chosen method of execution in these circumstances does not interfere with any legislative judgment. The Court in Glossip may have also believed that the identification of a permissible alternative method of execution would provide a reference point to assist in determining how much pain in an execution is too much pain. See 576 U. S., at ___–___ (slip op., at 12–13); Baze , 553 U. S., at 47, 51 (plurality opinion); see also ante , at 15 (arguing that determining the constitutionality of a method of execution “is a necessarily comparative exercise”). But there is no need for any such reference point in a case like this. Bucklew accepts the constitutionality of Missouri’s chosen execution method as to prisoners who do not share his medical condition. See Brief for Petitioner 36. We are informed that this method has been used in 20 executions, apparently without subjecting prisoners to undue pain. See Brief for Respondents 5. To the extent that any comparator is needed, those executions provide a readymade, built-in comparator against which a court can measure the degree of excessive pain Bucklew will suffer. Second , precedent counsels against extending Glossip . Neither this Court’s oldest method-of-execution case, Wilkerson v. Utah , 99 U.S. 130 (1879) , nor any subsequent decision of this Court until Glossip , held that prisoners who challenge a State’s method of execution must identify an alternative means by which the State may execute them.  To the contrary, in Hill v. McDonough , 547 U.S. 573 (2006), the Court squarely and unanimously rejected the argument that a prisoner must “identif[y] an alternative, authorized method of execution.” Id. , at 582. The Court noted that any such requirement would “change the traditional pleading requirements for §1983 actions,” which we were not at liberty to do. Ibid. It is thus difficult to see how the “alternative-method” requirement could be “compelled by our understanding of the Constitution,” ante , at 17, even though the Constitution itself never hints at such a requirement, even though we did not apply such a requirement in more than a century of method-of-execution cases, and even though we unanimously rejected such a requirement in Hill . And while the Court in Glossip did not understand itself to be bound by Hill , see Glossip , 576 U. S., at ___ (slip op., at 15) (distinguishing Hill on the theory that Hill merely rejected a heightened pleading requirement for §1983 suits), the two decisions remain in considerable tension. Confining Glossip ’s “alternative method” requirement to facial challenges would help to reconcile them. Third , the troubling implications of today’s ruling provide the best reason for declining to extend Glossip ’s “alternative method” requirement. The majority acknowledges that the Eighth Amendment prohibits States from executing prisoners by “ ‘horrid modes of torture’ ” such as burning at the stake. Ante , at 10. But the majority’s decision permits a State to execute a prisoner who suffers from a medical condition that would render his execution no less painful. Bucklew has provided evidence of a serious risk that his execution will be excruciating and grotesque. The majority holds that the State may execute him anyway. That decision confirms the warning leveled by the Glossip dissent—that the Court has converted the Eighth Amendment’s “categorical prohibition into a conditional one.” 576 U. S., at ___ (opinion of Sotomayor, J.) (slip op., at 24). B Even assuming for argument’s sake that Bucklew must bear the burden of showing the existence of a “known and available” alternative method of execution that “significantly reduces a substantial risk of severe pain,” id ., at ___ (majority opinion) (slip op., at 13) (alteration and internal quotation marks omitted), Bucklew has satisfied that burden. The record contains more than enough evidence on the point to raise genuine and material factual issues that preclude summary judgment. Bucklew identified as an alternative method of execution the use of nitrogen hypoxia, which is a form of execution by lethal gas. Missouri law permits the use of this method of execution. See Mo. Rev. Stat. §546.720 (2002). Three other States—Alabama, Mississippi, and Okla-homa—have specifically authorized nitrogen hypoxia as a method of execution. See ante, at 22, n. 1. And Bucklew introduced into the record reports from Oklahoma and Louisiana indicating that nitrogen hypoxia would be simple and painless. These reports summarized the scientific literature as indicating that there is “no reported physical discom[fort] associated with inhaling pure nitrogen,” App. 742, that the “onset of hypoxia is typically so subtle that it is unnoticeable to the subject,” id ., at 745, and that nitrogen hypoxia would take an estimated “seventeen-to-twenty seconds” to render a subject unconscious, id., at 746–747. The Oklahoma study concluded that nitrogen hypoxia is “the most humane method” of execution available. Id., at 736. And the Louisiana study stated that the “[u]se of nitrogen as a method of execution can assure a quick and painless death of the offender.” Id ., at 746. How then can the majority conclude that Bucklew has failed to identify an alternative method of execution? The majority finds Bucklew’s evidence inadequate in part because, in the majority’s view, it does not show that nitrogen hypoxia will “significantly reduce” Bucklew’s risk of pain as compared with lethal injection. Ante , at 23. But the majority does not dispute the evidence suggesting that nitrogen hypoxia would be “quick and painless” and would take effect in 20 to 30 seconds. The majority instead believes that “nothing in the record” suggests that lethal injection would take longer than nitrogen gas to take effect. Ante , at 26. As I have already explained, the majority reaches this conclusion by overlooking considerable evidence to the contrary—such as Dr. Zivot’s testimony that Bucklew’s pain would likely prove “prolonged,” App. 234, that lethal injection would not “result in ‘rapid unconsciousness,’ ” id ., at 233, and that from the time of injection to “Mr. Bucklew’s death several minutes to as long as many minutes later, Mr. Bucklew would be highly likely to experience . . . the excruciating pain of prolonged suffocation,” id ., at 222. In discounting this evidence, the majority simply fails “to adhere to the axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tolan , 572 U. S., at 651 (internal quotation marks and alteration omitted). The majority additionally believes that Bucklew’s evidence fails to show that nitrogen hypoxia would be easy to implement. Ante , at 21. But the reports from Oklahoma and Louisiana tell a different story. The Louisiana report states that nitrogen hypoxia would be “simple to administer.” App. 737. The Oklahoma report similarly concludes that “[d]eath sentences carried out by nitrogen inhalation would be simple to administer.” Id ., at 746; see also id., at 696. The reports explain that nitrogen hypoxia would “not require the use of a complex medical procedure or pharmaceutical products,” id ., at 747, would “not require the assistance of licensed medical professionals,” id ., 736, and would require only materials that are “readily available for purchase,” id., at 739. Further, “[b]ecause the protocol involved in nitrogen induced hypoxia is so simple, mistakes are unlikely to occur.” Id ., at 748. And both studies recommend the development of protocols for actual implementation. See id., at 697 (Oklahoma report recommending development of “a nitrogen hypoxia protocol”); id., at 736 (Louisiana report noting that although “the exact protocol” has not been finalized, the report recommends “that hypoxia induced by the inhalation of nitrogen be considered for adoption”); see also Murphy, Oklahoma Says It Plans To Use Nitrogen for Executions, USA Today, Mar. 15, 2018 (quoting the Oklahoma attorney general’s statement that nitrogen “will be effective, simple to administer, easy to obtain and requires no complex medical procedures”); but cf. ante , at 21. Presented with evidence such as Bucklew’s, I believe a State should take at least minimal steps to determine the feasibility of the proposed alternative. The responsible state official in this case, however, acknowledged that he “did not conduct research concerning the feasibility of lethal gas as a method of execution in Missouri.” Id., at 713; see also Record in No. 14–800 (WD Mo.), Doc. 182–6, p. 16 (different official acknowledging that, “to be candid, no, I did not go out and try to find answers to those questions”). The majority sensibly recognizes that an inmate seeking to identify an alternative method of execution “is not limited to choosing among those presently authorized by a particular State’s law.” Ante , at 19. But the majority faults Bucklew for failing to provide guidance about the administration of nitrogen hypoxia down to the last detail. The majority believes that Bucklew failed to present evidence “on essential questions” such as whether the nitrogen should be administered “using a gas chamber, a tent, a hood, [or] a mask”; or “in what concentration (pure nitrogen or some mixture of gases)” it should be administered; or even how the State might “protec[t the execution team] against the risk of gas leaks.” Ante, at 21. Perhaps Bucklew did not provide these details. But Glossip did not refer to any of these requirements; today’s majority invents them. And to insist upon them is to create what, in a case like this one, would amount to an insurmountable hurdle for prisoners like Bucklew. That hurdle, I fear, could permit States to execute even those who will endure the most serious pain and suffering, irrespective of how exceptional their case and irrespective of how thoroughly they prove it. I cannot reconcile the majority’s decision with a constitutional Amendment that forbids all “cruel and unusual punishments.” Amdt. 8. C Justice Thomas concurs in the majority’s imposition of an “alternative method” requirement, but would also permit Bucklew’s execution on the theory that a method of execution violates the Eighth Amendment “ ‘only if it is deliberately designed to inflict pain.’ ” Ante , at 1 (concurring opinion) (quoting Baze , 553 U. S., at 94 (Thomas, J., concurring in judgment)). But that is not the proper standard. For one thing, Justice Thomas’ view would make the constitutionality of a particular execution turn on the intent of the person inflicting it. But it is not correct that concededly torturous methods of execution such as burning alive are impermissible when imposed to inflict pain but not when imposed for a subjectively different purpose. To the prisoner who faces the prospect of a torturous execution, the intent of the person inflicting the punishment makes no difference. For another thing, we have repeatedly held that the Eighth Amendment is not a static prohibition that proscribes the same things that it proscribed in the 18th century. Rather, it forbids punishments that would be considered cruel and unusual today. The Amendment prohibits “unnecessary suffering” in the infliction of punishment, which this Court has understood to prohibit punishments that are “grossly disproportionate to the severity of the crime” as well as punishments that do not serve any “penological purpose.” Estelle v. Gamble , 429 U.S. 97 , 103, and n. 7 (1976). The Constitution prohibits gruesome punishments even though they may have been common at the time of the founding. Few would dispute, for example, the unconstitutionality of “a new law providing public lashing, or branding of the right hand, as punishment . . . [e]ven if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791.” Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 861 (1989). The question is not, as Justice Thomas maintains, whether a punishment is deliberately inflicted to cause unnecessary pain, but rather whether we would today consider the punishment to cause excessive suffering. III Implicitly at the beginning of its opinion and explicitly at the end, the majority invokes the long delays that now typically occur between the time an offender is sentenced to death and his execution. Bucklew was arrested for the crime that led to his death sentence more than 20 years ago. And Bucklew’s case is not an anomaly. The average time between sentencing and execution approaches 18 years and in some instances rises to more than 40 years. See Glossip , 576 U. S., at ___ (Breyer, J., dissenting) (slip op., at 18); Reynolds v. Florida , 586 U. S. ___, ___ (2018) (Breyer, J., statement respecting denial of certiorari) (slip op., at 2). I agree with the majority that these delays are excessive. Undue delays in death penalty cases frustrate the interests of the State and of surviving victims, who have “an important interest” in seeing justice done quickly. Hill , 547 U. S., at 584. Delays also exacerbate the suffering that accompanies an execution itself. Glossip , 576 U. S., at ___–___ (Breyer, J., dissenting) (slip op., at 19–23). Delays can “aggravate the cruelty of capital punishment” by subjecting the offender to years in solitary confinement, and delays also “undermine [capital punishment’s] jurisprudential rationale” by reducing its deterrent effect and retributive value. Id., at ___, ___ (slip op., at 28, 32). The majority responds to these delays by curtailing the constitutional guarantees afforded to prisoners like Bucklew who have been sentenced to death. By adopting elaborate new rules regarding the need to show an alternative method of execution, the majority places unwarranted obstacles in the path of prisoners who assert that an execution would subject them to cruel and unusual punishment. These obstacles in turn give rise to an unacceptable risk that Bucklew, or others in yet more difficult circumstances, may be executed in violation of the Eighth Amendment. Given the rarity with which cases like this one will arise, an unfortunate irony of today’s decision is that the majority’s new rules are not even likely to improve the problems of delay at which they are directed. In support of the need to end delays in capital cases, the majority refers to Dunn v. Ray , 586 U. S. ___ (2019). In that case, the Court vacated a stay of execution on the ground that the prisoner brought his claim too late. The prisoner in that case, however, brought his claim only five days after he was notified of the policy he sought to challenge. See id., at ___ (Kagan, J., dissenting) (slip op., at 3). And in the view of some of us, the prisoner’s claim—that prisoners of some faiths were entitled to have a minister present at their executions while prisoners of other faiths were not—raised a serious constitutional question. See id. , at ___ (slip op., at 2) (characterizing the Court’s decision as “profoundly wrong”). And therein lies the problem. It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price. Today’s majority appears to believe that because “[t]he Constitution allows capital punishment,” ante , at 8, the Constitution must allow capital punishment to occur quickly. In reaching that conclusion the majority echoes an argument expressed by the Court in Glossip , namely, that “because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out.” 576 U. S., at ___ (slip op., at 4) (emphasis added; alterations and internal quotation marks omitted). These conclusions do not follow. It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law’s most severe sanction. And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty. I have elsewhere written about these problems. See id ., at ___–___ (Breyer, J., dissenting) (slip op., at 29–33). And I simply conclude here that the law entitles Bucklew to an opportunity to prove his claim at trial. I note, however, that this case adds to the mounting evidence that we can either have a death penalty that avoids excessive delays and “arguably serves legitimate penological purposes,” or we can have a death penalty that “seeks reliability and fairness in the death penalty’s application” and avoids the infliction of cruel and unusual punishments. Id. , at ___ (slip op., at 32). It may well be that we “cannot have both.” Ibid. *  *  * I respectfully dissent. SUPREME COURT OF THE UNITED STATES _________________ No. 17–8151 _________________ RUSSELL BUCKLEW, PETITIONER v. ANNE L. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 1, 2019] Justice Sotomayor, dissenting. As I have maintained ever since the Court started down this wayward path in Glossip v. Gross , 576 U. S. ___ (2015), there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions. Justice Breyer ably explains why today’s extension of Glossip ’s alternative-method requirement is misguided (even on that precedent’s own terms), and why (with or without that requirement) a trial is needed to determine whether Missouri’s planned means of executing Russell Bucklew creates an intolerable risk of suffering in light of his rare medical condition. I join Justice Breyer’s dissent, except for Part IV. I write separately to address the troubling dicta with which the Court concludes its opinion. I Given the majority’s ominous words about late-arising death penalty litigation, ante, at 29–30, one might assume there is some legal question before us concerning delay. Make no mistake: There is not. The majority’s commentary on once and future stay applications is not only inessential but also wholly irrelevant to its resolution of any issue before us. The majority seems to imply that this litigation has been no more than manipulation of the judicial process for the purpose of delaying Bucklew’s execution. Ante, at 29. When Bucklew commenced this case, however, there was nothing “settled,” ibid. , about whether the interaction of Missouri’s lethal-injection protocol and his rare medical condition would be tolerable under the Eighth Amendment. At that time, Glossip had not yet been decided, much less extended to any as-applied challenge like Bucklew’s. In granting prior stay requests in this case, we acted as necessary to ensure sufficient time for sober review of Bucklew’s claims. The majority laments those decisions, but there is nothing unusual—and certainly nothing untoward—about parties pressing, and courts giving full consideration to, potentially meritorious constitutional claims, even when those claims do not ultimately succeed. II I am especially troubled by the majority’s statement that “[l]ast-minute stays should be the extreme exception,” which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye. See ante, at 30. Were those comments to be mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role. Courts’ equitable discretion in handling stay requests is governed by well-established principles. See Nken v. Holder , 556 U.S. 418 , 434 (2009). Courts examine the stay applicant’s likelihood of success on the merits, whether the applicant will suffer irreparable injury without a stay, whether other parties will suffer substantial injury from a stay, and public interest considerations. Ibid . It is equally well established that “[d]eath is a punish-ment different from all other sanctions in kind rather than degree.” Woodson v. North Carolina , 428 U.S. 280 , 303–304 (1976). For that reason, the equities in a death penalty case will almost always favor the prisoner so long as he or she can show a reasonable probability of success on the merits. See Nken , 556 U. S., at 434 (noting that success on the merits and irreparable injury “are the most critical” factors); cf. Glossip , 576 U. S., at ___ (slip op., at 11) (observing, in a preliminary-injunction posture, that “[t]he parties agree that this case turns on whether petitioners are able to establish a likelihood of success on the merits” and analyzing the case accordingly); accord , id ., at ___ (Sotomayor, J., dissenting) (slip op., at 22). This accords with each court’s “ ‘duty to search for constitutional error with painstaking care’ ” in capital cases. Kyles v. Whitley , 514 U.S. 419 , 422 (1995). It is of course true that a court may deny relief when a party has “unnecessarily” delayed seeking it, Nelson v. Campbell , 541 U.S. 637 , 649–650 (2004), and that courts should not grant equitable relief on clearly “ ‘dilatory,’ ” “ ‘speculative,’ ” or meritless grounds, ante , at 31 (quoting Hill v. McDonough , 547 U.S. 573, 584–585 (2006)); see also Gomez v. United States Dist. Court for Northern Dist. of Cal. , 503 U.S. 653, 654 (1992) ( per curiam ) (vacating a stay where an inmate’s unjustified 10-year delay in bringing a claim was an “obvious attempt at manipulation”). That is hardly the same thing as treating late-arising claims as presumptively suspect.[ 1 ] The principles of federalism and finality that the major- ity invokes are already amply served by other constraints on our review of state judgments—most notably the Antiterrorism and Effective Death Penalty Act of 1996, but also statutes of limitations and other standard filters for dilatory claims. We should not impose further constraints on judicial discretion in this area based on little more than our own policy impulses. Finality and federalism need no extra thumb on the scale from this Court, least of all with a human life at stake. The only sound approach is for courts to continue to afford each request for equitable relief a careful hearing on its own merits. That responsibility is never graver than when the litigation concerns an impending execution. See, e.g., Kyles , 514 U. S., at 422; Woodson , 428 U. S., at 303–304. Meritorious claims can and do come to light even at the eleventh hour, and the cost of cursory review in such cases would be unacceptably high. See Glossip , 576 U. S., at ___–___ (Breyer, J., dissenting) (slip op., at 21–22) (collecting examples of inmates who came “within hours or days of execution before later being exonerated”). A delay, moreover, may be entirely beyond a prisoner’s control. Execution methods, for example, have been moving targets subject to considerable secrecy in recent years, which means that constitutional concerns may surface only once a State settles on a procedure and communicates its choice to the prisoner.[ 2 ] In other contexts, too, fortuity or the imminence of an execution may shake loose constitutionally significant information when time is short.[ 3 ] There are higher values than ensuring that executions run on time. If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness. Notes 1 A skewed view of the facts caused the majority to misapply these principles and misuse its “equitable powers,” see ante, at 30, and n. 5, in vacating the Court of Appeals’ unanimous stay in Dunn v. Ray , 586 U. S. ___ (2019). Even today’s belated explanation from the majority rests on the mistaken premise that Domineque Ray could have figured out sooner that Alabama planned to deny his imam access to the execution chamber. But see id., at ___ (Kagan, J., dissenting) (slip op., at 3) (noting that the governing statute authorized both the inmate’s imam and the prison’s Christian chaplain to attend the execution, and that “the prison refused to give Ray a copy of its own practices and procedures” that would have clarified the two clergymen’s degrees of access); Ray v. Commissioner, Ala. Dept. of Corrections , 915 F.3d 689, 701–703 (CA11 2019). 2 See Zagorski v. Parker , 586 U. S. ___, ___–___ (2018) (Sotomayor, J., dissenting from denial of application for stay and denial of certio-rari) (slip op., at 2–3) (describing Tennessee’s recent equivocation about the availability of its preferred lethal injection protocol); Glossip , 576 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 29) (noting States’ “scramble” to formulate “new and untested” execution methods); Sepulvado v. Jindal , 739 F.3d 716, 717–718 (CA5 2013) (Dennis, J., dissenting from denial of rehearing en banc) (describing Louisiana’s refusal to inform a prisoner of the drugs that would be used to execute him); Denno, Lethal Injection Chaos Post -Baze , 102 Geo. L. J. 1331, 1376–1380 (2014) (describing increased secrecy around execution procedures). 3 See Connick v. Thompson , 563 U.S. 51 , 55–56, and n. 1 (2011) (intentionally suppressed exculpatory crime lab report discovered a month before a scheduled execution); Ex parte Braziel , No. WR–72,186–01 (Tex. Crim. App., Dec. 11, 2018), pp. 1–2 (Alcala, J., dissenting) (disclosure by the State of “new information about possible prosecutorial misconduct” the same day as an execution).

Russell Bucklew, who was convicted of murder and other crimes, argued that Missouri's lethal injection protocol was unconstitutional due to his rare medical condition. Bucklew only raised this claim days before his scheduled execution, resulting in a stay and a five-year delay. The courts ultimately ruled against him, and he sought to overturn their decisions. The Supreme Court, however, found no legal basis to do so and upheld the previous judgments.

Death Penalty & Criminal Sentencing

Glossip v. Gross

https://supreme.justia.com/cases/federal/us/576/14-7955/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–7955 _________________ RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 29, 2015] Justice Alito delivered the opinion of the Court. Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U. S. C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain. They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain. After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy. For two independent reasons, we also affirm. First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. See Baze v. Rees , 553 U. S. 35, 61 (2008) (plurality opinion). Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain. I A The death penalty was an accepted punishment at the time of the adoption of the Constitution and the Bill of Rights. In that era, death sentences were usually carried out by hanging. The Death Penalty in America: Current Controversies 4 (H. Bedau ed. 1997). Hanging remained the standard method of execution through much of the 19th century, but that began to change in the century’s later years. See Baze , supra, at 41–42. In the 1880’s, the Legislature of the State of New York appointed a commission to find “ ‘the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases.’ ” In re Kemmler , 136 U. S. 436, 444 (1890) . The commission recommended electrocution, and in 1888, the Legislature enacted a law providing for this method of execution. Id., at 444–445. In subsequent years, other States followed New York’s lead in the “ ‘belief that electrocution is less painful and more humane than hanging.’ ” Baze, 553 U. S., at 42 (quoting Malloy v. South Carolina , 237 U. S. 180, 185 (1915) ). In 1921, the Nevada Legislature adopted another new method of execution, lethal gas, after concluding that this was “the most humane manner known to modern science.” State v. Jon , 46 Nev. 418, 437, 211 P. 676, 682 (1923). The Nevada Supreme Court rejected the argument that the use of lethal gas was unconstitutional, id., at 435–437, 211 P., at 681–682, and other States followed Nevada’s lead, see, e.g. , Ariz. Const., Art. XXII, §22 (1933); 1937 Cal. Stats. ch. 172, §1; 1933 Colo. Sess. Laws ch. 61, §1; 1955 Md. Laws ch. 625, §1, p. 1017; 1937 Mo. Laws p. 222, §1. Nevertheless, hanging and the firing squad were retained in some States, see, e.g. , 1961 Del. Laws ch. 309, §2 (hanging); 1935 Kan. Sess. Laws ch. 155, §1 (hanging); Utah Code Crim. Proc. §105–37–16 (1933) (hanging or firing squad), and electrocution remained the predominant method of execution until the 9-year hiatus in executions that ended with our judgment in Gregg v. Georgia , 428 U. S. 153 (1976) . See Baze , supra, at 42. After Gregg reaffirmed that the death penalty does not violate the Constitution, some States once again sought a more humane way to carry out death sentences. They eventually adopted lethal injection, which today is “by far the most prevalent method of execution in the United States.” Baze , supra , at 42. Oklahoma adopted lethal injection in 1977, see 1977 Okla. Sess. Laws p. 89, and it eventually settled on a protocol that called for the use of three drugs: (1) sodium thiopental, “a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection,” (2) a paralytic agent, which “inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration,” and (3) potassium chloride, which “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Baze , supra , at 44; see also Brief for Respondents 9. By 2008, at least 30 of the 36 States that used lethal injection employed that particular three-drug protocol. 553 U. S., at 44. While methods of execution have changed over the years, “[t]his Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Id., at 48. In Wilkerson v. Utah , 99 U. S. 130 –135 (1879), the Court upheld a sentence of death by firing squad. In In re Kemmler , supra , at 447–449, the Court rejected a challenge to the use of the electric chair. And the Court did not retreat from that holding even when presented with a case in which a State’s initial attempt to execute a pris-oner by electrocution was unsuccessful. Louisiana ex rel. Francis v. Resweber , 329 U. S. 459 –464 (1947) (plurality opinion). Most recently, in Baze , supra , seven Justices agreed that the three-drug protocol just discussed does not violate the Eighth Amendment. Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” Id., at 47. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. Ibid. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether. B Baze cleared any legal obstacle to use of the most common three-drug protocol that had enabled States to carry out the death penalty in a quick and painless fashion. But a practical obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences. The sole American manufacturer of sodium thiopental, the first drug used in the standard three-drug protocol, was persuaded to cease production of the drug. After suspending domestic production in 2009, the company planned to resume production in Italy. Koppel, Execution Drug Halt Raises Ire of Doctors, Wall Street Journal, Jan. 25, 2011, p. A6. Activists then pressured both the company and the Italian Government to stop the sale of sodium thiopental for use in lethal injections in this country. Bonner, Letter from Europe: Drug Company in Cross Hairs of Death Penalty Opponents, N. Y. Times, Mar. 30, 2011; Koppel, Drug Halt Hinders Executions in the U. S., Wall Street Journal, Jan. 22, 2011, p. A1. That effort proved successful, and in January 2011, the company announced that it would exit the sodium thiopental market entirely. See Hospira, Press Release, Hospira Statement Regarding PentothalTM (sodium thiopental) Market Exit (Jan. 21, 2011). After other efforts to procure sodium thiopental proved unsuccessful, States sought an alternative, and they eventually replaced sodium thiopental with pentobarbital, another barbiturate. In December 2010, Oklahoma became the first State to execute an inmate using pentobarbital. See Reuters, Chicago Tribune, New Drug Mix Used in Oklahoma Execution, Dec. 17 2010, p. 41. That execution occurred without incident, and States gradually shifted to pentobarbital as their supplies of sodium thiopentalran out. It is reported that pentobarbital was used in all of the 43 executions carried out in 2012. The Death Penalty Institute, Execution List 2012, online at www.deathpenaltyinfo.org/execution-list-2012 (all Internet materials as visited June 26, 2015, and available in Clerk of Court’s case file). Petitioners concede that pentobarbital, like sodium thiopental, can “reliably induce and maintain a comalike state that renders a person insensate to pain” caused by administration of the second and third drugs in the protocol. Brief for Petitioners 2. And courts across the country have held that the use of pentobarbital in executions does not violate the Eighth Amendment. See, e.g., Jackson v. Danberg , 656 F. 3d 157 (CA3 2011); Beaty v. Brewer , 649 F. 3d 1071 (CA9 2011); DeYoung v. Owens , 646 F. 3d 1319 (CA11 2011); Pavatt v. Jones , 627 F. 3d 1336 (CA10 2010). Before long, however, pentobarbital also became unavailable. Anti-death-penalty advocates lobbied the Danish manufacturer of the drug to stop selling it for use in executions. See Bonner, supra . That manufacturer opposed the death penalty and took steps to block the shipment of pentobarbital for use in executions in the United States. Stein, New Obstacle to Death Penalty in U. S., Washington Post, July 3, 2011, p. A4. Oklahoma eventually became unable to acquire the drug through any means. The District Court below found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma. App. 67–68. C Unable to acquire either sodium thiopental or pentobarbital, some States have turned to midazolam, a sedative in the benzodiazepine family of drugs. In October 2013, Florida became the first State to substitute midazolam for pentobarbital as part of a three-drug lethal injection protocol. Fernandez, Executions Stall As States Seek Different Drugs, N. Y. Times, Nov. 9, 2013, p. A1. To date, Florida has conducted 11 executions using that protocol, which calls for midazolam followed by a paralytic agent and potassium chloride. See Brief for State of Florida as Amicus Curiae 2–3; Chavez v. Florida SP Warden , 742 F. 3d 1267, 1269 (CA11 2014). In 2014, Oklahoma also substituted midazolam for pentobarbital as part of its three-drug protocol. Oklahoma has already used this three-drug protocol twice: to execute Clayton Lockett in April 2014 and Charles Warner in January 2015. (Warner was one of the four inmates who moved for a preliminary injunction in this case.) The Lockett execution caused Oklahoma to implement new safety precautions as part of its lethal injection protocol. When Oklahoma executed Lockett, its protocol called for the administration of 100 milligrams of midazolam, as compared to the 500 milligrams that are currently required. On the morning of his execution, Lockett cut himself twice at “ ‘the bend of the elbow.’ ” App. 50. That evening, the execution team spent nearly an hour making at least one dozen attempts to establish intravenous (IV) access to Lockett’s cardiovascular system, including at his arms and elsewhere on his body. The team eventually believed that it had established intravenous access through Lockett’s right femoral vein, and it covered the injection access point with a sheet, in part to preserve Lockett’s dignity during the execution. After the team administered the midazolam and a physician determined that Lockett was unconscious, the team next administered the paralytic agent (vecuronium bromide) and most of the potassium chloride. Lockett began to move and speak, at which point the physician lifted the sheet and determined that the IV had “infiltrated,” which means that “the IV fluid, rather than entering Lockett’s blood stream, had leaked into the tissue surrounding the IV access point.” Warner v. Gross , 776 F. 3d 721, 725 (CA10 2015) (case below). The execution team stopped administering the remaining potassium chloride and terminated the execution about 33 minutes after the midazolam was first injected. About 10 minutes later, Lockett was pronounced dead. An investigation into the Lockett execution concluded that “the viability of the IV access point was the single greatest factor that contributed to the difficulty in administering the execution drugs.” App. 398. The investigation, which took five months to complete, recommended several changes to Oklahoma’s execution protocol, and Oklahoma adopted a new protocol with an effective date of September 30, 2014. That protocol allows the Oklahoma Department of Corrections to choose among four different drug combinations. The option that Oklahoma plans to use to execute petitioners calls for the administration of 500 milligrams of midazolam followed by a paralytic agent and potassium chloride.[ 1 ] The paralytic agent may be pancuronium bromide, vecuronium bromide, or rocuronium bromide, three drugs that, all agree, are functionally equivalent for purposes of this case. The protocol also includes procedural safeguards to help ensure that an inmate remains insensate to any pain caused by the administration of the paralytic agent and potassium chloride. Those safeguards include: (1) the insertion of both a primary and backup IV catheter, (2) procedures to confirm the viability of the IV site, (3) the option to postpone an execution if viable IV sites cannot be established within an hour, (4) a mandatory pause between administration of the first and second drugs, (5) numerous procedures for monitoring the offender’s consciousness, including the use of an electrocardiograph and direct observation, and (6) detailed provisions with respect to the training and preparation of the execution team. In January of this year, Oklahoma executed Warner using these revised procedures and the combination of midazolam, a paralytic agent, and potassium chloride. II A In June 2014, after Oklahoma switched from pentobarbital to midazolam and executed Lockett, 21 Oklahoma death row inmates filed an action under 42 U. S. C. §1983 challenging the State’s new lethal injection protocol. The complaint alleged that Oklahoma’s use of midazolam violates the Eighth Amendment’s prohibition of cruel and unusual punishment. In November 2014, four of those plaintiffs—Richard Glossip, Benjamin Cole, John Grant, and Warner—filed a motion for a preliminary injunction. All four men had been convicted of murder and sentenced to death by Oklahoma juries. Glossip hired Justin Sneed to kill his employer, Barry Van Treese. Sneed entered a room where Van Treese was sleeping and beat him to death with a baseball bat. See Glossip v. State , 2007 OK CR 12, 157 P. 3d 143, 147–149. Cole murdered his 9-month-old daughter after she would not stop crying. Cole bent her body backwards until he snapped her spine in half. After the child died, Cole played video games. See Cole v. State , 2007 OK CR 27, 164 P. 3d 1089, 1092–1093. Grant, while serving terms of imprisonment totaling 130 years, killed Gay Carter, a prison food service supervisor, by pulling her into a mop closet and stabbing her numerous times with a shank. See Grant v. State , 2002 OK CR 36, 58 P. 3d 783, 789. Warner anally raped and murdered an 11-month-old girl. The child’s injuries included two skull fractures, internal brain injuries, two fractures to her jaw, a lacerated liver, and a bruised spleen and lungs. See Warner v. State , 2006 OK CR 40, 144 P. 3d 838, 856–857. The Oklahoma Court of Criminal Appeals affirmed the murder conviction and death sentence of each offender. Each of the men then unsuccessfully sought both state postconviction and federal habeas corpus relief. Having exhausted the avenues for challenging their convictions and sentences, they moved for a preliminary injunction against Oklahoma’s lethal injection protocol. B In December 2014, after discovery, the District Court held a 3-day evidentiary hearing on the preliminary injunction motion. The District Court heard testimony from 17 witnesses and reviewed numerous exhibits. Dr. David Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a doctor of pharmacy, provided expert testimony about midazolam for petitioners, and Dr. Roswell Evans, adoctor of pharmacy, provided expert testimony forrespondents. After reviewing the evidence, the District Court issued an oral ruling denying the motion for a preliminary injunction. The District Court first rejected petitioners’ challenge under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U. S. 579 (1993) , to the testimony of Dr. Evans. It concluded that Dr. Evans, the Dean of Auburn University’s School of Pharmacy, was well qualified to testify about midazolam’s properties and that he offered reliable testimony. The District Court then held that petitioners failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment. The court provided two independent reasons for this conclusion. First, the court held that petitioners failed to identify a known and available method of execution that presented a substantially less severe risk of pain than the method that the State proposed to use. Second, the court found that petitioners failed to prove that Oklahoma’s protocol “presents a risk that is ‘sure or very likely to cause serious illness and needless suffering,’ amounting to ‘an objectively intolerable risk of harm.’ ” App. 96 (quoting Baze , 553 U. S., at 50). The court emphasized that the Oklahoma protocol featured numerous safeguards, including the establishment of two IV access sites, confirmation of the viability of those sites, and monitoring of the offender’s level of consciousness throughout the procedure. The District Court supported its decision with findings of fact about midazolam. It found that a 500-milligram dose 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 third drugs.” App. 77. Indeed, it found that a 500-milligram dose alone would likely cause death by respiratory arrest within 30 minutes or an hour. The Court of Appeals for the Tenth Circuit affirmed. 776 F. 3d 721. The Court of Appeals explained that our decision in Baze requires a plaintiff challenging a lethal injection protocol to demonstrate that the risk of severe pain presented by an execution protocol is substantial “ ‘when compared to the known and available alternatives.’ ” Id., at 732 (quoting Baze , supra , at 61). And it agreed with the District Court that petitioners had not identified any such alternative. The Court of Appeals added, however, that this holding was “not outcome-determinative in this case” because petitioners additionally failed to establish that the use of midazolam creates a demonstrated risk of severe pain. 776 F. 3d, at 732. The Court of Appeals found that the District Court did not abuse its discretion by relying on Dr. Evans’ testimony, and it concluded that the District Court’s factual findings about midazolam were not clearly erroneous. It also held that alleged errors in Dr. Evans’ testimony did not render his testimony unreliable or the District Court’s findings clearly erroneous. Oklahoma executed Warner on January 15, 2015, but we subsequently voted to grant review and then stayed the executions of Glossip, Cole, and Grant pending the resolution of this case. 574 U. S. ___ (2015). III “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc. , 555 U. S. 7, 20 (2008) . The parties agree that this case turns on whether petitioners are able to establish a likelihood of success on the merits. The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” The controlling opinion in Baze outlined what a prisoner must establish to succeed on an Eighth Amendment method-of-execution claim. Baze involved a challenge by Kentucky death row inmates to that State’s three-drug lethal injection protocol of sodium thiopental, pancuronium bromide, and potassium chloride. The inmates conceded that the protocol, if properly administered, would result in a humane and constitutional execution because sodium thiopental would render an inmate oblivious to any pain caused by the second and third drugs. 553 U. S., at 49. But they argued that there was an unacceptable risk that sodium thiopental would not be properly administered. Ibid. The inmates also maintained that a significant risk of harm could be eliminated if Kentucky adopted a one-drug protocol and additional monitoring by trained personnel. Id., at 51. The controlling opinion in Baze first concluded that prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is “ ‘ sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” Id., at 50 (quoting Helling v. McKinney , 509 U. S. 25 –35 (1993)). To prevail on such a claim, “there must be 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.’ ” 553 U. S., at 50 (quoting Farmer v. Brennan , 511 U. S. 825 , and n. 9 (1994)). The controlling opinion also stated that prisoners “cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.” 553 U. S., at 51. Instead, prisoners must identify an alternative that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id., at 52. The controlling opinion summarized the requirements of an Eighth Amendment method-of-execution claim 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. [And] [h]e must show that the risk is substantial when compared to the known and available alternatives.” Id., at 61. The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish both that Oklahoma’s lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives. The challenge in Baze failed both because the Kentucky inmates did not show that the risks they identified were substantial and imminent, id., at 56, and because they did not establish the existence of a known and available alternative method of execution that would entail a significantly less severe risk, id., at 57–60. Petitioners’ argumentshere fail for similar reasons. First, petitioners have not proved that any risk posed by midazolam is substantial when compared to known and available alternative methods of execution. Second, they have failed to establish that the District Court committed clear error when it found that the use of midazolam will not result in severe pain and suffering. We address each reason in turn. IV Our first ground for affirmance is based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution. In their amended complaint, petitioners proffered that the State could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. But the District Court found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma’s Department of Corrections. The Court of Appeals affirmed that finding, and it is not clearly erroneous. On the contrary, the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so. Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze , 553 U. S., at 61, which imposed a requirement that the Court now follows.[ 2 ] Petitioners contend that the requirement to identify an alternative method of execution contravenes our pre- Baze decision in Hill v. McDonough , 547 U. S. 573 (2006) , but they misread that decision. The portion of the opinion in Hill on which they rely concerned a question of civil procedure, not a substantive Eighth Amendment question. In Hill , the issue was whether a challenge to a method of execution must be brought by means of an application for a writ of habeas corpus or a civil action under §1983. Id., at 576. We held that a method-of-execution claim must be brought under §1983 because such a claim does not attack the validity of the prisoner’s conviction or death sentence. Id., at 579–580. The United States as amicus curiae argued that we should adopt a special pleading requirement to stop inmates from using §1983 actions to attack, not just a particular means of execution, but the death penalty itself. To achieve this end, the United States proposed that an inmate asserting a method-of-execution claim should be required to plead an acceptable alternative method of execution. Id. , at 582. We rejected that argument because “[s]pecific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal courts.” Ibid . Hill thus held that §1983 alone does not impose a heightened pleading requirement. Baze, on the other hand, addressed the substantive elements of an Eighth Amendment method-of-execution claim, and it made clear that the Eighth Amendment requires a prisoner to plead and prove a known and available alternative. Because petitioners failed to do this, the District Court properly held that they did not establish a likelihood of success on their Eighth Amendment claim. Readers can judge for themselves how much distance there is between the principal dissent’s argument against requiring prisoners to identify an alternative and the view, now announced by Justices Breyer and Ginsburg, that the death penalty is categorically unconstitutional. Post, p. ___ (Breyer, J., dissenting). The principal dissent goes out of its way to suggest that a State would violate the Eighth Amendment if it used one of the methods of execution employed before the advent of lethal injection. Post, at 30–31. And the principal dissent makes this suggestion even though the Court held in Wilkerson that this method (the firing squad) is constitutional and even though, in the words of the principal dissent, “there is some reason to think that it is relatively quick and painless.” Post , at 30. Tellingly silent about the methods of execution most commonly used before States switched to lethal injection (the electric chair and gas chamber), the principal dissent implies that it would be unconstitutional to use a method that “could be seen as a devolution to a more primitive era.” Ibid. If States cannot return to any of the “more primitive” methods used in the past and if no drug that meets with the principal dissent’s approval is available for use in carrying out a death sentence, the logical conclusion is clear. But we have time and again reaffirmed that capital punishment is not per se unconstitutional. See, e.g. , Baze , 553 U. S., at 47; id., at 87–88 (Scalia, J., concurring in judgment); Gregg , 428 U. S., at 187 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 226 (White, J., concurring in judgment); Resweber , 329 U. S., at 464; In re Kemmler , 136 U. S., at 447; Wilkerson , 99 U. S., at 134–135. We decline to effectively overrule these decisions. V We also affirm for a second reason: The 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. We emphasize four points at the outset of our analysis. First, we review the District Court’s factual findings under the deferential “clear error” standard. This standard does not entitle us to overturn a finding “simply because [we are] convinced that [we] would have decided the case differently.” Anderson v. Bessemer City , 470 U. S. 564, 573 (1985) . Second, petitioners bear the burden of persuasion on this issue. Baze , supra, at 41. Although petitionersexpend great effort attacking peripheral aspects of Dr. Evans’ testimony, they make little attempt to prove what is critical, i.e. , that the evidence they presented to the District Court establishes that the use of midazolam is sure or very likely to result in needless suffering. Third, numerous courts have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride. See, e.g., 776 F. 3d 721 (case below affirming the District Court); Chavez v. Florida SP Warden , 742 F. 3d 1267 (affirming the District Court); Banks v. State , 150 So. 3d 797 (Fla. 2014) (affirming the lower court); Howell v. State , 133 So. 3d 511 (Fla. 2014) (same); Muhammad v. State , 132 So. 3d 176 (Fla. 2013) (same). (It is noteworthy that one or both of the two key witnesses in this case—Dr. Lubarsky for petitioners and Dr. Evans for respondents—were witnesses in the Chavez , Howell , and Muhammad cases.) “Where an intermediate court reviews, and affirms, a trial court’s factual findings, this Court will not ‘lightly overturn’ the concurrent findings of the two lower courts.” Easley v. Cromartie , 532 U. S. 234, 242 (2001) . Our review is even more deferential where, as here, multiple trial courts have reached the same finding, and multiple appellate courts have affirmed those findings. Cf. Exxon Co., U. S. A. v. Sofec, Inc. , 517 U. S. 830, 841 (1996) (explaining that this Court “ ‘cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error’ ” (quoting Graver Tank & Mfg. Co. v. Linde Air Products Co. , 336 U. S. 271, 275 (1949) )). Fourth, challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts. Although we must invalidate a lethal injection protocol if it violates the Eighth Amendment, federal courts should not “embroil [themselves] in ongoing scientific controversies beyond their expertise.” Baze , supra , at 51. Accordingly, an inmate challenging a protocol bears the burden to show, based on evidence presented to the court, that there is a substantial risk of severe pain. A Petitioners attack the District Court’s findings of fact on two main grounds.[ 3 ] First, they argue that even if midazolam is powerful enough to induce unconsciousness, it is too weak to maintain unconsciousness and insensitivity to pain once the second and third drugs are administered. Second, while conceding that the 500-milligram dose of midazolam is much higher than the normal therapeutic dose, they contend that this fact is irrelevant because midazolam has a “ceiling effect”—that is, at a certain point, an increase in the dose administered will not have any greater effect on the inmate. Neither argumentsucceeds. The District Court found that midazolam is capable of placing a person “at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” App. 77. This conclusion was not clearly erroneous. Respondents’ expert, Dr. Evans, testified that the proper administration of a 500-milligram dose of midazolam would make it “a virtual certainty” that any individual would be “at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from application of the 2nd and 3rd drugs” used in the Oklahoma protocol. Id., at 302; see also id. , at 322. And petitioners’ experts acknowledged that they had no contrary scientific proof. See id., at 243–244 (Dr. Sasich stating that the ability of midazolam to render a person insensate to the second and third drugs “has not been subjected to scientific testing”); id ., at 176 (Dr. Lubarksy stating that “there is no scientific literature addressing the use of midazolam as a manner to administer lethal injections in humans”). In an effort to explain this dearth of evidence, Dr. Sasich testified that “[i]t’s not my responsibility or the [Food and Drug Administration’s] responsibility to prove that the drug doesn’t work or is not safe.” Tr. of Preliminary Injunction Hearing 357 (Tr.). Instead, he stated, “it’s the responsibility of the proponent to show that the drug is safe and effective.” Ibid. Dr. Sasich confused the standard imposed on a drug manufacturer seeking approval of a therapeutic drug with the standard that must be borne by a party challenging a State’s lethal injection protocol. When a method of execution is authorized under state law, a party contending that this method violates the Eighth Amendment bears the burden of showing that the method creates an unacceptable risk of pain. Here, petitioners’ own experts effectively conceded that they lacked evidence to prove their case beyond dispute. Petitioners attempt to avoid this deficiency by criticizing respondents’ expert. They argue that the District Court should not have credited Dr. Evans’ testimony because he admitted that his findings were based on “ ‘extrapolat[ions]’ ” from studies done about much lower therapeutic doses of midazolam. See Brief for Petitioners 34 (citing Tr. 667–668; emphasis deleted). But because a 500-milligram dose is never administered for a therapeutic purpose, extrapolation was reasonable. And the conclusions of petitioners’ experts were also based on extrapolations and assumptions. For example, Dr. Lubarsky relied on “extrapolation of the ceiling effect data.” App. 177. Based on the evidence that the parties presented to the District Court, we must affirm. Testimony from both sides supports the District Court’s conclusion that midazolam can render a person insensate to pain. Dr. Evans testified that although midazolam is not an analgesic, it can nonetheless “render the person unconscious and ‘insensate’ during the remainder of the procedure.” Id., at 294. In his discussion about the ceiling effect, Dr. Sasich agreed that as the dose of midazolam increases, it is “expected to produce sedation, amnesia, and finally lack of response to stimuli such as pain (unconsciousness).” Id., at 243. Petitioners argue that midazolam is not powerful enough to keep a person insensate to pain after the administration of the second and third drugs, but Dr. Evans presented creditable testimony to the contrary. See, e.g., Tr. 661 (testifying that a 500-milligram dose of midazolam will induce a coma).[ 4 ] Indeed, low doses of midazolam are sufficient to induce unconsciousness and are even some- times used as the sole relevant drug in certain medical procedures. Dr. Sasich conceded, for example, that midazolam might be used for medical procedures like colonoscopies and gastroscopies. App. 267–268; see also Brief for Respondents 6–8.[ 5 ] Petitioners emphasize that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery, but there are two reasons why this is not dispositive. First, as the District Court found, the 500-milligram dose at issue here “is many times higher than a normal therapeutic dose of midazolam.” App. 76. The effect of a small dose of midazolam has minimal probative value about the effect of a 500-milligram dose. Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution. We recognized this point in Baze , where we concluded that although the medical standard of care might require the use of a blood pressure cuff and an electrocardiogram during surgeries, this does not mean those procedures are required for an execution to pass Eighth Amendment scrutiny. 553 U. S., at 60. Oklahoma has also adopted important safeguards to ensure that midazolam is properly administered. The District Court emphasized three requirements in particular: The execution team must secure both a primary and backup IV access site, it must confirm the viability of the IV sites, and it must continuously monitor the offender’s level of consciousness. The District Court did not commit clear error in concluding that these safeguards help to minimize any risk that might occur in the event that midazolam does not operate as intended. Indeed, we concluded in Baze that many of the safeguards that Oklahoma employs—including the establishment of a primary and backup IV and the presence of personnel to monitor an inmate—help in significantly reducing the risk that an execution protocol will violate the Eighth Amendment. Id. , at 55–56. And many other safeguards that Oklahoma has adopted mirror those that the dissent in Baze complained were absent from Kentucky’s protocol in that case. For example, the dissent argued that because a consciousness check before injection of the second drug “can reduce a risk of dreadful pain,” Kentucky’s failure to include that step in its procedure was unconstitutional. Id. , at 119 (opinion of Ginsburg, J.). The dissent also complained that Kentucky did not monitor the effectiveness of the first drug or pause between injection of the first and second drugs. Id., at 120–121. Oklahoma has accommodated each of those concerns. B Petitioners assert that midazolam’s “ceiling effect” undermines the District Court’s finding about the effectiveness of the huge dose administered in the Oklahoma protocol. Petitioners argue that midazolam has a “ceiling” above which any increase in dosage produces no effect. As a result, they maintain, it is wrong to assume that a 500-milligram dose has a much greater effect than a therapeutic dose of about 5 milligrams. But the mere fact that midazolam has such a ceiling cannot be dispositive. Dr. Sasich testified that “all drugs essentially have a ceiling effect.” Tr. 343. The relevant question here is whether midazolam’s ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain caused by the second and third drugs. Petitioners provided little probative evidence on this point, and the speculative evidence that they did present to the District Court does not come close to establishing that its factual findings were clearly erroneous. Dr. Sasich stated in his expert report that the literature “indicates” that midazolam has a ceiling effect, but he conceded that he “was unable to determine the midazolam dose for a ceiling effect on unconsciousness because there is no literature in which such testing has been done.” App. 243–244. Dr. Lubarsky’s report was similar, id., at 171–172, and the testimony of petitioners’ experts at the hearing was no more compelling. Dr. Sasich frankly admitted that he did a “search to try and determine at what dose of midazolam you would get a ceiling effect,” but concluded: “I could not find one.” Tr. 344. The closest petitioners came was Dr. Lubarsky’s suggestion that the ceiling effect occurs “[p]robably after about . . . 40 to 50 milligrams,” but he added that he had not actually done the relevant calculations, and he admitted: “I can’t tell you right now” at what dose the ceiling effect occurs. App. 225. We cannot conclude that the District Court committed clear error in declining to find, based on such speculative evidence, that the ceiling effect negates midazolam’s ability to render an inmate insensate to pain caused by the second and third drugs in the protocol. The principal dissent discusses the ceiling effect at length, but it studiously avoids suggesting that petitioners presented probative evidence about the dose at which the ceiling effect occurs or about whether the effect occurs before a person becomes insensate to pain. The principal dissent avoids these critical issues by suggesting that such evidence is “irrelevant if there is no dose at which the drug can . . . render a person ‘insensate to pain.’ ” Post , at 17. But the District Court heard evidence that the drug can render a person insensate to pain, and not just from Dr. Evans: Dr. Sasich (one of petitioners’ own experts) testified that higher doses of midazolam are “expected to produce . . . lack of response to stimuli such as pain.” App. 243.[ 6 ] In their brief, petitioners attempt to deflect attention from their failure of proof regarding midazolam’s ceiling effect by criticizing Dr. Evans’ testimony. But it was petitioners’ burden to establish that midazolam’s ceiling occurred at a dosage below the massive 500-milligram dose employed in the Oklahoma protocol and at a point at which the drug failed to render the recipient insensate to pain. They did not meet that burden, and their criticisms do not undermine Dr. Evans’ central point, which the District Court credited, that a properly administered 500-milligram dose of midazolam will render the recipient unable to feel pain. One of petitioners’ criticisms of Dr. Evans’ testimony is little more than a quibble about the wording chosen by Dr. Evans at one point in his oral testimony. Petitioners’ expert, Dr. Lubarsky, stated in his report that midazolam “increases effective binding of [gamma-aminobutyric acid (GABA)] to its receptor to induce unconsciousness.”[ 7 ] App. 172. Dr. Evans’ report provided a similar explanation of the way in which midazolam works, see id., at 293–294, and Dr. Lubarsky did not dispute the accuracy of that explanation when he testified at the hearing. Petitioners contend, however, that Dr. Evans erred when he said at the hearing that “[m]idazolam attaches to GABA receptors, inhibiting GABA .” Id., at 312 (emphasis added). Petitioners contend that this statement was incorrect because “far from inhibiting GABA, midazolam facilitates its binding to GABA receptors.” Brief for Petitioners 38. In making this argument, petitioners are simply quarrelling with the words that Dr. Evans used during oral testimony in an effort to explain how midazolam works in terms understandable to a layman. Petitioners do not suggest that the discussion of midazolam in Dr. Evans’ expert report was inaccurate, and as for Dr. Evans’ passing use of the term “inhibiting,” Dr. Lubarksy’s own expert report states that GABA’s “ inhibition of brain activity is accentuated by midazolam.” App. 232 (emphasis added). Dr. Evans’ oral use of the word “inhibiting”—particularly in light of his written testimony—does not invalidate the District Court’s decision to rely on his testimony. Petitioners also point to an apparent conflict between Dr. Evans’ testimony and a declaration by Dr. Lubarsky (submitted after the District Court ruled) regarding the biological process that produces midazolam’s ceiling effect. But even if Dr. Lubarsky’s declaration is correct, it is largely beside the point. What matters for present purposes is the dosage at which the ceiling effect kicks in, not the biological process that produces the effect. And Dr. Lubarsky’s declaration does not render the District Court’s findings clearly erroneous with respect to that critical issue. C Petitioners’ remaining arguments about midazolam all lack merit. First, we are not persuaded by petitioners’ argument that Dr. Evans’ testimony should have been rejected because of some of the sources listed in his report. Petitioners criticize two of the “selected references” that Dr. Evans cited in his expert report: the Web site drugs.com and a material safety data sheet (MSDS) about midazolam. Petitioners’ argument is more of a Daubert challenge to Dr. Evans’ testimony than an argument that the District Court’s findings were clearly erroneous. The District Court concluded that Dr. Evans was “well-qualified to give the expert testimony that he gave” and that “his testimony was the product of reliable principles and methods reliably applied to the facts of this case.” App. 75–76. To the extent that the reliability of Dr.Evans’ testimony is even before us, the District Court’s con-clusion that his testimony was based on reliable sources is reviewed under the deferential “abuse-of-discretion” standard. General Elec. Co. v. Joiner , 522 U. S. 136 –143 (1997). Dr. Evans relied on multiple sources and his own expertise, and his testimony may not be disqualified simply because one source (drugs.com) warns that it “ ‘is not intended for medical advice’ ” and another (the MSDS) states that its information is provided “ ‘without any warranty, express or implied, regarding its correctness.’ ” Brief for Petitioners 36. Medical journals that both parties rely upon typically contain similar disclaimers. See, e.g. , Anesthesiology, Terms and Conditions of Use, online at http://anesthesiology.pubs.asahq.org/ss/terms.aspx (“None of the information on this Site shall be used to diagnose or treat any health problem or disease”). Dr. Lubarsky—petitioners’ own expert—relied on an MSDS to argue that midazolam has a ceiling effect. And petitioners do not identify any incorrect statements from drugs.com on which Dr. Evans relied. In fact, although Dr. Sasich submitted a declaration to the Court of Appeals criticizing Dr. Evans’ reference to drugs.com, that declaration does not identify a single fact from that site’s discussion of midazolam that was materially inaccurate. Second, petitioners argue that Dr. Evans’ expert report contained a mathematical error, but we find this argument insignificant. Dr. Evans stated in his expert report that the lowest dose of midazolam resulting in human deaths, according to an MSDS, is 0.071 mg/kg delivered intravenously. App. 294. Dr. Lubarsky agreed with this statement. Specifically, he testified that fatalities have occurred in doses ranging from 0.04 to 0.07 mg/kg, and he stated that Dr. Evans’ testimony to that effect was “a true statement” (though he added those fatalities occurred among the elderly). Id., at 217. We do not understand petitioners to dispute the testimony of Dr. Evans and their own expert that 0.071 mg/kg is a potentially fatal dose of midazolam. Instead, they make much of the fact that the MSDS attached to Dr. Evans’ report apparently contained a typographical error and reported the lowest toxic dose as 71 mg/kg. That Dr. Evans did not repeat that incorrect figure but instead reported the correct dose supports rather than undermines his testimony. In any event, the alleged error in the MSDS is irrelevant because the District Court expressly stated that it did not rely on the figure in the MSDS. See id., at 75. Third, petitioners argue that there is no consensus among the States regarding midazolam’s efficacy because only four States (Oklahoma, Arizona, Florida, and Ohio) have used midazolam as part of an execution. Petitioners rely on the plurality’s statement in Baze that “it is difficult to regard a practice as ‘objectively intolerable’ when it is in fact widely tolerated,” and the plurality’s emphasis on the fact that 36 States had adopted lethal injection and 30 States used the particular three-drug protocol at issue in that case. 553 U. S., at 53. But while the near-universal use of the particular protocol at issue in Baze supported our conclusion that this protocol did not violate the Eighth Amendment, we did not say that the converse was true, i.e., that other protocols or methods of execution are of doubtful constitutionality. That argument, if accepted, would hamper the adoption of new and potentially more humane methods of execution and would prevent States from adapting to changes in the availability of suitable drugs. Fourth, petitioners argue that difficulties with Oklahoma’s execution of Lockett and Arizona’s July 2014 execution of Joseph Wood establish that midazolam is sure or very likely to cause serious pain. We are not persuaded. Aside from the Lockett execution, 12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems. See Brief for Respondents 32; Brief for State of Florida as Amicus Curiae 1. Moreover, Lockett was administered only 100 milligrams of midazolam, and Oklahoma’s investigation into that execution concluded that the difficulties were due primarily to the execution team’s inability to obtain an IV access site. And the Wood execution did not involve the protocol at issue here. Wood did not receive a single dose of 500 milligrams of midazolam; instead, he received fifteen 50-milligram doses over the span of two hours.[ 8 ] Brief for Respondents 12, n. 9. And Arizona used a different two-drug protocol that paired midazolam with hydromorphone, a drug that is not at issue in this case. Ibid. When all of the circumstances are considered, the Lockett and Wood executions have little probative value for present purposes. Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” Post , at 28. That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments. VI For these reasons, the judgment of the Court of Appeals for the Tenth Circuit is affirmed. It is so ordered. Notes 1 The three other drug combinations that Oklahoma may admin-ister are: (1) a single dose of pentobarbital, (2) a single dose ofsodium thiopental, and (3) a dose of midazolam followed by a dose of hydromorphone. 2 Justice Sotomayor’s dissent (hereinafter principal dissent), post , at 24–25, inexplicably refuses to recognize that The Chief Justice’s opinion in Baze sets out the holding of the case. In Baze , the opinion of The Chief Justice was joined by two other Justices. Justices Scalia and Thomas took the broader position that a method of execution is consistent with the Eighth Amendment unless it is deliberately designed to inflict pain. 553 U. S., at 94 (Thomas, J. concurring in judgment). Thus, as explained in Marks v. United States , 430 U. S. 188, 193 (1977) , The Chief Justice’s opinion sets out the holding of the case. It is for this reason that petitioners base their argument on the rule set out in that opinion. See Brief for Petitioners 25, 28. 3 Drs. Lubarsky and Sasich, petitioners’ key witnesses, both testified that midazolam is inappropriate for a third reason, namely, that it creates a risk of “paradoxical reactions” such as agitation, hyperactiv-ity, and combativeness. App. 175 (expert report of Dr. Lubarsky); id. , at 242, 244 (expert report of Dr. Sasich). The District Court found, however, that the frequency with which a paradoxical reaction occurs “is speculative” and that the risk “occurs with the highest frequency in low therapeutic doses.” Id. , at 78. Indeed, Dr. Sasich conceded that the incidence or risk of paradoxical reactions with midazolam “is unknown” and that reports estimate the risk to vary only “from 1% to above 10%.” Id. , at 244. Moreover, the mere fact that a method of execution might result in some unintended side effects does not amount to an Eighth Amendment violation. “[T]he Constitution does not demand the avoidance of all risk of pain.” Baze , 553 U. S., at 47 (plurality opinion). 4 The principal dissent misunderstands the record when it bizarrely suggests that midazolam is about as dangerous as a peanut. Post , at 15. Dr. Evans and Dr. Lubarsky agreed that midazolam has caused fatalities in doses as low as 0.04 to 0.07 milligrams per kilogram. App. 217, 294. Even if death from such low doses is a “rare, unfortunate side effec[t],” post , at 15, the District Court found that a massive 500-milligram dose—many times higher than the lowest dose reported to have produced death—will likely cause death in under an hour. App. 76–77. 5 Petitioners’ experts also declined to testify that a 500-milligram dose of midazolam is always insufficient to place a person in a coma and render him insensate to pain. Dr. Lubarsky argued only that the 500-milligram dose cannot “reliably” produce a coma. Id. , 228. And when Dr. Sasich was asked whether he could say to a reasonable degree of certainty that a 500-milligram dose of midazolam would not render someone unconscious, he replied that he could not. Id., at 271–272. A product label for midazolam that Dr. Sasich attached to his expert report also acknowledged that an overdose of midazolam can cause a coma. See Expert Report of Larry D. Sasich, in No. 14–6244 (CA10), p. 34. 6 The principal dissent emphasizes Dr. Lubarsky’s supposedly contrary testimony, but the District Court was entitled to credit Dr. Evans (and Dr. Sasich) instead of Dr. Lubarsky on this point. And the District Court had strong reasons not to credit Dr. Lubarsky, who even argued that a protocol that includes sodium thiopental is “constructed to produce egregious harm and suffering.” App. 227. 7 GABA is “an amino acid that functions as an inhibitory neurotransmitter in the brain and spinal cord.” Mosby’s Medical Dictionary 8 The principal dissent emphasizes Dr. Lubarsky’s testimony that it is irrelevant that Wood was administered the drug over a 2-hour period. Post , at 20. But Dr. Evans disagreed and testified that if a 750-milligram dose “was spread out over a long period of time,” such as one hour ( i.e., half the time at issue in the Wood execution), the drug might not be as effective as if it were administered all at once. Tr. 667. The principal dissent states that this “pronouncement was entirely unsupported,” post, at 20, n. 6, but it was supported by Dr. Evans’ expertise and decades of experience. And it would be unusual for an expert testifying on the stand to punctuate each sentence with citation to a SUPREME COURT OF THE UNITED STATES _________________ No. 14–7955 _________________ RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 29, 2015] Justice Scalia, with whom Justice Thomas joins, concurring. I join the opinion of the Court, and write to respond to Justice Breyer’s plea for judicial abolition of the death penalty. Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11–month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. They rely on this provision because it is the only provision they can rely on. They were charged by a sovereign State with murder. They were afforded counsel and tried before a jury of their peers—tried twice, once to determine whether they were guilty and once to determine whether death was the appropriate sentence. They were duly convicted and sentenced. They were granted the right to appeal and to seek postconviction relief, first in state and then in federal court. And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give. The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now , at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates . The Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.” Nevertheless, today Justice Breyer takes on the role of the abolitionists in this long-running drama, arguing that the text of the Constitution and two centuries of history must yield to his “20 years of experience on this Court,” and inviting full briefing on the continued permissibility of capital punishment, post , at 2 (dissenting opinion). Historically, the Eighth Amendment was understood to bar only those punishments that added “ ‘terror, pain, or disgrace’ ” to an otherwise permissible capital sentence. Baze v. Rees , 553 U. S. 35, 96 (2008) (Thomas, J., concurring in judgment). Rather than bother with this troubling detail, Justice Breyer elects to contort the constitutional text. Redefining “cruel” to mean “unreliable,” “arbitrary,” or causing “excessive delays,” and “unusual” to include a “decline in use,” he proceeds to offer up a white paper devoid of any meaningful legal argument. Even accepting Justice Breyer’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook. He says that the death penalty is cruel because it is unreliable; but it is convictions , not punishments , that are unreliable. Moreover, the “pressure on police, prosecutors, and jurors to secure a conviction,” which he claims increases the risk of wrongful convictions in capital cases, flows from the nature of the crime, not the punishment that follows its commission. Post, at 6. Justice Breyer acknowledges as much: “[T]he crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community pressure.” Ibid. That same pressure would exist, and the same risk of wrongful convictions, if horrendous death-penalty cases were converted into equally horrendous life-without-parole cases. The reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment. (Which, again, Justice Breyer acknowledges: “[C]ourts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue,” post , at 5.) The capital convict will obtain endless legal assistance from the abolition lobby (and legal favoritism from abolitionist judges), while the lifer languishes unnoticed behind bars. Justice Breyer next says that the death penalty is cruel because it is arbitrary. To prove this point, he points to a study of 205 cases that “measured the ‘egregiousness’ of the murderer’s conduct” with “a system of metrics,” and then “compared the egregiousness of the conduct of the 9 defendants sentenced to death with the egregiousness of the conduct of defendants in the remaining 196 cases [who were not sentenced to death],” post, at 10–11. If only Aristotle, Aquinas, and Hume knew that moral philosophy could be so neatly distilled into a pocket-sized, vade mecum “system of metrics.” Of course it cannot: Egregiousness is a moral judgment susceptible of few hard-and-fast rules. More importantly, egregiousness of the crime is only one of several factors that render a punishment condign—culpability, rehabilitative potential, and the need for deterrence also are relevant. That is why this Court has required an individualized consideration of all mitigating circumstances, rather than formulaic application of some egregiousness test. It is because these questions are contextual and admit of no easy answers that we rely on juries to make judgments about the people and crimes before them. The fact that these judgments may vary across cases is an inevitable consequence of the jury trial, that cornerstone of Anglo-American judicial procedure. But when a punishment is authorized by law—if you kill you are subject to death—the fact that some defendants receive mercy from their jury no more renders the underlying punishment “cruel” than does the fact that some guilty individuals are never apprehended, are never tried, are acquitted, or arepardoned. Justice Breyer’s third reason that the death penalty is cruel is that it entails delay, thereby (1) subjecting inmates to long periods on death row and (2) undermining the penological justifications of the death penalty. The first point is nonsense. Life without parole is an even lengthier period than the wait on death row; and if the objection is that death row is a more confining environment, the solution should be modifying the environment rather than abolishing the death penalty. As for the argument that delay undermines the penological rationales for the death penalty: In insisting that “the major alternative to capital punishment—namely, life in prison without possibility of parole—also incapacitates,” post , at 24, Justice Breyer apparently forgets that one of the plaintiffs in this very case was already in prison when he committed the murder that landed him on death row. Justice Breyer further asserts that “whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole,” post , at 27. My goodness. If he thinks the death penalty not much more harsh (and hence not much more retributive), why is he so keen to get rid of it? With all due respect, whether the death penalty and life imprisonment constitute more-or-less equivalent retribution is a question far above the judiciary’s pay grade. Perhaps Justice Breyer is more forgiving—or more enlightened—than those who, like Kant, believe that death is the only just punishment for taking a life. I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough. And finally, Justice Breyer speculates that it does not “seem likely” that the death penalty has a “significant” deterrent effect. Post , at 25. It seems very likely to me, and there are statistical studies that say so. See, e.g., Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 166 (2004) (“[I]t is estimated that each state execution deters approximately fourteen murders per year on average”); Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) (“[E]ach execution results, on average, in eighteen fewer murders” per year); Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703, 713 (2005) (“All in all, the recent evidence of a deterrent effect from capital punishment seems impressive, especially in light of its ‘apparent power and unanimity’ ”). But we federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem “significant” reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate. Of course, this delay is a problem of the Court’s own making. As Justice Breyer concedes, for more than 160 years, capital sentences were carried out in an average of two years or less. Post , at 18. But by 2014, he tells us, it took an average of 18 years to carry out a death sentence. Id., at 19. What happened in the intervening years? Nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this Court under an interpretation of the Eighth Amendment that empowered it to divine “the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles , 356 U. S. 86, 101 (1958) (plurality opinion)—a task for which we are eminently ill suited. Indeed, for the past two decades, Justice Breyer has been the Drum Major in this parade. His invocation of the resultant delay as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan. Amplifying the surrealism of his argument, Justice Breyer uses the fact that many States have abandoned capital punishment—have abandoned it precisely because of the costs those suspect decisions have imposed—to conclude that it is now “unusual.” Post , at 33–39. (A caution to the reader: Do not use the creative arithmetic that Justice Breyer employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.) If we were to travel down the path that Justice Breyer sets out for us and once again consider the constitutionality of the death penalty, I would ask that counsel also brief whether our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop , should be overruled. That case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind. Justice Breyer’s dissent is the living refutation of Trop ’s assumption that this Court has the capacity to recognize “evolving standards of decency.” Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes. Time and again, this Court has upheld that decision. And time and again, a vocal minor-ity of this Court has insisted that things have “changed radically,” post , at 2, and has sought to replace the judgments of the People with their own standards of decency. Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment. SUPREME COURT OF THE UNITED STATES _________________ No. 14–7955 _________________ RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 29, 2015] Justice Thomas, with whom Justice Scalia joins, concurring. I agree with the Court that petitioners’ Eighth Amendment claim fails. That claim has no foundation in the Eighth Amendment, which prohibits only those “method[s] of execution” that are “deliberately designed to inflict pain.” Baze v. Rees , 553 U. S. 35, 94 (2008) (Thomas, J., concurring in judgment). Because petitioners make no allegation that Oklahoma adopted its lethal injection protocol “to add elements of terror, pain, or disgrace to the death penalty,” they have no valid claim. Id., at 107. That should have been the end of this case, but our precedents have predictably transformed the federal courts “into boards of inquiry charged with determining the ‘best practices’ for executions,” id., at 101 (internal quotation marks omitted), necessitating the painstaking factual inquiry the Court undertakes today. Although I continue to believe that the broader interpretation of the Eighth Amendment advanced in the plurality opinion in Baze is erroneous, I join the Court’s opinion in full because it correctly explains why petitioners’ claim fails even under that controlling opinion. I write separately to respond to Justice Breyer’s dissent questioning the constitutionality of the death penalty generally. No more need be said about the constitutional arguments on which Justice Breyer relies, as my colleagues and I have elsewhere refuted them.[ 1 ] But Justice Breyer’s assertion, post, at 10, that the death penalty in this country has fallen short of the aspiration that capital punishment be reserved for the “worst of the worst” —a notion itself based on an implicit proportionality principle that has long been discredited, see Harmelin v. Michigan , 501 U. S. 957, 966 (1991) (opinion of Scalia, J.)—merits further comment. His conclusion is based on an analysis that itself provides a powerful case against enforcing an imaginary constitutional rule against “arbitrariness.” The thrust of Justice Breyer’s argument is that empirical studies performed by death penalty abolitionists reveal that the assignment of death sentences does not necessarily correspond to the “egregiousness” of the crimes, but instead appears to be correlated to “arbitrary” factors, such as the locality in which the crime was committed. Relying on these studies to determine the constitutionality of the death penalty fails to respect the values implicit in the Constitution’s allocation of decisionmaking in this context. The Donohue study, on which Justice Breyer relies most heavily, measured the “egregiousness” (or “deathworthiness”) of murders by asking lawyers to identify the legal grounds for aggravation in each case, and by asking law students to evaluate written summaries of the murders and assign “egregiousness” scores based on a rubric designed to capture and standardize their moral judgments. Donohue, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973, Are There Unlawful Racial, Gender, and Geographic Disparities? 11 J. of Empirical Legal Studies 637, 644–645 (2014). This exercise in some ways approximates the function performed by jurors, but there is at least one critical difference: The law students make their moral judgments based on written summaries—they do not sit through hours, days, or weeks of evidence detailing the crime; they do not have an opportunity to assess the credibility of witnesses, to see the remorse of the defendant, to feel the impact of the crime on the victim’s family; they do not bear the burden of deciding the fate of another human being; and they are not drawn from the community whose sense of security and justice may have been torn asunder by an act of callous disregard for human life. They are like appellate judges and justices, reviewing only a paper record of each side’s case for life or death. There is a reason the choice between life and death, within legal limits, is left to the jurors and judges who sit through the trial, and not to legal elites (or law students).[ 2 ] That reason is memorialized not once, but twice, in our Constitution: Article III guarantees that “[t]he Trial of all Crimes, except in cases of Impeachment, shall be by Jury” and that “such Trial shall be held in the State where the said Crimes shall have been committed.” Art. III, §2, cl. 3. And the Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Those provisions ensure that capital defendants are given the option to be sentenced by a jury of their peers who, collectively, are better situated to make the moral judgment between life and death than are the products of contemporary American law schools. It should come as no surprise, then, that the primary explanation a regression analysis revealed for the gap between the egregiousness scores and the actual sentences was not the race or sex of the offender or victim, but the locality in which the crime was committed. Donohue, supra, at 640; see also post, at 12 (Breyer, J., dissenting). What is more surprising is that Justice Breyer considers this factor to be evidence of arbitrariness. See ibid. The constitutional provisions just quoted, which place such decisions in the hands of jurors and trial courts located where “the crime shall have been committed,” seem deliberately designed to introduce that factor. In any event, the results of these studies are inherently unreliable because they purport to control for egregiousness by quantifying moral depravity in a process that is itself arbitrary, not to mention dehumanizing. One such study’s explanation of how the author assigned “depravity points” to identify the “worst of the worst” murderers proves the point well. McCord, Lightning Still Strikes, 71 Brooklyn L. Rev. 797, 833–834 (2005). Each aggravating factor received a point value based on the “blameworth[iness]” of the action associated with it. Id., at 830. Killing a prison guard, for instance, earned a defendant three “depravity points” because it improved the case for complete incapacitation, while killing a police officer merited only two, because, “considered dispassionately,” such acts do “not seem be a sine qua non of the worst criminals.” Id., at 834–836. (Do not worry, the author reassures us, “many killers of police officers accrue depravity points in other ways that clearly put them among the worst criminals.” Id., at 836.) Killing a child under the age of 12 was worth two depravity points, because such an act “seems particularly heartless,” but killing someone over the age of 70 earned the murderer only one, for although “elderly victims tug at our hearts,” they do so “less” than children “because the promise of a long life is less.” Id., at 836, 838. Killing to make a political statement was worth three depravity points; killing out of racial hatred, only two. Id., at 835, 837. It goes on, but this small sample of the moral judgments on which this study rested shows just how unsuitable this evidence is to serve as a basis for a judicial decision declaring unconstitutional a punishment duly enacted in more than 30 States, and by the Federal Government. We owe victims more than this sort of pseudoscientific assessment of their lives. It is bad enough to tell a mother that her child’s murder is not “worthy” of society’s ultimate expression of moral condemnation. But to do so based on cardboard stereotypes or cold mathematical calculations is beyond my comprehension. In my decades on the Court, I have not seen a capital crime that could not be considered sufficiently “blameworthy” to merit a death sentence (even when genuine constitutional errors justified a vacatur of that sentence).[ 3 ] A small sample of the applications for a stay of execution that have come before the Court this Term alone proves my point. Mark Christeson was due to be executed in October 2014 for his role in the murder of Susan Brouk and her young children, Adrian and Kyle. After raping Ms. Brouk at gunpoint, he and his accomplice drove the family to a remote pond, where Christeson cut Ms. Brouk’s throat with a bone knife. State v. Christeson , 50 S. W. 3d 251, 257–258 (Mo. 2001). Although bleeding profusely, she stayed alive long enough to tell her children she loved them and to watch as Christeson murdered them—her son, by cutting his throat twice and drowning him; her daughter, by pressing down on her throat until she suffocated. Ibid. Christeson and his accomplice then threw Ms. Brouk—alive but barely breathing—into the pond to drown on top of her dead children. Ibid. This Court granted him a stay of execution. Christeson v. Roper , 574 U. S. ___ (2014). Lisa Ann Coleman was not so lucky. She was executed on September 17, 2014, for murdering her girlfriend’s son, 9-year-old Davontae Williams, by slowly starving him to death. Coleman v. State , 2009 WL 4696064, *1 (Tex. Crim. App., Dec. 9, 2009). When he died, Davontae had over 250 distinct injuries—including cigarette burns and ligature marks—on his 36-pound frame. Id., at *2. Infections from untreated wounds contributed to his other cause of death: pneumonia. Id., at *1–*2. And Johnny Shane Kormondy, who met his end on January 15, 2015, did so after he and his two accomplices invaded the home of a married couple, took turns raping the wife and forcing her to perform oral sex at gunpoint—at one point, doing both simultaneously—and then put a bullet in her husband’s head during the final rape. Kormondy v. Secretary, Fla. Dept. of Corrections , 688 F. 3d 1244, 1247–1248 (CA11 2012). Some of our most “egregious” cases have been those in which we have granted relief based on an unfounded Eighth Amendment claim. For example, we have granted relief in a number of egregious cases based on this Court’s decision in Atkins v. Virginia , 536 U. S. 304 (2002) , exempting certain “mentally retarded” offenders from the death penalty. Last Term, the Court granted relief to a man who kidnaped, beat, raped, and murdered a 21-year-old pregnant newlywed, Karol Hurst, also murdering her unborn child, and then, on the same day, murdered a sheriff’s deputy acting in the line of duty. Hall v. Florida , 572 U. S. ___, ___ (2014) (slip op., at 1). And in Atkins itself, the Court granted relief to a man who carjacked Eric Michael Nesbitt, forced him to withdraw money from a bank, drove him to a secluded area, and then shot him multiple times before leaving him to bleed to death. Atkins v. Commonwealth , 257 Va. 160, 166–167, 510 S. E. 2d 445, 449–450 (1999). The Court has also misinterpreted the Eighth Amendment to grant relief in egregious cases involving rape. In Kennedy v. Louisiana , 554 U. S. 407 (2008) , the Court granted relief to a man who had been sentenced to death for raping his 8-year-old stepdaughter. The rape was so violent that it “separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure,” and tore her “entire perineum . . . from the posterior fourchette to the anus.” Id., at 414 . The evidence indicated that the petitioner spent at least an hour and half attempting to destroy the evidence of his crime before seeking emergency assistance, even as his stepdaughter bled profusely from her injuries. Id., at 415. And in Coker v. Georgia , 433 U. S. 584 (1977) (plurality opinion), the Court granted relief to a petitioner who had escaped from prison, broken into the home of a young married couple and their newborn, forced the wife to bind her husband, gagged her husband with her underwear, raped her (even after being told that she was recovering from a recent childbirth), and then kidnaped her after threatening her husband, Coker v. State , 234 Ga. 555, 556–557, 216 S. E. 2d 782, 786–787 (1975). In each case, the Court crafted an Eighth Amendment right to be free from execution for the crime of rape—whether it be of an adult, Coker , 433 U. S., at 592, or a child, Kennedy , supra , at 413. The Court’s recent decision finding that the Eighth Amendment prohibits the execution of those who committed their crimes as juveniles is no different. See Roper v. Simmons , 543 U. S. 551 (2005) . Although the Court had rejected the claim less than two decades earlier, Stanford v. Kentucky , 492 U. S. 361 (1989) , it decided to revisit the issue for a petitioner who had slain his victim because “he wanted to murder someone” and believed he could “get away with it” because he was a few months shy of his 18th birthday. 543 U. S., at 556. His randomly chosen victim was Shirley Crook, whom he and his friends kidnaped in the middle of the night, bound with duct tape and electrical wire, and threw off a bridge to drown in the river below. Id., at 556–557. The State of Alabama’s brief in that case warned the Court that its decision would free from death row a number of killers who had been sentenced for crimes committed as juveniles. Brief for State of Alabama et al. as Amici Curiae in Roper v. Simmons , O. T. 2014, No. 03–633. Mark Duke, for example, murdered his father for refusing to loan him a truck, and his father’s girlfriend and her two young daughters because he wanted no witnesses to the crime. Id., at 4. He shot his father and his father’s girlfriend pointblank in the face as they pleaded for their lives. Id., at 5–6. He then tracked the girls down in their hiding places and slit their throats, leaving them alive for several minutes as they drowned in their own blood. Id., at 6–7. Whatever one’s views on the permissibility or wisdom of the death penalty, I doubt anyone would disagree that each of these crimes was egregious enough to merit the severest condemnation that society has to offer. The only constitutional problem with the fact that these criminals were spared that condemnation, while others were not, is that their amnesty came in the form of unfounded claims. Arbitrariness has nothing to do with it.[ 4 ] To the extent that we are ill at ease with these disparate outcomes, it seems to me that the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means. Notes 1 Generally: Baze v. Rees , 553 U. S. 35 –97 (2008) (Thomas, J., concurring in judgment) (explaining that the Cruel and Unusual Punishments Clause does not prohibit the death penalty, but only torturous punishments); Graham v. Collins , 506 U. S. 461, 488 (1993) (Thomas, J., concurring); Gardner v. Florida , 430 U. S. 349, 371 (1977) (Rehnquist, J., dissenting) (“The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed”). On reliability: Kansas v. Marsh , 548 U. S. 163, 181 (2006) (noting that the death penalty remains constitutional despite imperfections in the criminal justice system); McGautha v. California , 402 U. S. 183, 221 (1971) (“[T]he Federal Constitution, which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court”). On arbitrariness: Ring v. Arizona , 536 U. S. 584, 610 (2002) (Scalia, J., concurring) (explaining that what compelled States to specify “ ‘aggravating factors’ ” designed to limit the death penalty to the worst of the worst was this Court’s baseless jurisprudence concerning juror discretion); McCleskey v. Kemp , 481 U. S. 279 –312 (1987) (noting that various procedures, including the right to a jury trial, constitute a defendant’s protection against arbitrariness in the application of the death penalty). On excessive delays: Knight v. Florida , 528 U. S. 990 (1999) (Thomas, J., concurring in denial of certiorari) (“I am unaware of any support in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed”); see also Johnson v. Bredesen , 558 U. S. 1067, 1070 (2009) (Thomas, J., concurring in denial of certiorari). And on the decline in use of the death penalty: Atkins v. Virginia , 536 U. S. 304, 345 (2002) (Scalia, J., dissenting); Woodson v. North Carolina , 428 U. S. 280 –310 (1976) (Rehnquist, J., dissenting). 2 For some, a faith in the jury seems to be correlated to that institution’s likelihood of preventing imposition of the death penalty. See, e.g., Ring v. Arizona , 536 U. S. 584, 614 (2002) (Breyer, J., concurring in judgment) (arguing that “the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death”); Wainwright v. Witt , 469 U. S. 412, 440, n. 1 (1985) (Brennan, J., dissenting) (“However heinous Witt’s crime, the majority’s vivid portrait of its gruesome details has no bearing on the issue before us. It is not for this Court to decide whether Witt deserves to die. That decision must first be made by a jury of his peers”). 3 For his part, Justice Breyer explains that his experience on the Court has shown him “discrepancies for which [he] can find no rational explanations.” Post, at 16. Why, he asks, did one man receive death for a single-victim murder, while another received life for murdering a young mother and nearly killing her infant? Ibid. The outcomes in those two cases may not be morally compelled, but there was certainly a rational explanation for them: The first man, who had previously confessed to another murder, killed a disabled man who had offered him a place to stay for the night. State v. Badgett , 361 N. C. 234, 239–240, 644 S. E. 2d 206, 209–210 (2007). The killer stabbed his victim’s throat and prevented him from seeking medical attention until he bled to death. Ibid. The second man expressed remorse for his crimes and claimed to suffer from mental disorders. See Charbonneau, Andre Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26, 2004, online at http:/ / www.wral.com / news / local / story / 109648 (all Internet materials as visited June 25, 2015, and available in Clerk of Court’s case file); Charbonneau, Jury Finds Andre Edwards Guilty of First-Degree Murder, WRAL, Mar. 23, 2004, online at http:/ / www.wral.com / news / local / story / 109563 . The other “discrepancies” similarly have “rational” explanations, even if reasonable juries could have reached different results. 4 Justice Breyer appears to acknowledge that our decision holding mandatory death penalty schemes unconstitutional, Woodson v. North Carolina , 428 U. S. 280 (1976) (plurality opinion), may have introduced the problem of arbitrary application. Post , at 14. I agree that Woodson eliminated one reliable legislative response to concerns about arbitrariness. Graham v. Collins , 506 U. S. 461, 486 (1993) (Thomas, J., concurring). Because that decision was also questionable on constitutional grounds, id., at 486–488, I would be willing to revisit it in a future case. SUPREME COURT OF THE UNITED STATES _________________ No. 14–7955 _________________ RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 29, 2015] Justice Breyer, with whom Justice Ginsburg joins, dissenting. For the reasons stated in Justice Sotomayor’s opinion, I dissent from the Court’s holding. But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution. The relevant legal standard is the standard set forth in the Eighth Amendment. The Constitution there forbids the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8. The Court has recognized that a “claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia , 536 U. S. 304, 311 (2002) . Indeed, the Constitution prohibits various gruesome punishments that were common in Blackstone’s day. See 4 W. Blackstone, Commentaries on the Laws of England 369–370 (1769) (listing mutilation and dismembering, among other punishments). Nearly 40 years ago, this Court upheld the death pen-alty under statutes that, in the Court’s view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. See Gregg v. Georgia , 428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida , 428 U. S. 242, 247 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas , 428 U. S. 262, 268 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); but cf. Woodson v. North Carolina , 428 U. S. 280, 303 (1976) (plurality opinion) (striking down mandatory death penalty); Roberts v. Louisiana , 428 U. S. 325, 331 (1976) (plurality opinion) (similar). The circumstances and the evidence of the death penalty’s application have changed radically since then. Given those changes, I believe that it is now time to reopen the question. In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use. I shall describe each of these considerations, emphasizing changes that have occurred during the past four decades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].” U. S. Const., Amdt. 8. I “Cruel”—Lack of Reliability This Court has specified that the finality of death creates a “qualitative difference” between the death penalty and other punishments (including life in prison). Woodson , 428 U. S., at 305 (plurality opinion). That “qualitative difference” creates “a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Ibid. There is increasing evidence, however, that the death penalty as now applied lacks that requisite reliability. Cf. Kansas v. Marsh , 548 U. S. 163 –211 (2006) (Souter, J., dis-senting) (DNA exonerations constitute “a new body offact” when considering the constitutionality of capital punishment). For one thing, despite the difficulty of investigating the circumstances surrounding an execution for a crime that took place long ago, researchers have found convincing evidence that, in the past three decades, innocent people have been executed. See, e.g., Liebman, Fatal Injustice; Carlos DeLuna’s Execution Shows That a Faster, Cheaper Death Penalty is a Dangerous Idea, L. A. Times, June 1, 2012, p. A19 (describing results of a 4-year investigation, later published as The Wrong Carlos: Anatomy of a Wrongful Execution (2014), that led its authors to conclude that Carlos DeLuna, sentenced to death and executed in 1989, six years after his arrest in Texas for stabbinga single mother to death in a convenience store, was innocent); Grann, Trial By Fire: Did Texas Execute An Innocent Man? The New Yorker, Sept. 7, 2009, p. 42 (describing evidence that Cameron Todd Willingham was convicted, and ultimately executed in 2004, for the apparently motiveless murder of his three children as the result of invalid scientific analysis of the scene of the house fire that killed his children). See also, e.g., Press Release: Gov. Ritter Grants Posthumous Pardon in Case Dating Back to 1930s, Jan. 7, 2011, p. 1 (Colorado Governor granted full and unconditional posthumous pardon to Joe Arridy, a man with an IQ of 46 who was executed in 1936, because, according to the Governor, “an overwhelming body of evidence indicates the 23-year-old Arridy was innocent, including false and coerced confessions, the likelihood that Arridy was not in Pueblo at the time of the killing, and an admission of guilt by someone else”); R. Warden, Wilkie Collins’s The Dead Alive: The Novel, the Case, and Wrongful Convictions 157–158 (2005) (in 1987, Nebraska Governor Bob Kerrey pardoned William Jackson Marion, who had been executed a century earlier for the murder of John Cameron, a man who later turned up alive; the alleged victim, Cameron, had gone to Mexico to avoid a shotgun wedding). For another, the evidence that the death penalty has been wrongly imposed (whether or not it was carried out), is striking. As of 2002, this Court used the word “disturbing” to describe the number of instances in which individuals had been sentenced to death but later exonerated. Atthat time, there was evidence of approximately 60exonerations in capital cases. Atkins , 536 U. S., at320, n. 25; National Registry of Exonerations, online at http://www.law.umich.edu/special/exoneration/Pages/about.aspx (all Internet materials as visited June 25, 2015, and available in Clerk of Court’s case file). (I use “exoneration” to refer to relief from all legal consequences of a capital conviction through a decision by a prosecutor, a Governor or a court, after new evidence of the defendant’s innocence was discovered.) Since 2002, the number of exonerations in capital cases has risen to 115. Ibid. ; National Registry of Exonerations, Exonerations in the United States, 1989–2012, pp. 6–7 (2012) (Exonerations 2012 Report) (defining exoneration); accord, Death Penalty Information Center (DPIC), Innocence: List of Those Freed from Death Row, online at http://www.deathpenaltyinfo.org/innocence-and-death-penalty (DPIC Innocence List) (calculating, under a slightly different definition of exoneration, the number of exonerations since 1973 as 154). Last year, in 2014, six death row inmates were exonerated based on actual innocence. All had been imprisoned for more than 30 years (and one for almost 40 years) at the time of their exonerations. National Registry of Exonerations, Exonerations in 2014, p. 2 (2015). The stories of three of the men exonerated within the last year are illustrative. DNA evidence showed that Henry Lee McCollum did not commit the rape and murder for which he had been sentenced to death. Katz & Eckholm, DNA Evidence Clears Two Men in 1983 Murder, N. Y. Times, Sept. 3, 2014, p. A1. Last Term, this Court ordered that Anthony Ray Hinton, who had been convicted of murder, receive further hearings in state court; he was exonerated earlier this year because the forensic evidence used against him was flawed. Hinton v. Alabama , 571 U. S. ___ (2014) ( per curiam ); Blinder, Alabama Man on Death Row for Three Decades Is Freed as State’s Case Erodes, N. Y. Times, Apr. 4, 2014, p. A11. And when Glenn Ford, also convicted of murder, was exonerated, the prosecutor admitted that even “[a]t the time this case was tried there was evidence that would have cleared Glenn Ford.” Stroud, Lead Prosecutor Apologizes for Role in Sending Man to Death Row, Shreveport Times, Mar. 27, 2015. All three of these men spent 30 years on death row before being exonerated. I return to these examples infra . Furthermore, exonerations occur far more frequently where capital convictions, rather than ordinary criminal convictions, are at issue. Researchers have calculated that courts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue. They are nine times more likely to exonerate where a capital murder, rather than a noncapital murder, is at issue. Exonerations 2012 Report 15–16, and nn. 24–26. Why is that so? To some degree, it must be because the law that governs capital cases is more complex. To some degree, it must reflect the fact that courts scrutinize capital cases more closely. But, to some degree, it likely also reflects a greater likelihood of an initial wrongful conviction . How could that be so? In the view of researchers who have conducted these studies, it could be so because the crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person. See Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531–533 (2005); Gross & O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical L. Studies 927, 956–957 (2008) (noting that, in comparing those who were exonerated from death row to other capital defendants who were not so exonerated, the initial police investigations tended to be shorter for those exonerated); see also B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011) (discussing other common causes of wrongful convictions generally including false confessions, mistaken eyewitness testimony, untruthful jailhouse informants, and ineffective defense counsel). In the case of Cameron Todd Willingham, for example, who (as noted earlier) was executed despite likely innocence, the State Bar of Texas recently filed formal misconduct charges against the lead prosecutor for his actions—actions that may have contributed to Willingham’s conviction. Possley, Prosecutor Accused of Misconduct in Death Penalty Case, Washington Post, Mar. 19, 2015, p. A3. And in Glenn Ford’s case, the prosecutor admitted that he was partly responsible for Ford’s wrongful conviction, issuing a public apology to Ford and explaining that, at the time of Ford’s conviction, he was “not as interested in justice as [he] was in winning.” Stroud, supra . Other factors may also play a role. One is the practice of death-qualification; no one can serve on a capital jury who is not willing to impose the death penalty. See Rozelle, The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, 38 Ariz. S. L. J. 769, 772–793, 807 (2006) (summarizing research and concluding that “[f]or over fifty years, empirical investigation has demonstrated that death qualification skews juries toward guilt and death”); Note, Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification, 10 Roger Williams Univ. L. Rev. 211, 214–223 (2004) (similar). Another is the more general problem of flawed forensic testimony. See Garrett, supra, at 7. The Federal Bureau of Investigation (FBI), for example, recently found that flawed microscopic hair analysis was used in 33 of 35 capital cases under review; 9 of the 33 had already been executed. FBI, National Press Releases, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review, Apr. 20, 2015. See also Hsu, FBI Admits Errors at Trials: False Matches on Crime-Scene Hair, Washington Post, Apr. 19, 2015, p. A1 (in the District of Columbia, which does not have the death penalty, five of seven defendants in cases with flawed hair analysis testimony were eventually exonerated). In light of these and other factors, researchers estimate that about 4% of those sentenced to death are actually innocent. See Gross, O’Brien, Hu, & Kennedy, Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proceeding of the National Academy of Sciences 7230 (2014) (full-scale study of all death sentences from 1973 through 2004 estimating that 4.1% of those sentenced to death are actually innocent); Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007) (examination of DNA exonerations in death penalty cases for murder-rapes between 1982 and 1989 suggesting an analogous rate of between 3.3% and 5%). Finally, if we expand our definition of “exoneration” (which we limited to errors suggesting the defendant was actually innocent) and thereby also categorize as “erroneous” instances in which courts failed to follow legally required procedures, the numbers soar. Between 1973 and 1995, courts identified prejudicial errors in 68% of the capital cases before them. Gelman, Liebman, West, & Kiss, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical L. Studies 209, 217 (2004). State courts on direct and postconviction review overturned 47% of the sentences they reviewed. Id., at 232. Federal courts, reviewing capital cases in habeas corpus proceedings, found error in 40% of those cases. Ibid. This research and these figures are likely controversial. Full briefing would allow us to scrutinize them with more care. But, at a minimum, they suggest a serious problem of reliability. They suggest that there are too many instances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime. See Earley, A Pink Cadillac, An IQ of 63, and A Fourteen-Year-Old from South Carolina: Why I Can No Longer Support the Death Penalty, 49 U. Rich. L. Rev. 811, 813 (2015) (“I have come to the conclusion that the death penalty is based on a false utopian premise. That false premise is that we have had, do have, will have 100% accuracy in death penalty convictions and executions”); Earley, I Oversaw 36 Executions. Even Death Penalty Supporters Can Push for Change, Guardian, May 12, 2014 (Earley presided over 36 executions as Virginia Attorney General from 1998–2001); but see ante , at 2–3 (Scalia, J., concurring) (apparently finding no special constitutional problem arising from the fact that the execution of an innocent person is irreversible). Unlike 40 years ago, we now have plausible evidence of unreliability that (perhaps due to DNA evidence) is stronger than the evidence we had before. In sum, there is significantly more research-based evidence today indicating that courts sentence to death individuals who may well be actually innocent or whose convictions (in the law’s view) do not warrant the death penalty’s application. II “Cruel”—Arbitrariness The arbitrary imposition of punishment is the antithesis of the rule of law. For that reason, Justice Potter Stewart (who supplied critical votes for the holdings in Furman v. Georgia , 408 U. S. 238 (1972) ( per curiam ), and Gregg ) found the death penalty unconstitutional as administered in 1972: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [death-eligible crimes], many just as reprehensible as these, the[se] petitioners are among a capriciously selected random handful upon which the sentence of death has in fact been imposed.” Furman , 408 U. S., at 309–310 (concurring opinion). See also id. , at 310 (“[T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed”); id. , at 313 (White, J., concurring) (“[T]he death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not”). When the death penalty was reinstated in 1976, this Court acknowledged that the death penalty is (and would be) unconstitutional if “inflicted in an arbitrary and capricious manner.” Gregg , 428 U. S., at 188 (joint opinion of Stewart, Powell, and Stevens, JJ.); see also id., at 189 (“[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”); Godfrey v. Georgia , 446 U. S. 420, 428 (1980) (plurality opinion) (similar). The Court has consequently sought to make the application of the death penalty less arbitrary by restricting its use to those whom Justice Souter called “ ‘the worst of the worst.’ ” Kansas v. Marsh , 548 U. S., at 206 (dissenting opinion); see also Roper v. Simmons , 543 U. S. 551, 568 (2005) (“Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution” (internal quotation marks omitted)); Kennedy v. Louisiana , 554 U. S. 407, 420 (2008) (citing Roper , supra, at 568). Despite the Gregg Court’s hope for fair administration of the death penalty, 40 years of further experience make it increasingly clear that the death penalty is imposed arbitrarily, i.e. , without the “reasonable consistency” legally necessary to reconcile its use with the Constitution’s commands. Eddings v. Oklahoma , 455 U. S. 104, 112 (1982) . Thorough studies of death penalty sentences support this conclusion. A recent study, for example, examined all death penalty sentences imposed between 1973 and 2007 in Connecticut, a State that abolished the death penalty in 2012. Donohue, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities? 11 J. Empirical Legal Studies 637 (2014). The study reviewed treatment of all homicide defendants. It found 205 instances in which Connecticut law made the defendant eligible for a death sentence. Id., at 641–643. Courts imposed a death sentence in 12 of these 205 cases, of which 9 were sustained on appeal. Id., at 641. The study then measured the “egregiousness” of the murderer’s conduct in those 9 cases, developing a system of metrics designed to do so. Id., at 643–645. It then compared the egregiousness of the conduct of the 9 defendants sentenced to death with the egregiousness of the conduct of defendants in the remaining 196 cases (those in which the defendant, though found guilty of a death-eligible offense, was ultimately not sentenced to death). Application of the studies’ metrics made clear that only 1 of those 9 defendants was indeed the “worst of the worst” (or was, at least, within the 15% considered most “egregious”). The remaining eight were not. Their behavior was no worse than the behavior of at least 33 and as many as 170 other defendants (out of a total pool of 205) who had not been sentenced to death. Id. , at 678–679. Such studies indicate that the factors that most clearly ought to affect application of the death penalty—namely, comparative egregiousness of the crime—often do not. Other studies show that circumstances that ought not to affect application of the death penalty, such as race, gender, or geography, often do . Numerous studies, for example, have concluded that individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty. See GAO, Report to the Senate and House Committees on the Judiciary: Death Penalty Sentencing 5 (GAO/GGD–90–57, 1990) (82% of the 28 studies conducted between 1972 and 1990 found that race of victim influences capital murder charge or death sentence, a “finding . . . remarkably consistent across data sets, states, data collection methods, and analytic techniques”); Shatz & Dalton, Challenging the Death Penalty with Statistics: Furman , McCleskey , and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1245–1251 (2013) (same conclusion drawn from 20 plus studies conducted between 1990 and 2013). Fewer, but still many, studies have found that the gender of the defendant or the gender of the victim makes a not-otherwise-warranted difference. Id., at 1251–1253 (citing many studies). Geography also plays an important role in determining who is sentenced to death. See id., at 1253–1256. And that is not simply because some States permit the death penalty while others do not. Rather within a death pen-alty State, the imposition of the death penalty heavily de-pends on the county in which a defendant is tried. Smith, The Geography of the Death Penalty and its Ramifications, 92 B. U. L. Rev. 227, 231–232 (2012) (hereinafter Smith); see also Donohue, supra, at 673 (“[T]he single most important influence from 1973–2007 explaining whether a death-eligible defendant [in Connecticut] would be sentenced to death was whether the crime occurred in Waterbury [County]”). Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide. Smith 233. And in 2012, just 59 counties (fewer than 2% of counties in the country) accounted for all death sentences imposed nationwide. DPIC, The 2% Death Penalty: How A Minority of Counties Produce Most Death Cases At Enormous Costs to All 9 (Oct. 2013). What accounts for this county-by-county disparity? Some studies indicate that the disparity reflects the decisionmaking authority, the legal discretion, and ultimately the power of the local prosecutor. See, e.g., Goelzhauser, Prosecutorial Discretion Under Resource Constraints: Budget Allocations and Local Death-Charging Decisions, 96 Judicature 161, 162–163 (2013); Barnes, Sloss, & Thaman, Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases, 51 Ariz. L. Rev. 305 (2009) (analyzing Missouri); Donohue, An Empirical Evaluation of the Connecticut Death Pen-alty System, at 681 (Connecticut); Marceau, Kamin, & Foglia, Death Eligibility in Colorado: Many Are Called, Few Are Chosen, 84 U. Colo. L. Rev. 1069 (2013) (Colo-rado); Shatz & Dalton, supra, at 1260–1261 (Alameda County). Others suggest that the availability of resources for defense counsel (or the lack thereof) helps explain geographical differences. See, e.g., Smith 258–265 (counties with higher death-sentencing rates tend to have weaker public defense programs); Liebman & Clarke, Minority Practice, Majority’s Burden: The Death Penalty Today, 9 Ohio S. J. Crim. L. 255, 274 (2011) (hereinafter Liebman & Clarke) (similar); see generally Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835 (1994). Still others indicate that the racial composition of and distribution within a county plays an important role. See, e.g. , Levinson, Smith, & Young, Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States, 89 N. Y. U. L. Rev. 513, 533–536 (2014) (summarizing research on this point); see also Shatz & Dalton, supra, at 1275 (describing research finding that death-sentencing rates were lowest in counties with the highest nonwhite population); cf. Cohen & Smith, The Racial Geography of the Federal Death Penalty, 85 Wash. L. Rev. 425 (2010) (arguing that the federal death penalty is sought disproportionately where the federal district, from which the jury will be drawn, has a dramatic racial difference from the county in which the federal crime occurred). Finally, some studies suggest that political pressures, including pressures on judges who must stand for election, can make a difference. See Woodward v. Alabama , 571 U. S. ___, ___ (2013) (Sotomayor, J., dissenting from denial of certiorari) (slip op., at 7) (noting that empirical evidence suggests that, when Alabama judges reverse jury recommendations, these “judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures”); Harris v. Alabama , 513 U. S. 504, 519 (1995) (Stevens, J., dissenting) (similar); Gelman, 1 J. Empirical L. Studies, at 247 (elected state judges are less likely to reverse flawed verdicts in capital cases in small towns than in larger communities). Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources— do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors—such as “egregiousness”—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposedarbitrarily. Justice Thomas catalogues the tragic details of various capital cases, ante , at 6–10 (concurring opinion), but this misses my point. Every murder is tragic, but unless we return to the mandatory death penalty struck down in Woodson , 428 U. S., at 304–305, the constitutionality of capital punishment rests on its limited application to the worst of the worst, supra, at 9–10. And this extensive body of evidence suggests that it is not so limited. Four decades ago, the Court believed it possible to interpret the Eighth Amendment in ways that would significantly limit the arbitrary application of the death sentence. See Gregg , 428 U. S., at 195 (joint opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met”). But that no longer seems likely. The Constitution does not prohibit the use of prosecutorial discretion. Id., at 199, and n. 50 (joint opinion of Stewart, Powell, and Stevens, JJ.); McCleskey v. Kemp , 481 U. S. 279 –308, and n. 28, 311–312 (1987). It has not proved possible to increase capital defense funding significantly. Smith, The Supreme Court and the Politics of Death, 94 Va. L. Rev. 283, 355 (2008) (“Capital defenders are notoriously underfunded, particularly in states . . . that lead the nation in executions”); American Bar Assn. (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 9.1, Commentary (rev. ed. Feb. 2003), in 31 Hofstra L. Rev. 913, 985 (2003) (“[C]ompensation of attorneys for death penalty representation remains notoriously inadequate”). And courts cannot easily inquire into judicial motivation. See, e.g., Harris , supra . Moreover, racial and gender biases may, unfortunately, reflect deeply rooted community biases (conscious or unconscious), which, despite their legal irrelevance, may affect a jury’s evaluation of mitigating evidence, see Callins v. Collins , 510 U. S. 1141, 1153 (1994) (Blackmun, J., dissenting from denial of certiorari) (“Perhaps it should not be surprising that the biases and prejudices that infect society generally would influence the determination of who is sentenced to death”). Nevertheless, it remains the jury’s task to make the individualized assessment of whether the defendant’s mitigation evidence entitles him to mercy. See, e.g., Penry v. Lynaugh , 492 U. S. 302, 319 (1989) ; Lockett v. Ohio , 438 U. S. 586 –605 (1978) (opinion of Burger, C. J.); Woodson , 428 U. S., at 304–305 (plurality opinion). Finally, since this Court held that comparative proportionality review is not constitutionally required, Pulley v. Harris , 465 U. S. 37 (1984) , it seems unlikely that appeals can prevent the arbitrariness I have described. See Kaufman-Osborn, Capital Punishment, Proportionality Review, and Claims of Fairness (with Lessons from Washington State), 79 Wash. L. Rev. 775, 791–792 (2004) (after Pulley , many States repealed their statutes requiring comparative proportionality review, and most state high courts “reduced proportionality review to a perfunctory exercise” (internal quotation marks omitted)). The studies bear out my own view, reached after considering thousands of death penalty cases and last-minute petitions over the course of more than 20 years. I see discrepancies for which I can find no rational explanations. Cf. Godfrey , 446 U. S., at 433 (plurality opinion) (“There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not”). Why does one defendant who committed a single-victim murder receive the death pen-alty (due to aggravators of a prior felony conviction and an after-the-fact robbery), while another defendant does not, despite having kidnapped, raped, and murdered a young mother while leaving her infant baby to die at the scene of the crime. Compare State v. Badgett , 361 N. C. 234, 644 S. E. 2d 206 (2007), and Pet. for Cert. in Badgett v. North Carolina , O. T. 2006, No. 07–6156, with Charbonneau, Andre Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26, 2004, online at http://www.wral.com/news/local/story/109648. Why does one defendant who committed a single-victim murder receive the death pen-alty (due to aggravators of a prior felony conviction and acting recklessly with a gun), while another defendant does not, despite having committed a “triple murder” by killing a young man and his pregnant wife? Compare Commonwealth v. Boxley , 596 Pa. 620, 948 A. 2d 742 (2008), and Pet. for Cert., O. T. 2008, No. 08–6172, with Shea, Judge Gives Consecutive Life Sentences for Triple Murder, Philadelphia Inquirer, June 29, 2004, p. B5. For that matter, why does one defendant who participated in a single-victim murder-for-hire scheme (plus an after-the-fact robbery) receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept? See Donohue, Capital Punishment in Connecticut, 1973–2007: A Comprehensive Evaluation from 4686 Murders to One Execution, pp. 128–134 (2013), online at http://works.bepress.com/john_donohue/87. In each instance, the sentences compared were imposed in the same State at about the same time. The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stewart, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law? III “Cruel”—Excessive Delays The problems of reliability and unfairness almost inevitably lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row, alive but under sentence of death. That is to say, delay is in part a problem that the Constitution’s own demands create. Given the special need for reliability and fairness in death penalty cases, the Eighth Amendment does, and must, apply to the death penalty “with special force.” Roper , 543 U. S., at 568. Those who face “that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Hall v. Florida , 572 U. S. ___, ___ (2014) (slip op., at 22). At the same time, the Constitution insists that “every safeguard” be “observed” when “a defendant’s life is at stake.” Gregg , 428 U. S., at 187 (joint opinion of Stewart, Powell, and Stevens, JJ.); Furman , 408 U. S., at 306 (Stewart, J., concurring) (death “differs from all other forms of criminal punishment, not in degree but in kind”); Woodson , supra , at 305 (plurality opinion) (“Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two”). These procedural necessities take time to implement. And, unless we abandon the procedural requirements that assure fairness and reliability, we are forced to confront the problem of increasingly lengthy delays in capital cases. Ultimately, though these legal causes may help to explain, they do not mitigate the harms caused by delay itself. A Consider first the statistics. In 2014, 35 individualswere executed. Those executions occurred, on average,nearly 18 years after a court initially pronounced itssentence of death. DPIC, Execution List 2014, onlineat http: / / www.deathpenaltyinfo.org / execution - list-2014 (showing an average delay of 17 years, 7 months). In some death penalty States, the average delay is longer. Inan oral argument last year, for example, the State admitted that the last 10 prisoners executed in Florida had spent an average of nearly 25 years on death row before execution. Tr. of Oral Arg. in Hall v. Florida, O. T. 2013, No. 12–10882, p. 46. The length of the average delay has increased dramatically over the years. In 1960, the average delay between sentencing and execution was two years. See Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment? 29 Seton Hall L. Rev. 147, 181 (1998). Ten years ago (in 2004) the average delay was about 11 years. See Dept. of Justice, Bureau of Justice Statistics (BJS), T. Snell, Capital Punishment, 2013—Statistical Tables 14 (Table 10) (rev. Dec. 2014) (hereinafter BJS 2013 Stats). By last year the average had risen to about 18 years. DPIC, Execution List 2014, supra . Nearly half of the 3,000 inmates now on death row have been there for more than 15 years. And, at present execution rates, it would take more than 75 years to carry out those 3,000 death sentences; thus, the average person on death row would spend an additional 37.5 years there before being executed. BJS 2013 Stats, at 14, 18 (Tables 11 and 15). I cannot find any reasons to believe the trend will soon be reversed. B These lengthy delays create two special constitutional difficulties. See Johnson v. Bredesen , 558 U. S. 1067, 1069 (2009) (Stevens, J., statement respecting denial of certiorari). First, a lengthy delay in and of itself is especially cruel because it “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” Ibid .; Gomez v. Fierro , 519 U. S. 918 (1996) (Stevens, J., dissenting) (excessive delays from sentencing to execution can themselves “constitute cruel and unusual punishment prohibited by the Eighth Amendment”); see also Lackey v. Texas , 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); Knight v. Florida , 528 U. S. 990, 993 (1999) (Breyer, J., dissenting from denial of certiorari) . Second, lengthy delay undermines the death penalty’s penological rationale. Johnson , supra, at 1069; Thompson v. McNeil , 556 U. S. 1114 ,1115 (2009) (statement of Stevens, J., respecting denial of certiorari). 1 Turning to the first constitutional difficulty, nearly all death penalty States keep death row inmates in isolation for 22 or more hours per day. American Civil Liberties Union (ACLU), A Death Before Dying: Solitary Confinement on Death Row 5 (July 2013) (ACLU Report). This occurs even though the ABA has suggested that death row inmates be housed in conditions similar to the general population, and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement longer than 15 days. See id. , at 2, 4; ABA Standards for Criminal Justice: Treatment of Prisoners 6 (3d ed. 2011). And it is well documented that such prolonged solitary confinement produces numerous deleterious harms. See, e.g., Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinquency 124, 130 (2003) (cataloguing studies finding that solitary confinement can cause prisoners to experience “anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations,” among many other symptoms); Grassian, Psychiatric Effects of Solitary Confinement, 22 WashU. J. L. & Policy 325, 331 (2006) (“[E]ven a few days of solitary confinement will predictably shift the [brain’s] electroencephalogram (EEG) pattern toward an abnormal pattern characteristic of stupor and delirium”); accord, In re Medley , 134 U. S. 160 –168 (1890); see also Davis v. Ayala , ante, at 1–4 (Kennedy, J., concurring). The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out. In 1890, this Court recognized that, “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.” Medley , supra, at 172. The Court was there describing a delay of a mere four weeks. In the past century and a quarter, little has changed in this respect—except for duration. Today we must describe delays measured, not in weeks, but in decades. Supra, at 18–19. Moreover, we must consider death warrants that have been issued and revoked, not once, but repeatedly. See, e.g., Pet. for Cert. in Suárez Medina v. Texas , O. T. 2001, No. 02–5752, pp. 35–36 (filed Aug. 13, 2002) (“On fourteen separate occasions since Mr. Suárez Medina’s death sentence was imposed, he has been informed of the time, date, and manner of his death. At least eleven times, hehas been asked to describe the disposal of his bodilyremains”); Lithwick, Cruel but not Unusual , Slate,Apr. 1, 2011, online at http://www.slate.com/articles/news_and_politics/jurisprudence/2011/04/cruel_but_not_unusual.html (John Thompson had seven death warrants signed before he was exonerated); see also, e.g., WFMZ-TV 69 News, Michael John Parrish’s Execution Warrant Signed by Governor Corbett (Aug. 18, 2014), online at http: / / www.wfmz.com /news/Regional-Poconos-Coal / Local /michael-john-parrishs-execution -warrant -signed-by -governor -corbett/27595356 (former Pennsylvania Governor signed 36 death warrants in his first 3.5 years in office even though Pennsylvania has not carried out an execution since 1999). Several inmates have come within hours or days of execution before later being exonerated. Willie Manning was four hours from his scheduled execution before the Mississippi Supreme Court stayed the execution. See Robertson, With Hours to Go, Execution is Postponed, N. Y. Times, Apr. 8, 2015, p. A17. Two years later, Manning was exonerated after the evidence against him, including flawed testimony from an FBI hair examiner, was severely undermined. Nave, Why Does the State Still Want to Kill Willie Jerome Manning? Jackson Free Press, Apr. 29, 2015. Nor is Manning an outlier case. See, e.g., Martin, Randall Adams, 61, Dies; Freed With Help of Film, N. Y. Times, June 26, 2011, p. 24 (Randall Adams: stayed by this Court three days before execution; later exonerated); N. Davies, White Lies 231, 292, 298, 399 (1991) (Clarence Lee Brandley: execution stayed twice, once 6 days and once 10 days before; later exonerated); M. Edds, An Expendable Man 93 (2003) (Earl Washington, Jr.: stayed 9 days before execution; later exonerated). Furthermore, given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals. See, e.g., ACLU Report 8; Rountree, Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures, 82 UMKC L. Rev. 295 (2014) (11% of those executed have dropped appeals and volunteered); ACLU Report 3 (account of “ ‘guys who dropped their appeals because of the intolerable conditions’ ”). Indeed, one death row inmate, who was later exonerated, still said he would have preferred to die rather than to spend years on death row pursuing his exoneration. Strafer, Volunteering for Execution: Competency, Voluntariness and the Propriety of Third Party Intervention, 74 J. Crim. L. & C. 860, 869 (1983). Nor is it surprising that many inmates consider, or commit, suicide. Id. , at 872, n. 44 (35% of those confined on death row in Florida attempted suicide). Others have written at great length about the constitutional problems that delays create, and, rather than repeat their facts, arguments, and conclusions, I simply refer to some of their writings. See, e.g., Johnson , 558 U. S., at 1069 (statement of Stevens, J.) (delay “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement”); Furman , 408 U. S., at 288 (Brennan, J., concurring) (“long wait between the imposition of sentence and the actual infliction of death” is “inevitable” and often “exacts a frightful toll”); Solesbee v. Balkcom , 339 U. S. 9, 14 (1950) (Frankfurter, J., dissenting) (“In the history of murder, the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon”); People v. Anderson, 6 Cal. 3d 628, 649 , 493 P. 2d 880, 894 (1972) (collecting sources) (“[C]ruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out” (footnote omitted)); District Attorney for Suffolk Dist. v. Watson , 381 Mass. 648, 673, 411 N. E. 2d 1274, 1287 (1980) (Braucher, J., concurring) (death penalty unconstitutional under State Constitution in part because “[it] will be carried out only after agonizing months and years of uncertainty”); see also Riley v. Attorney General of Jamaica , [1983] 1 A. C. 719, 734–735 (P. C. 1982) (Lord Scarman, joined by Lord Brightman, dissenting) (“execution after inordinate delay” would infringe prohibition against “cruel and unusual punishments” in §10 of the “Bill of Rights of 1689,” the precursor to our Eighth Amendment); Pratt v. Attorney Gen. of Jamaica , [1994] 2 A. C. 1, 4 (P. C. 1993); id. , at 32–33 (collecting cases finding inordinate delays unconstitutional or the equivalent); State v . Makwanyane 1995 (3) SA391 (CC) (S. Afr.); Catholic Commission for Justice & Peace in Zimbabwe v. Attorney-General , [1993] 1 Zim. L. R. 242, 282 (inordinate delays unconstitutional); Soer-ing v. United Kingdom , 11 Eur. Ct. H. R. (ser. A), p. 439 (1989) (extradition of murder suspect to United States would violate the European Convention on Human Rights in light of risk of delay before execution); United States v. Burns, [2001] 1 S. C. R. 283, 353, ¶123 (similar). 2 The second constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty’s penological rationale, perhaps irreparably so. The rationale for capital punishment, as for any punishment, classically rests upon society’s need to secure deterrence, incapacitation, retribution, or rehabilitation. Capital punishment by definition does not rehabilitate. It does, of course, incapacitate the offender. But the major alternative to capital punishment—namely, life in prison without possibility of parole—also incapacitates. See Ring v. Arizona , 536 U. S. 584, 615 (2002) (Breyer, J., concurring in judgment). Thus, as the Court has recognized, the death penalty’s penological rationale in fact rests almost exclusively upon a belief in its tendency to deter and upon its ability to satisfy a community’s interest in retribution. See, e.g., Gregg , 428 U. S., at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.). Many studies have examined the death penalty’s deterrent effect; some have found such an effect, whereas others have found a lack of evidence that it deters crime. Compare ante , at 5 (Scalia, J., concurring) (collecting studies finding deterrent effect), with e.g., Sorensen, Wrinkle, Brewer, & Marquart, Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas, 45 Crime & Delinquency 481 (1999) (no evidence of a deterrent effect); Bonner & Fessenden, Absence of Executions: A Special Report, States With No Death Penalty Share Lower Homicide Rates, N. Y. Times, Sept. 22, 2000, p. A1 (from 1980–2000, homicide rate in death-penalty States was 48% to 101% higher than in non-death-penalty States); Radelet & Akers, Deterrence and the Death Penalty: The Views of the Experts, 87 J. Crim. L. & C. 1, 8 (1996) (over 80% of criminologists believe existing research fails to support deterrence justification); Donohue & Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791, 794 (2005) (evaluating existing statistical evidence and concluding that there is “profound uncertainty” about the existence of a deterrent effect). Recently, the National Research Council (whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine) reviewed 30 years of empirical evidence and concluded that it was insufficient to establish a deterrent effect and thus should “not be used to inform” discussion about the deterrent value of the death penalty. National Research Council, Deterrence and the Death Penalty 2 (D. Nagin & J. Pepper eds. 2012); accord, Baze v. Rees , 553 U. S. 35, 79 (2008) (Stevens, J., concurring in judgment) (“Despite 30 years of empirical re-search in the area, there remains no reliable statistical evi-dence that capital punishment in fact deters potential offenders”). I recognize that a “lack of evidence” for a proposition does not prove the contrary. See Ring , supra , at 615 (one might believe the studies “inconclusive”). But suppose that we add to these studies the fact that, today, very few of those sentenced to death are actually executed, and that even those executions occur, on average, after nearly two decades on death row. DPIC, Execution List 2014, supra . Then, does it still seem likely that the death penalty has a significant deterrent effect? Consider, for example, what actually happened to the 183 inmates sentenced to death in 1978. As of 2013 (35 years later), 38 (or 21% of them) had been executed; 132 (or 72%) had had their convictions or sentences overturned or commuted; and 7 (or 4%) had died of other (likely natural) causes. Six (or 3%) remained on death row. BJS 2013 Stats, at 19 (Table 16). The example illustrates a general trend. Of the 8,466 inmates under a death sentence at some point between 1973 and 2013, 16% were executed, 42% had their convictions or sentences overturned or commuted, and 6% died by other causes; the remainder (35%) are still on death row. Id., at 20 (Table 17); see also Baumgartner & Dietrich, Most Death Penalty Sentences Are Overturned: Here’s Why That Matters, Washington Post Blog, Monkey Cage, Mar. 17, 2015 (similar). Thus an offender who is sentenced to death is two or three times more likely to find his sentence overturned or commuted than to be executed; and he has a good chance of dying from natural causes before any execution (or exoneration) can take place. In a word, executions are rare . And an individual contemplating a crime but evaluating the potential punishment would know that, in any event, he faces a potential sentence of life without parole. These facts, when recurring, must have some offsetting effect on a potential perpetrator’s fear of a death penalty. And, even if that effect is no more than slight, it makes it difficult to believe (given the studies of deterrence cited earlier) that such a rare event significantly deters horrendous crimes. See Furman , 408 U. S., at 311–312 (White, J., concurring) (It cannot “be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient”). But what about retribution? Retribution is a valid penological goal. I recognize that surviving relatives of victims of a horrendous crime, or perhaps the community itself, may find vindication in an execution. And a community that favors the death penalty has an understand-able interest in representing their voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) (Illinois Governor George Ryan explained his decision to commute all death sentences on the ground that it was “cruel and unusual” for “family members to go through this . . . legal limbo for [20] years”). The relevant question here, however, is whether a “community’s sense of retribution” can often find vindication in “a death that comes,” if at all, “only several decades after the crime was committed.” Valle v. Florida , 564 U. S. ___, ___ (2011) (Breyer, J., dissenting from denial of stay) (slip op., at 3). By then the community is a different group of people. The offenders and the victims’ families have grown far older. Feelings of outrage may have subsided. The offender may have found himself a changed human being. And sometimes repentance and even forgiveness can restore meaning to lives once ruined. At the same time, the community and victims’ families will know that, even without a further death, the offender will serve decades in prison under a sentence of life without parole. I recognize, of course, that this may not always be the case, and that sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community’s interest in retribution to the point where it cannot by itself amount to a significant justification for the death penalty. Id., at ___ (slip op., at 3). In any event, I believe that whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole (a sentence that every State now permits, see ACLU, A Living Death: Life Without Parole for Nonviolent Offenses 11, and n. 10 (2013)). Finally, the fact of lengthy delays undermines any effort to justify the death penalty in terms of its prevalence when the Founders wrote the Eighth Amendment. When the Founders wrote the Constitution, there were no 20- or 30-year delays. Execution took place soon after sentencing. See P. Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776–1861, p. 17 (1982); T. Jefferson, A Bill for Proportioning Crimes and Punishments (1779), reprinted in The Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John Marshall 207–209 (C. Cullen & H. Johnson eds. 1977) (describing petition for commutation based in part on 5-month delay); Pratt v. Attorney Gen. of Jamaica, [1994] 2 A. C., at 17 (same in United Kingdom) (collecting cases). And, for reasons I shall describe, infra , at 29–33, we cannot return to the quick executions in the founding era. 3 The upshot is that lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale. And this Court has said that, if the death penalty does not fulfill the goals of deterrence or retribution, “it is nothing more than the purposeless and needless imposition of pain and suffering and hence an unconstitutional punishment.” Atkins , 536 U. S., at 319 (quoting Enmund v. Florida , 458 U. S. 782, 798 (1982) ; internal quotation marks omitted); see also Gregg, 428 U. S., at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.) (“sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering”); Furman, supra , at 312 (White, J., concurring) (a “penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment”); Thompson , 556 U. S., at 1115 (statement of Stevens, J., respecting denial of certiorari) (similar). Indeed, Justice Lewis Powell (who provided a crucial vote in Gregg ) came to much the same conclusion, albeit after his retirement from this Court. Justice Powell had come to the Court convinced that the Federal Constitution did not outlaw the death penalty but rather left the matter up to individual States to determine. Furman , supra , at 431–432 (Powell, J., dissenting); see also J. Jeffries, Justice Lewis F. Powell, Jr., p. 409 (2001) (describing Powell, during his time on the Court, as a “fervent partisan” of “the constitutionality of capital punishment”). Soon after Justice Powell’s retirement, Chief Justice Rehnquist appointed him to chair a committee addressing concerns about delays in capital cases, the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases (Committee). The Committee presented a report to Congress, and Justice Powell testified that “[d]elay robs the penalty of much of its deterrent value.” Habeas Corpus Reform, Hearings before the Senate Committee on the Judiciary, 100th Cong., 1st and 2d Sess., 35 (1989 and 1990). Justice Powell, according to his official biographer, ultimately concluded that capital punishment: “ ‘serves no useful purpose.’ The United States was ‘unique among the industrialized nations of the West in maintaining the death penalty,’ and it was enforced so rarely that it could not deter. More important, the haggling and delay and seemingly endless litigation in every capital case brought the law itself into disrepute.” Jeffries, supra, at 452. In short, the problem of excessive delays led Justice Powell, at least in part, to conclude that the death penalty was unconstitutional. As I have said, today delays are much worse. When Chief Justice Rehnquist appointed Justice Powell to the Committee, the average delay between sentencing and execution was 7 years and 11 months, compared with 17 years and 7 months today. Compare BJS, L. Greenfeld, Capital Punishment, 1990, p. 11 (Table 12) (Sept. 1991) with supra, at 18–19. C One might ask, why can Congress or the States not deal directly with the delay problem? Why can they not take steps to shorten the time between sentence and execution, and thereby mitigate the problems just raised? The answer is that shortening delay is much more difficult than one might think. And that is in part because efforts to do so risk causing procedural harms that also undermine the death penalty’s constitutionality. For one thing, delays have helped to make application of the death penalty more reliable. Recall the case of Henry Lee McCollum, whom DNA evidence exonerated 30 years after his conviction. Katz & Eckholm, N. Y. Times, at A1. If McCollum had been executed earlier, he would not have lived to see the day when DNA evidence exonerated him and implicated another man; that man is already serving a life sentence for a rape and murder that he committed just a few weeks after the murder McCollum was convicted of. Ibid. In fact, this Court had earlier denied reviewof McCollum’s claim over the public dissent of only one Justice. McCollum v. North Carolina , 512 U. S. 1254 (1994) . And yet a full 20 years after the Court denied review, McCollum was exonerated by DNA evidence. There are a significant number of similar cases, some of which I have discussed earlier. See also DPIC Innocence List, supra (Nathson Fields, 23 years; Paul House, 23 years; Nicholas Yarris, 21 years; Anthony Graves, 16 years; Damon Thibodeaux, 15 years; Ricky Jackson, Wiley Bridgeman, and Kwame Ajamu, all exonerated for the same crime 39 years after their convictions). In addition to those who are exonerated on the ground that they are innocent, there are other individuals whose sentences or convictions have been overturned for other reasons (as discussed above, state and federal courts found error in 68% of the capital cases they reviewed between 1973 and 1995). See Part I, supra . In many of these cases, a court will have found that the individual did not merit the death penalty in a special sense—namely, he failed to receive all the procedural protections that the law requires for the death penalty’s application. By eliminating some of these protections, one likely could reduce delay. But which protections should we eliminate? Should we eliminate the trial-related protections we have established for capital defendants: that they be able to present to the sentencing judge or jury all mitigating circumstances, Lockett v. Ohio , 438 U. S. 586 ; that the State provide guidance adequate to reserve the application of the death penalty to particularly serious murders, Gregg, 428 U. S. 153 ; that the State provide adequate counsel and, where warranted, adequate expert assistance, Powell v. Alabama , 287 U. S. 45 (1932) ; Wiggins v. Smith , 539 U. S. 510 (2003) ; Ake v. Oklahoma , 470 U. S. 68 (1985) ; or that a jury must find the aggravating factors necessary to impose the death penalty, Ring , 536 U. S. 584 ; see also id., at 614 (Breyer, J., concurring in judgment)? Should we no longer ensure that the State does not execute those who are seriously intellectually disabled, Atkins , 536 U. S. 304 ? Should we eliminate the requirement that the manner of execution be constitutional, Baze , 553 U. S. 35 , or the requirement that the inmate be mentally competent at the time of his execution, Ford v. Wainwright , 477 U. S. 399 (1986) ? Or should we get rid of the criminal protections that all criminal defendants receive—for instance, that defendants claiming violation of constitutional guarantees (say “due process of law”) may seek a writ of habeas corpus in federal courts? See, e.g., O’Neal v. McAninch , 513 U. S. 432 (1995) . My answer to these questions is “surely not.” But see ante, at 5–7 (Scalia, J., concurring). One might, of course, argue that courts, particularly federal courts providing additional layers of review, apply these and other requirements too strictly, and that causes delay. But, it is difficult for judges, as it would be difficult for anyone, not to apply legal requirements punctiliously when the consequence of failing to do so may well be death, particularly the death of an innocent person. See, e.g., Zant v. Stephens , 462 U. S. 862, 885 (1983) (“[A]lthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error”); Kyles v. Whitley , 514 U. S. 419, 422 (1995) (“[O]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case” (internal quotation marks omitted)); Thompson , 556 U. S., at 1116 (statement of Stevens, J.) (“Judicial process takes time, but the error rate in capital cases illustrates its necessity”). Moreover, review by courts at every level helps to ensure reliability; if this Court had not ordered that Anthony Ray Hinton receive further hearings in state court, see Hinton v. Alabama , 571 U. S. ___, he may well have been executed rather than exonerated. In my own view, our legal system’s complexity, our federal system with its separate state and federal courts, our constitutional guarantees, our commitment to fair procedure, and, above all, a special need for reliability and fairness in capital cases, combine to make significant procedural “reform” unlikely in practice to reduce delays to an acceptable level. And that fact creates a dilemma: A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place. See Knight , 528 U. S., at 998 (Breyer, J., dissenting from denial of certiorari) (one of the primary causes of the delay is the States’ “failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentencing”). But a death penalty system that minimizes delays would undermine the legal system’s efforts to secure reliability and procedural fairness. In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death penalty violates the Eighth Amendment. A death penalty system that is unreliable or procedurally unfair would violate the Eighth Amendment. Woodson , 428 U. S., at 305 (plurality opinion); Hall , 572 U. S., at ___ (slip op., at 22); Roper , 543 U. S., at 568. And so would a system that, if reliable and fair in its application of the death penalty, would serve no legitimate penological purpose. Furman, 408 U. S., at 312 (White, J., concurring); Gregg, supra , at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.); Atkins , supra , at 319. IV “Unusual”—Decline in Use of the Death Penalty The Eighth Amendment forbids punishments that are cruel and unusual. Last year, in 2014, only seven States carried out an execution. Perhaps more importantly, in the last two decades, the imposition and implementation of the death penalty have increasingly become unusual. I can illustrate the significant decline in the use of the death penalty in several ways. An appropriate starting point concerns the trajectory of the number of annual death sentences nationwide, from the 1970’s to present day. In 1977—just after the Supreme Court made clear that, by modifying their legislation, States could reinstate the death penalty — 137 people were sentenced to death. BJS 2013 Stats, at 19 (Table 16). Many States having revised their death penalty laws to meet Furman’ s requirements, the number of death sentences then increased. Between 1986 and 1999, 286 persons on average were sentenced to death each year. BJS 2013 Stats, at 14, 19 (Tables 11 and 16). But, approximately 15 years ago, the numbers began to decline, and they have declined rapidly ever since. See Appendix A, infra (showing sentences from 1977–2014). In 1999, 279 persons were sentenced to death. BJS 2013 Stats, at 19 (Table 16). Last year, just 73 persons were sentenced to death. DPIC, The Death Penalty in 2014: Year End Report 1 (2015). That trend, a significant decline in the last 15 years, also holds true with respect to the number of annual executions. See Appendix B, infra (showing executions from 1977–2014). In 1999, 98 people were executed. BJS, Data Collection: National Prisoner Statistics Program (BJS Prisoner Statistics) (available in Clerk of Court’s case file). Last year, that number was only 35. DPIC, The Death Penalty in 2014, supra , at 1. Next, one can consider state-level data. Often when deciding whether a punishment practice is, constitutionally speaking, “unusual,” this Court has looked to the num-ber of States engaging in that practice. Atkins , 536 U. S. , at 313–316; Roper , supra , at 564–566. In this respect, the number of active death penalty States has fallen dramatically. In 1972, when the Court decided Furman, the death penalty was lawful in 41 States. Nine States had abolished it. E. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America 145 (2013). As of today, 19 States have abolished the death penalty (along with the District of Columbia), although some did so prospectively only. See DPIC, States With and Without the Death Penalty, online at http://www.deathpenaltyinfo.org/states-and-without-death-penalty. In 11 other States that maintain the death penalty on the books, no execution has taken place for more than eight years: Arkansas (last execution 2005); California (2006); Colorado (1997); Kansas (no executions since the death penalty was reinstated in 1976); Montana (2006); Nevada (2006); New Hampshire (no executions since the death penalty was reinstated in 1976); North Carolina (2006); Oregon (1997); Pennsylvania (1999); and Wyoming (1992). DPIC, Executions by State and Year, online at http://www.deathpenaltyinfo.org/node/5741. Accordingly, 30 States have either formally abolished the death penalty or have not conducted an execution in more than eight years. Of the 20 States that have conducted at least one execution in the past eight years, 9 have conducted fewer than five in that time, making an execution in those States a fairly rare event. BJS Prisoner Statistics (Delaware, Idaho, Indiana, Kentucky, Louisiana, South Dakota, Tennessee, Utah, Washington). That leaves 11 States in which it is fair to say that capital punishment is not “unusual.” And just three of those States (Texas, Missouri, and Florida) accounted for 80% of the executions nationwide (28 of the 35) in 2014. See DPIC, Number of Executions by State and Region Since 1976, online at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976. Indeed, last year, only seven States conducted an execution. DPIC, Executions by State and Year, supra ; DPIC, Death Sentences in the United States From 1977 by State and by Year, online at http : / / www . deathpenaltyinfo .org / death - sentences - united -states-1977-2008. In other words, in 43 States, no one was executed. In terms of population, if we ask how many Americans live in a State that at least occasionally carries out an execution (at least one within the prior three years), the answer two decades ago was 60% or 70%. Today, that number is 33%. See Appendix C, infra . At the same time, use of the death penalty has become increasingly concentrated geographically. County-by-county figures are relevant, for decisions to impose the death penalty typically take place at a county level. See supra, at 12–13. County-level sentencing figures show that, between 1973 and 1997, 66 of America’s 3,143 counties accounted for approximately 50% of all death sentences imposed. Liebman & Clarke 264–265; cf. id., at 266 . (counties with 10% of the Nation’s population imposed 43% of its death sentences). By the early 2000’s, the death penalty was only actively practiced in a very small number of counties: between 2004 and 2009, only 35 counties imposed 5 or more death sentences, i.e., approximately one per year. See Appendix D, infra (such counties colored in red) (citing Ford, The Death Penalty’s Last Stand, The Atlantic, Apr. 21, 2015). And more recent data show that the practice has diminished yet further: between 2010 and 2015 (as of June 22), only 15 counties imposed five or more death sentences. See Appendix E, infra . In short, the number of active death penalty counties is small and getting smaller. And the overall statistics on county-level executions bear this out. Between 1976 and 2007, there were no executions in 86% of America’s counties. Liebman & Clarke 265–266, and n. 47; cf. ibid. (counties with less than 5% of the Nation’s population carried out over half of its executions from 1976–2007). In sum, if we look to States, in more than 60% there is effectively no death penalty, in an additional 18% an execution is rare and unusual, and 6%, i.e. , three States, account for 80% of all executions. If we look to population, about 66% of the Nation lives in a State that has not carried out an execution in the last three years. And if we look to counties, in 86% there is effectively no death pen-alty. It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the Nation as a whole. See Furman , 408 U. S., at 311 (1972) (White, J., concurring) (executions could be so infrequently carried out that they “would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system . . . when imposition of the penalty reaches a certain degreeof infrequency, it would be very doubtful that any exist-ing general need for retribution would be measurably satisfied”). Moreover, we have said that it “ ‘is not so much the number of these States that is significant, but the consistency of the direction of change.’ ” Roper , 543 U. S., at 566 (quoting Atkins , supra , at 315) (finding significant that five States had abandoned the death penalty for juveniles, four legislatively and one judicially, since the Court’s decision in Stanford v. Kentucky , 492 U. S. 361 (1989) ). Judged in that way, capital punishment has indeed become unusual. Seven States have abolished the death penalty in the last decade, including (quite recently) Nebraska. DPIC, States With and Without the Death Penalty, supra . And several States have come within a single vote of eliminating the death penalty. Seelye, Measure to Repeal Death Penalty Fails by a Single Vote in New Hampshire Senate, N. Y. Times, Apr. 17, 2014, p. A12; Dennison, House Deadlocks on Bill To Abolish Death Penalty in Montana, Billings Gazette, Feb. 23, 2015; see also Offredo, Delaware Senate Passes Death Penalty Repeal Bill, Delaware News Journal, Apr. 3, 2015. Eleven States, as noted earlier, have not executed anyone in eight years. Supra, at 34–35. And several States have formally stopped executing inmates. See Yardley, Oregon’s Governor Says He Will Not Allow Executions, N. Y. Times, Nov. 23, 2011, p. A14 (Oregon); Governor of Colorado, Exec. Order No. D2013–006, May 22, 2013 (Colorado); Lovett, Executions Are Suspended by Governor in Washington, N. Y. Times, Feb. 12, 2014, p. A12 (Washington); Begley, Pennsylvania Stops Using the Death Penalty, Time, Feb. 13, 2015 (Pennsylvania); see also Welsh-Huggins, Associated Press, Ohio Executions Rescheduled, Jan. 30, 2015 (Ohio). Moreover, the direction of change is consistent. In the past two decades, no State without a death penalty has passed legislation to reinstate the penalty. See Atkins , supra, at 315–316; DPIC, States With and Without the Death Penalty, supra . Indeed, even in many States most associated with the death penalty, remarkable shifts have occurred. In Texas, the State that carries out the most executions, the number of executions fell from 40 in 2000 to 10 in 2014, and the number of death sentences fell from 48 in 1999 to 9 in 2013 (and 0 thus far in 2015). DPIC, Executions by State and Year, supra ; BJS, T. Snell, Capital Punishment, 1999, p. 6 (Table 5) (Dec. 2000) (hereinafter BJS 1999 Stats); BJS 2013 Stats, at 19 (Table 16); von Drehle, Bungled Executions, Backlogged Courts, and Three More Reasons the Modern Death Penalty Is a Failed Experiment, Time, June 8, 2015, p. 26. Similarly dramatic declines are present in Virginia, Oklahoma, Missouri, and North Carolina. BJS 1999 Stats, at 6 (Table 5); BJS 2013 Stats, at 19 (Table 16). These circumstances perhaps reflect the fact that a majority of Americans, when asked to choose between the death penalty and life in prison without parole, now choose the latter. Wilson, Support for Death Penalty Still High, But Down, Washington Post, GovBeat, June 5, 2014, online at www . washingtonpost . com / blogs / govbeat / wp /2014 / 06 / 05 / support - for - death - penalty-still-high-but-down;see also ALI, Report of the Council to the Membership on the Matter of the Death Penalty 4 (Apr. 15, 2009) (withdrawing Model Penal Code section on capital punishment section from the Code, in part because of doubts that the American Law Institute could “recommend procedures that would” address concerns about the administration of the death penalty); cf. Gregg , 428 U. S., at 193–194 (joint opinion of Stewart, Powell, and Stevens, JJ.) (relying in part on Model Penal Code to conclude that a “carefully drafted statute” can satisfy the arbitrariness concerns expressed in Furman ). I rely primarily upon domestic, not foreign events, in pointing to changes and circumstances that tend to justify the claim that the death penalty, constitutionally speaking, is “unusual.” Those circumstances are sufficient to warrant our reconsideration of the death penalty’s constitutionality. I note, however, that many nations—indeed, 95 of the 193 members of the United Nations—have formally abolished the death penalty and an additional 42 have abolished it in practice. Oakford, UN Vote Against Death Penalty Highlights Global Abolitionist Trend–and Leaves the US Stranded, Vice News, Dec. 19, 2014, online at https :   /  / news . vice . com  /  article  /  un - vote - against - death -penalty - highlights - global-abolitionist-trend-and-leaves-the-us-stranded. In 2013, only 22 countries in the world carried out an execution. International Commission Against Death Penalty, Review 2013, pp. 2–3. No executions were carried out in Europe or Central Asia, and the United States was the only country in the Americas to execute an inmate in 2013. Id. , at 3. Only eight countries executed more than 10 individuals (the United States, China, Iran, Iraq, Saudi Arabia, Somalia, Sudan, Yemen). Id., at 2. And almost 80% of all known executions took place in three countries: Iran, Iraq, and Saudi Arabia. Amnesty International, Death Sentences and Executions 2013, p. 3 (2014). (This figure does not include China, which has a large population, but where precise data cannot be obtained. Id., at 2.) V I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legislators, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here. See, e.g., Berman, Nebraska Lawmakers Abolish the Death Penalty, Narrowly Overriding Governor’s Veto, Washington Post Blog, Post Nation, May 27, 2015) (listing cost as one of the reasons why Nebraska legislators re-cently repealed the death penalty in that State); cf. California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration of the Death Penalty in California 117 (June 30, 2008) (death penalty costs California $137 million per year; a comparable system of life imprisonment without parole would cost $11.5 million per year), online at http://www.ccfaj.org/rr-dp-official.html; Dáte, The High Price of Killing Killers, Palm Beach Post, Jan. 4, 2000, p. 1A (cost of each execution is $23 million above cost of life imprisonment without parole in Florida). The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. See Marbury v. Madison , 1 Cranch 137, 177 (1803); Hall , 572 U. S., at ___ (slip op., at 19) (“That exercise of independent judgment is the Court’s judicial duty”). We have made clear that “ ‘the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Id. , at ___ (slip op., at 19) (quoting Coker v. Georgia , 433 U. S. 584, 597 (1977) (plurality opinion)); see also Thompson v. Oklahoma , 487 U. S. 815, 833, n. 40 (1988) (plurality opinion). For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question. With respect, I dissent. APPENDICES A Death Sentences Imposed 1977–2014 B Executions 1977–2014 C Percentage of U.S. population in States that conducted an execution within prior 3 years 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 confirmed 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.[ 1 ]* 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 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 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 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 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 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 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 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 empirical 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. Notes 1 * 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. SUPREME COURT OF THE UNITED STATES _________________ No. 14–7955 _________________ RICHARD E. GLOSSIP, et al., PETITIONERS v. KEVIN J. GROSS, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 29, 2015] Justice Sotomayor, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting. Petitioners, three inmates on Oklahoma’s death row, challenge the constitutionality of the State’s lethal injection protocol. The State plans to execute petitioners using three drugs: midazolam, rocuronium bromide, and potassium chloride. The latter two drugs are intended to paralyze the inmate and stop his heart. But they do so in a torturous manner, causing burning, searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious. Petitioners claim that midazolam cannot be expected to perform that function, and they have presented ample evidence showing that the State’s planned use of this drug poses substantial, constitutionally intolerable risks. Nevertheless, the Court today turns aside petitioners’ plea that they at least be allowed a stay of execution while they seek to prove midazolam’s inadequacy. The Court achieves this result in two ways: first, by deferring to the District Court’s decision to credit the scientifically unsupported and implausible testimony of a single expert witness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions. On both counts the Court errs. As a result, it leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake. I A The Eighth Amendment succinctly prohibits the infliction of “cruel and unusual punishments.” Seven years ago, in Baze v. Rees , 553 U. S. 35 (2008) , the Court addressed the application of this mandate to Kentucky’s lethal injection protocol. At that time, Kentucky, like at least 29 of the 35 other States with the death penalty, utilized a series of three drugs to perform executions: (1) sodium thiopental, a “fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection”; (2) pancuronium bromide, “a paralytic agent that inhibits all muscular-skeletal movements and . . . stops respiration”; and (3) potassium chloride, which “interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest.” Id., at 44 (plurality opinion of Roberts, C. J.). In Baze , it was undisputed that absent a “proper dose of sodium thiopental,” there would be a “substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.” Id., at 53. That is because, if given to a conscious inmate, pancuronium bromide would leave him or her asphyxiated and unable to demonstrate “any outward sign of distress,” while potassium chloride would cause “excruciating pain.” Id., at 71 (Stevens, J., concurring in judgment). But the Baze petitioners conceded that if administered as intended, Kentucky’s method of execution would nevertheless “result in a humane death,” id., at 41 (plurality opinion), as the “proper administration” of sodium thiopental “eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride,” id., at 49. Based on that premise, the Court ultimately rejected the challenge to Kentucky’s protocol, with the plurality opinion concluding that the State’s procedures for administering these three drugs ensured there was no “objectively intolerable risk” of severe pain. Id., at 61–62 (internal quotation marks omitted). B For many years, Oklahoma performed executions using the same three drugs at issue in Baze. After Baze was decided, however, the primary producer of sodium thiopental refused to continue permitting the drug to be used in executions. Ante, at 4–5. Like a number of other States, Oklahoma opted to substitute pentobarbital, another barbiturate, in its place. But in March 2014, shortly before two scheduled executions, Oklahoma found itself unable to secure this drug. App. 144. The State rescheduled the executions for the following month to give it time to locate an alternative anesthetic. In less than a week, a group of officials from the Okla-homa Department of Corrections and the Attorney General’s office selected midazolam to serve as a replacement for pentobarbital. Id., at 145, 148–149. Soon thereafter, Oklahoma used midazolam for the first time in its execution of Clayton Lockett. That execution did not go smoothly. Ten minutes after an intravenous (IV) line was set in Lockett’s groin area and 100 milligrams of midazolam were administered, an attending physician declared Lockett unconscious. Id. , at 392–393. When the paralytic and potassium chloride were administered, however, Lockett awoke. Ibid . Various witnesses reported that 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.” Id. , at 53 (internal quotation marks omitted). State officials ordered the blinds lowered, then halted the execution. Id. , at 393, 395. But 10 minutes later—approximately 40 minutes after the execution began—Lockett was pronounced dead. Id. , at 395. The State stayed all future executions while it sought to determine what had gone wrong in Lockett’s. Five months later, the State released an investigative report identifying a flaw in the IV line as the principal difficulty: The IV had failed to fully deliver the lethal drugs into Lockett’s veins. Id. , at 398. An autopsy determined, however, that the concentration of midazolam in Lockett’s blood was more than sufficient to render an average person unconscious. Id. , at 397, 405. In response to this report, the State modified its lethal injection protocol. The new protocol contains a number of procedures designed to guarantee that members of the execution team are able to insert the IV properly, and charges them with ensuring that the inmate is unconscious. Id. , at 57–66, 361–369. But the protocol continues to authorize the use of the same three-drug formula used to kill Lockett—though it does increase the intended dose of midazolam from 100 milligrams to 500 milligrams. Id., at 61. The State has indicated that it plans to use this drug combination in all upcoming executions, subject to only an immaterial substitution of paralytic agents. Ante , at 7–8. C In June 2014, inmates on Oklahoma’s death row filed a 42 U. S. C. §1983 suit against respondent prison officials challenging the constitutionality of Oklahoma’s method of execution. After the State released its revised execution protocol, the four inmates whose executions were most imminent—Charles Warner, along with petitioners Richard Glossip, John Grant, and Benjamin Cole—moved for a preliminary injunction. They contended, among other things, that the State’s intended use of midazolam would violate the Eighth Amendment because, unlike sodium thiopental or pentobarbital, the drug “is incapable of producing a state of unawareness that will be reliably maintained after either of the other two pain-producing drugs . . . is injected.” Amended Complaint ¶101. The District Court held a 3-day evidentiary hearing, at which petitioners relied principally on the testimony of two experts: Dr. David Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a doctor of pharmacy. The State, in turn, based its case on the testimony of Dr. Roswell Evans, also a doctor of pharmacy. To a great extent, the experts’ testimony overlapped. All three experts agreed that midazolam is from a class of sedative drugs known as benzodiazepines (a class that includes Valium and Xanax), and that it has no analgesic—or pain-relieving—effects. App. 205 (Lubarsky), 260–261 (Sasich) , 311 (Evans). They further agreed that while midazolam can be used to render someone unconscious, it is not approved by the Federal Drug Administration (FDA) for use as, and is not in fact used as, a “sole drug to produce and maintain anesthesia in surgical proceedings.” Id., at 307, 327 (Evans); see id., at 171 (Lubarsky); id., at 262 (Sasich). Finally, all three experts recognized 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. Id., at 172 (Lubarsky), 243 (Sasich), 331 (Evans). The experts’ opinions diverged, however, on the crucial questions of how this ceiling effect operates, and whether it will prevent midazolam from keeping a condemned inmate unconscious when the second and third lethal injection drugs are administered. Dr. Lubarsky testified that while benzodiazepines such as midazolam may, like barbiturate drugs such as sodium thiopental and pentobarbital, induce unconsciousness by inhibiting neuron function, they do so in a materially different way. Id., at 207. More specifically, Dr. Lubarsky explained that both barbiturates and benzodiazepines initially cause sedation by facilitating the binding of a naturally occurring chemical called gamma-aminobutyric acid (GABA) with GABA receptors, which then impedes the flow of electrical impulses through the neurons in the central nervous system. Id., at 206. But at higher doses, barbiturates also act as a GABA substitute and mimic its neuron-suppressing effects. Ibid. By contrast, benzodiazepines lack this mimicking function, which means their effect is capped at a lower level of sedation. Ibid. Critically, according to Dr. Lubarsky, this ceiling on midazolam’s sedative effect is reached before full anesthesia can be achieved. Ibid . Thus, in his view, while “midazolam unconsciousness is . . . sufficient” for “minor procedure[s],” Tr. of Preliminary Injunction Hearing 132–133 (Tr.), it is incapable of keeping someone “insensate and immobile in the face of [more] noxious stimuli,” including the extreme pain and discomfort associated with administration of the second and third drugs in Oklahoma’s lethal injection protocol, App. 218. Dr. Sasich endorsed Dr. Lubarsky’s description of the ceiling effect, and offered similar reasons for reaching the same conclusion. See id., at 243, 248, 262. In support of these assertions, both experts cited a variety of evidence. Dr. Lubarsky emphasized, in particular, Arizona’s 2014 execution of Joseph Wood, which had been conducted using midazolam and the drug hydromorphone rather than the three-drug cocktail Oklahoma intends to employ.[ 1 ] Id., at 176. Despite being administered 750 milligrams of midazolam, Wood had continued breathing and moving for nearly two hours—which, according to Dr. Lubarsky, would not have occurred “during extremely deep levels of anesthesia.” Id., at 177. Both experts also cited various scientific articles and textbooks to support their conclusions. For instance, Dr. Lubarsky relied on a study measuring the brain activity of rats that were administered midazolam, which showed that the drug’s impact significantly tailed off at higher doses. See Hovinga et al., Pharmacokinetic-EEG Effect Relationship of Midazolam in Aging BN/BiRij Rats, 107 British J. Pharmacology 171, 173, Fig. 2 (1992). He also pointed to a pharmacology textbook that confirmed his description of how benzodiazepines and barbiturates produce their effects, see Stoelting & Hillier 127–128, 140–144, and a survey article concluding that “[m]idazolam cannot be used alone . . . to maintain adequate anesthesia,” Reves, Fragen, Vinik, & Greenblatt, Midazolam: Pharmacology and Uses, 62 Anesthesiology 310, 318 (1985) (Reves). For his part, Dr. Sasich referred to a separate survey article, which similarly recognized and described the ceiling effect to which benzodiazepines are subject. See Saari, Uusi- Oukari, Ahonen, & Olkkola, Enhancement of GABAergic Activity: Neuropharmacological Effects of Benzodiazepines and Therapeutic Use in Anesthesiology, 63 Pharamacological Rev. 243, 244, 250 (2011) (Saari). By contrast, Dr. Evans, the State’s expert, asserted that a 500-milligram dose of midazolam would “render the person unconscious and ‘insensate’ during the remainder of the [execution] procedure.” App. 294. He rested this conclusion on two interrelated propositions. First, observing that a therapeutic dose of midazolam to treat anxiety is less than 5 milligrams for a 70-kilogram adult, Dr. Evans emphasized that Oklahoma’s planned administration of 500 milligrams of the drug was “at least 100 times the normal therapeutic dose.” Ibid. While he acknowledged that “[t]here are no studies that have been done . . . administering that much . . . midazolam . . . to anybody,” he noted that deaths had occurred in doses as low as 0.04 to 0.07 milligrams per kilogram (2.8 to 4.9 milligrams for a 70-kilogram adult), and contended that a 500-milligram dose would itself cause death within less than an hour—a conclusion he characterized as “essentially an extrapolation from a toxic effect.” Id., at 327; see id., at 308. Second, in explaining how he reconciled his opinion with the evidence of midazolam’s ceiling effect, Dr. Evans testified that while “GABA receptors are found across the entire body,” midazolam’s ceiling effect is limited to the “spinal cord” and there is “no ceiling effect” at the “higher level of [the] brain.” Id., at 311–312. Consequently, in his view, “as you increase the dose of midazolam, it’s a linear effect, so you’re going to continue to get an impact from higher doses of the drug,” id. , at 332, until eventually “you’re paralyzing the brain,” id. , at 314. Dr. Evans also understood the chemical source of midazolam’s ceiling effect somewhat differently from petitioners’ experts. Although he agreed that midazolam produces its effect by “binding to [GABA] receptors,” id., at 293, he appeared to believe that midazolam produced sedation by “inhibiting GABA” from attaching to GABA receptors, not by promoting GABA’s sedative effects, id., at 312. Thus, when asked about Dr. Lubarsky’s description of the ceiling effect, Dr. Evans characterized the phenomenon as stemming from “the competitive nature of substances trying to attach to GABA receptors.” Id. , at 313. Dr. Evans cited no scholarly research in support of his opinions. Instead, he appeared to rely primarily on two sources: the Web site www.drugs.com, and a “Material Safety Data Sheet” produced by a midazolam manufacturer. See id. , at 303. Both simply contained general information that covered the experts’ areas of agreement. D The District Court denied petitioners’ motion for a preliminary injunction. It began by making a series of factual findings regarding the characteristics of midazolam and its use in Oklahoma’s execution protocol. Most relevant here, the District Court found that “[t]he proper administration of 500 milligrams of midazolam . . . would make it a virtual certainty that an individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” Id. , at 77. Respecting petitioners’ contention that there is a “ceiling effect which prevents an increase in dosage from having a corresponding incremental effect on anesthetic depth,” the District Court concluded: “Dr. Evans testified persuasively . . . that whatever the ceiling effect of midazolam may be with respect to anesthesia, which takes effect at the spinal cord level, there is no ceiling effect with respect to the ability of a 500 milligram dose of midazolam to effectively paralyze the brain, a phenomenon which is not anesthesia but does have the effect of shutting down respiration and eliminating the individual’s awareness of pain.” Id. , at 78. Having made these findings, the District Court held that petitioners had shown no likelihood of success on the merits of their Eighth Amendment claim for two independent reasons. First, it determined that petitioners had “failed to establish that proceeding with [their] execution[s] . . . on the basis of the revised protocol presents . . . ‘an objectively intolerable risk of harm.’ ” Id. , at 96. Second, the District Court held that petitioners were unlikely to prevail because they had not identified any “ ‘known and available alternative’ ” means by which they could be executed—a requirement it understood Baze to impose. Id. , at 97. The District Court concluded that the State “ha[d] affirmatively shown that sodium thiopental and pentobarbital, the only alternatives to which the [petitioners] have even alluded, are not available to the [State].” Id. , at 98. The Court of Appeals for the Tenth Circuit affirmed. Warner v. Gross , 776 F. 3d 721 (2015). It, like the District Court, held that petitioners were unlikely to prevail on the merits because they had failed to prove the existence of “ ‘known and available alternatives.’ ” Id., at 732. “In any event,” the court continued, it was unable to conclude that the District Court’s factual findings had been clearly erroneous, and thus petitioners had also “failed to establish that the use of midazolam in their executions . . . creates a demonstrated risk of severe pain.” Ibid. Petitioners and Charles Warner filed a petition for certiorari and an application to stay their executions. The Court denied the stay application, and Charles Warner was executed on January 15, 2015. See Warner v. Gross , 574 U. S. ___ (2015) (Sotomayor, J., dissenting from denial of certiorari). The Court subsequently granted certiorari and, at the request of the State, stayed petitioners’ pending executions. II I begin with the second of the Court’s two holdings: that the District Court properly found that petitioners did not demonstrate a likelihood of showing that Oklahoma’s execution protocol poses an unconstitutional risk of pain. In reaching this conclusion, the Court sweeps aside substantial evidence showing that, while midazolam may be able to induce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli. Instead, like the District Court, the Court finds comfort in Dr. Evans’ wholly unsupported claims that 500 milligrams of midazolam will “paralyz[e] the brain.” In so holding, the Court disregards an objectively intolerable risk of severe pain. A Like the Court, I would review for clear error the District Court’s finding that 500 milligrams of midazolam will render someone sufficiently unconscious “ ‘to resist the noxious stimuli which could occur from the application of the second and third drugs.’ ” Ante, at 18–19 (quoting App. 77). Unlike the Court, however, I would do so without abdicating our duty to examine critically the factual predicates for the District Court’s finding—namely, Dr. Evans’ testimony that midazolam has a “ceiling effect” only “at the spinal cord level,” and that a “500 milligram dose of midazolam” can therefore “effectively paralyze the brain.” Id., at 78. To be sure, as the Court observes, such scientific testimony may at times lie at the boundaries of fed-eral courts’ expertise. See ante , at 17–18. But just because a purported expert says something does not make it so. Especially when important constitutional rights are at stake, federal district courts must carefully evaluate the premises and evidence on which scientific conclusions are based, and appellate courts must ensure that the courts below have in fact carefully considered all the evidence presented. Clear error exists “when although there is evidence to support” a finding, “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co. , 333 U. S. 364, 395 (1948) . Here, given the numerous flaws in Dr. Evans’ testimony, there can be little doubt that the District Court clearly erred in relying on it. To begin, Dr. Evans identified no scientific literature to support his opinion regarding midazolam’s properties at higher-than-normal doses. Apart from a Material Safety Data Sheet that was relevant only insofar as it suggests that a low dose of midazolam may occasionally be toxic, see ante, at 27—an issue I discuss further below—Dr. Evans’ testimony seems to have been based on the Web site www.drugs.com. The Court may be right that “petitioners do not identify any incorrect statements from drugs.com on which Dr. Evans relied.” Ante , at 27. But that is because there were no statements from drugs.com that supported the critically disputed aspects of Dr. Evans’ opinion. If anything, the Web site supported petitioners’ contentions, as it expressly cautioned that midazolam “[s]hould not be used alone for maintenance of anesthesia,” App. H to Pet. for Cert. 6159, and contained no warning that an excessive dose of midazolam could “paralyze the brain,” see id., at 6528–6529. Most importantly, nothing from drugs.com—or, for that matter, any other source in the record—corroborated Dr. Evans’ key testimony that midazolam’s ceiling effect is limited to the spinal cord and does not pertain to the brain. Indeed, the State appears to have disavowed Dr. Evans’ spinal-cord theory, refraining from even mentioning it in its brief despite the fact that the District Court expressly relied on this testimony as the basis for finding that larger doses of midazolam will have greater anesthetic effects. App. 78. The Court likewise assiduously avoids defending this theory. That is likely because this aspect of Dr. Evans’ testi-mony was not just unsupported, but was directly refuted by the studies and articles cited by Drs. Lubarsky and Sasich. Both of these experts relied on academic texts describing benzodiazepines’ ceiling effect and explaining why it prevents these drugs from rendering a person completely insensate. See Stoelting & Hillier 141, 144 (describing midazolam’s ceiling effect and contrasting the drug with barbiturates); Saari 244 (observing that “abolishment of perception of environmental stimuli cannot usually be generated”). One study further made clear that the ceiling effect is apparent in the brain. See id., at 250. These scientific sources also appear to demonstrate that Dr. Evans’ spinal-cord theory— i.e., that midazolam’s ceiling effect is limited to the spinal cord—was premised on a basic misunderstanding of midazolam’s mechanism of action. I say “appear” not because the sources themselves are unclear about how midazolam operates: They plainly state that midazolam functions by promoting GABA’s inhibitory effects on the central nervous system. See, e.g., Stoelting & Hillier 140. Instead, I use “appear” because discerning the rationale underlying Dr. Evans’ testimony is difficult. His spinal-cord theory might, however, be explained at least in part by his apparent belief that rather than promoting GABA’s inhibitory effects, midazolam produces sedation by “compet[ing]” with GABA and thus “inhibit[ing]” GABA’s effect. App. 312–313.[ 2 ] Regardless, I need not delve too deeply into Dr. Evans’ alternative scientific reality. It suffices to say that to the extent that Dr. Evans’ testimony was based on his understanding of the source of midazolam’s pharmacological properties, that understanding was wrong. These inconsistencies and inaccuracies go to the very heart of Dr. Evans’ expert opinion, as they were the key components of his professed belief that one can extrapolate from what is known about midazolam’s effect at low doses to conclude that the drug would “paralyz[e] the brain” at Oklahoma’s planned dose. Id., at 314. All three experts recognized that there had been no scientific testing on the use of this amount of midazolam in conjunction with these particular lethal injection drugs. See ante , at 19; App. 176 (Lubarsky), 243–244 (Sasich), 327 (Evans). For this reason, as the Court correctly observes, “extrapolation was reasonable.” Ante , at 20. But simply because extrapolation may be reasonable or even required does not mean that every conceivable method of extrapolation can be credited, or that all estimates stemming from purported extrapolation are worthy of belief. Dr. Evans’ view was that because 40 milligrams of midazolam could be used to induce unconsciousness, App. 294, and because more drug will generally produce more effect, a significantly larger dose of 500 milligrams would not just induce unconsciousness but allow for its maintenance in the face of extremely painful stimuli, and ultimately even cause death itself. In his words: “[A]s you increase the dose of midazolam, it’s a linear effect, so you’re going to continue to get an impact from higher doses of the drug.” Id. , at 332. If, however, there is a ceiling with respect to midazolam’s effect on the brain—as petitioners’ experts established there is—then such simplistic logic is not viable. In this context, more is not necessarily better, and Dr. Evans was plainly wrong to presume it would be. If Dr. Evans had any other basis for the “extrapolation” that led him to conclude 500 milligrams of midazolam would “paralyz[e] the brain,” id. , at 314, it was even further divorced from scientific evidence and logic. Having emphasized that midazolam had been known to cause approximately 80 deaths, Dr. Evans asserted that his opinion regarding the efficacy of Oklahoma’s planned use of the drug represented “essentially an extrapolation from a toxic effect.” Id. , at 327 (emphasis added); see id., at 308. Thus, Dr. Evans appeared to believe—and again, I say “appeared” because his rationale is not clear—that because midazolam caused some deaths, it would necessarily cause complete unconsciousness and then death at especially high doses. But Dr. Evans also thought, and Dr. Lubarsky confirmed, that these midazolam fatalities had occurred at very low doses—well below what any expert said would produce unconsciousness. See id. , at 207, 308. These deaths thus seem to represent the rare, unfortunate side effects that one would expect to see with any drug at normal therapeutic doses; they provide no indication of the effect one would expect midazolam to have on the brain at substantially higher doses. Deaths occur with almost any product. One might as well say that because some people occasionally die from eating one peanut, one hundred peanuts would necessarily induce a coma and death in anyone.[ 3 ] In sum, then, Dr. Evans’ conclusions were entirely unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of midazolam’s properties, and apparently premised on basic logical errors. Given these glaring flaws, the District Court’s acceptance of Dr. Evans’ claim that 500 milligrams of midazolam would “paralyz[e] the brain” cannot be credited. This is not a case “[w]here there are two permissibleviews of the evidence,” and the District Court chose one; rather, it is one where the trial judge credited “one of two or more witnesses” even though that witness failed to tell “a coherent and facially plausible story that is not contradicted by extrinsic evidence.” Anderson v. Bessemer City , 470 U. S. 564 –575 (1985). In other words, this is a case in which the District Court clearly erred. See ibid. B Setting aside the District Court’s erroneous factual finding that 500 milligrams of midazolam will necessarily “paralyze the brain,” the question is whether the Court is nevertheless correct to hold that petitioners failed to demonstrate that the use of midazolam poses an “objectively intolerable risk” of severe pain. See Baze , 553 U. S., at 50 (plurality opinion) (internal quotation marks omitted). I would hold that they made this showing. That is because, in stark contrast to Dr. Evans, petitioners’ experts were able to point to objective evidence indicating that midazolam cannot serve as an effective anesthetic that “render[s] a person insensate to pain caused by the second and third [lethal injection] drugs.” Ante , at 23. As observed above, these experts cited multiple sources supporting the existence of midazolam’s ceiling effect. That evidence alone provides ample reason to doubt midazolam’s efficacy. Again, to prevail on their claim, petitioners need only establish an intolerable risk of pain, not a certainty. See Baze , 553 U. S., at 50. Here, the State is attempting to use midazolam to produce an effect the drug has never previously been demonstrated to produce, and despite studies indicating that at some point increasing the dose will not actually increase the drug’s effect. The State is thus proceeding in the face of a very real risk that the drug will not work in the manner it claims. Moreover, and perhaps more importantly, the record provides good reason to think this risk is substantial. The Court insists that petitioners failed to provide “probative evidence” as to whether “midazolam’s ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain.” Ante , at 23. It emphasizes that Dr. Lubarsky was unable to say “at what dose the ceiling effect occurs,” and could only estimate that it was “ ‘[p]robably after about . . . 40 to 50 milligrams.’ ” Ante, at 23 (quoting App. 225). But the precise dose at which midazolam reaches its ceiling effect is irrelevant if there is no dose at which the drug can, in the Court’s words, render a person “insensate to pain.” Ante , at 23. On this critical point, Dr. Lubarsky was quite clear.[ 4 ] He explained that the drug “does not work to produce” a “lack of consciousness as noxious stimuli are applied,” and is “not sufficient to produce a surgical plane of anesthesia in human beings.” App. 204. He also noted that “[t]he drug would never be used and has never been used as a sole anesthetic to give anesthesia during a surgery,” id., at 223, and asserted that “the drug was not approved by the FDA as a sole anesthetic because after the use of fairly large doses that were sufficient to reach the ceiling effect and produce induction of unconsciousness, the patients responded to the surgery,” id. , at 219. Thus, Dr. Lubarsky may not have been able to identify whether this effect would be reached at 40, 50, or 60 milligrams or some higher threshold, but he could specifythat at no level would midazolam reliably keep an in-mate unconscious once the second and third drugs were delivered.[ 5 ] These assertions were amply supported by the evidence of the manner in which midazolam is and can be used. All three experts agreed that midazolam is utilized as the sole sedative only in minor procedures. Dr. Evans, for example, acknowledged that while midazolam may be used as the sole drug in some procedures that are not “terribly invasive,” even then “you would [generally] see it used in combination with a narcotic.” Id., at 307. And though, as the Court observes, Dr. Sasich believed midazolam could be “used for medical procedures like colonoscopies and gastroscopies,” ante , at 21, he insisted that these procedures were not necessarily painful, and that it would be a “big jump” to conclude that midazolam would be effective to maintain unconsciousness throughout an execution. Tr. 369–370. Indeed, the record provides no reason to think that these procedures cause excruciating pain remotely comparable to that produced by the second and third lethal injection drugs Oklahoma intends to use. As for more painful procedures, the consensus was also clear: Midazolam is not FDA-approved for, and is not used as, a sole drug to maintain unconsciousness. See App. 171 (Lubarsky), 262 (Sasich), 327 (Evans). One might infer from the fact that midazolam is not used as the sole anesthetic for more serious procedures that it cannot be used for them. But drawing such an inference is unnecessary, as petitioners’ experts invoked sources expressly stating as much. In particular, Dr. Lubarsky pointed to a survey article that cited four separate authorities and declared that “[m]idazolam cannot be used alone . . . to maintain adequate anesthesia.” Reves 318; see also Stoelting & Hillier 145 (explaining that midzolam is used for “induction of anesthesia,” and that, “ [i]n combination with other drugs , [it] may be used for maintenance of anesthesia” (emphasis added)). This evidence was alone sufficient, but if one wanted further support for these conclusions it was provided by the Lockett and Wood executions. The procedural flaws that marred the Lockett execution created the conditions for an unintended (and grotesque) experiment on midazolam’s efficacy. Due to problems with the IV line, Lockett was not fully paralyzed after the second and third drugs were administered. He had, however, been administered more than enough midazolam to “render an average person unconscious,” as the District Court found. App. 57. When Lockett awoke and began to writhe and speak, he demonstrated the critical difference between midazolam’s ability to render an inmate unconscious and its ability to maintain the inmate in that state. The Court insists that Lockett’s execution involved “only 100 milligrams of midazolam,” ante , at 28, but as explained previously, more is not necessarily better given midazolam’s ceiling effect. The Wood execution is perhaps even more probative. Despite being given over 750 milligrams of midazolam, Wood gasped and snorted for nearly two hours. These reactions were, according to Dr. Lubarsky, inconsistent with Wood being fully anesthetized, App. 177–178, and belie the claim that a lesser dose of 500 milligrams would somehow suffice. The Court attempts to distinguish the Wood execution on the ground that the timing of Arizona’s administration of midazolam was different. Ante , at 28. But as Dr. Lubarsky testified, it did not “matter” whether in Wood’s execution the “midazolam was introduced all at once or over . . . multiple doses,” because “[t]he drug has a sufficient half life that the effect is cumulative.” App. 220; see also Saari 253 (midazolam’s “elimination half-life ranges from 1.7 to 3.5 h[ours]”).[ 6 ] Nor does the fact that Wood’s dose of midazolam was paired with hydromorphone rather than a paralytic and potassium chromide, see ante, at 29, appear to have any relevance—other than that the use of this analgesic drug may have meant that Wood did not experience the same degree of searing pain that an inmate executed under Oklahoma’s protocol may face. By contrast, Florida’s use of this same three-drug protocol in 11 executions, see ante, at 28 (citing Brief for State of Florida as Amicus Curiae 1), tells us virtually nothing. Although these executions have featured no obvious mishaps, the key word is “obvious.” Because the protocol involves the administration of a powerful paralytic, it is, as Drs. Sasich and Lubarsky explained, impossible to tell whether the condemned inmate in fact remained unconscious. App. 218, 273; see also Baze , 553 U. S., at 71 (Stevens, J., concurring in judgment). Even in these executions, moreover, there have been indications of the inmates’ possible awareness. See Brief for State of Alabama et al. as Amici Curiae 9–13 (describing the 11 Flor-ida executions, and noting that some allegedly involved blinking and other movement after administration of the three drugs).[ 7 ] Finally, none of the State’s “safeguards” for administering these drugs would seem to mitigate the substantial risk that midazolam will not work, as the Court contends. See ante, at 21–22. Protections ensuring that officials have properly secured a viable IV site will not enable midazolam to have an effect that it is chemically incapable of having. Nor is there any indication that the State’s monitoring of the inmate’s consciousness will be able to anticipate whether the inmate will remain unconscious while the second and third drugs are administered. No one questions whether midazolam can induce unconsciousness. The problem, as Lockett’s execution vividly illustrates, is that an unconscious inmate may be awakened by the pain and respiratory distress caused by administration of the second and third drugs. At that point, even if it were possible to determine whether the inmate is conscious—dubious, given the use of a paralytic—it is already too late. Presumably for these reasons, the Tenth Circuit characterized the District Court’s reliance on these procedural mechanisms as “not relevant to its rejection of [petitioners’] claims regarding the inherent characteristics of midazolam.” Warner , 776 F. 3d, at 733. C The Court not only disregards this record evidence of midazolam’s inadequacy, but also fails to fully appreciate the procedural posture in which this case arises. Petitioners have not been accorded a full hearing on the merits of their claim. They were granted only an abbreviated evidentiary proceeding that began less than three months after the State issued its amended execution protocol; they did not even have the opportunity to present rebuttal evidence after Dr. Evans testified. They sought a preliminary injunction, and thus were not required to prove their claim, but only to show that they were likely to succeed on the merits. See Winter v. Natural Resources Defense Council, Inc. , 555 U. S. 7, 20 (2008) ; Hill v. McDonough , 547 U. S. 573, 584 (2006) . Perhaps the State could prevail after a full hearing, though this would require more than Dr. Evans’ unsupported testimony. At the preliminary injunction stage, however, petitioners presented compelling evidence suggesting that midazolam will not work as the State intends. The State, by contrast, offered absolutely no contrary evidence worth crediting. Petitioners are thus at the very least likely to prove that, due to midazolam’s inherent deficiencies, there is a constitutionally intolerable risk that they will be awake, yet unable to move, while chemicals known to cause “excruciating pain” course through their veins. Baze , 553 U. S., at 71 (Stevens, J., concurring in judgment). III The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is factually wrong. The Court’s conclusion that petitioners’ challenge also fails because they identified no available alternative means by which the State may kill them is legally indefensible. A This Court has long recognized that certain methods of execution are categorically off-limits. The Court first confronted an Eighth Amendment challenge to a method of execution in Wilkerson v. Utah , 99 U. S. 130 (1879) . Although Wilkerson approved the particular method at issue—the firing squad—it made clear that “public dissection,” “burning alive,” and other “punishments of torture . . . in the same line of unnecessary cruelty, are forbidden by [the Eighth A]mendment to the Constitution.” Id. , at 135–136. Eleven years later, in rejecting a challenge to the first proposed use of the electric chair, the Court again reiterated that “if the punishment prescribed for an offense against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.” In re Kemmler , 136 U. S. 436, 446 (1890) . In the more than a century since, the Members of this Court have often had cause to debate the full scope of the Eighth Amendment’s prohibition of cruel and unusual punishment. See, e.g., Furman v. Georgia , 408 U. S. 238 (1972) . But there has been little dispute that it at the very least precludes the imposition of “barbarous physical punishments.” Rhodes v. Chapman , 452 U. S. 337, 345 (1981) ; see, e.g. , Solem v. Helm , 463 U. S. 277, 284 (1983) ; id. , at 312–313 (Burger, C. J., dissenting); Baze , 553 U. S., at 97–99 (Thomas, J., concurring in judgment); Harmelin v. Michigan , 501 U. S. 957, 976 (1991) (opinion of Scalia, J.). Nor has there been any question that the Amendment prohibits such “inherently barbaric punishments under all circumstances .” Graham v. Florida , 560 U. S. 48 (2010) (emphasis added). Simply stated, the “ Eighth Amendment categorically prohibits the infliction of cruel and unusual punishments.” Penry v. Lynaugh , 492 U. S. 302, 330 (1989) (emphasis added). B The Court today, however, would convert this categorical prohibition into a conditional one. A method of execution that is intolerably painful—even to the point of being the chemical equivalent of burning alive—will, the Court holds, be unconstitutional if , and only if, there is a “known and available alternative” method of execution. Ante, at 15. It deems Baze to foreclose any argument to the contrary. Ante, at 14. Baze held no such thing. In the first place, the Court cites only the plurality opinion in Baze as support for its known-and-available-alternative requirement. See ibid. Even assuming that the Baze plurality set forth such a requirement—which it did not—none of the Members of the Court whose concurrences were necessary to sustain the Baze Court’s judgment articulated a similar view. See 553 U. S., at 71–77, 87 (Stevens, J., concurring in judgment); id. , at 94, 99–107 (Thomas, J., concurring in judgment); id., at 107–108, 113 (Breyer, J., concurring in judgment). In general, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States , 430 U. S. 188, 193 (1977) (internal quotation marks omitted). And as the Court observes, ante , at 14, n. 2, the opinion of Justice Thomas, joined by Justice Scalia, took the broadest position with respect to the degree of intent that state officials must have inorder to have violated the Eighth Amendment, concluding that only a method of execution deliberately designedto inflict pain, and not one simply designed with deliberate indifference to the risk of severe pain, would be un-constitutional. 553 U. S., at 94 (Thomas, J., concurringin judgment). But this understanding of the Eighth Amendment’s intent requirement is unrelated to, and thus not any broader or narrower than, the requirement the Court now divines from Baze . Because the position that a plaintiff challenging a method of execution under the Eighth Amendment must prove the availability of an alternative means of execution did not “represent the views of a majority of the Court,” it was not the holding of the Baze Court. CTS Corp. v. Dynamics Corp. of America , 481 U. S. 69, 81 (1987) . In any event, even the Baze plurality opinion provides no support for the Court’s proposition. To be sure, that opinion contains the following sentence: “[The condemned] must show that the risk is substantial when compared to the known and available alternatives.” 553 U. S., at 61. But the meaning of that key sentence and the limits of the requirement it imposed are made clear by the sentence directly preceding it: “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.” Ibid. (emphasis added). In Baze , the very premise of the petitioners’ Eighth Amendment claim was that they had “identified a significant risk of harm [in Kentucky’s protocol] that [could] be eliminated by adopting alternative procedures.” Id. , at 51. Their basic theory was that even if the risk of pain was only, say, 25%, that risk would be objectively intolerable if there was an obvious alternative that would reduce the risk to 5%. See Brief for Petitioners in Baze v. Rees , O. T. 2007, No. 07–5439, p. 29 (“In view of the severity of the pain risked and the ease with which it could be avoided, Petitioners should not have been required to show a high likelihood that they would suffer such pain . . . ”). Thus, the “grounds . . . asserted” for relief in Baze were that the State’s protocol was intolerably risky given the alternative procedures the State could have employed. Addressing this claim, the Baze plurality clarified that “a condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative,” 553 U. S., at 51; instead, to succeed in a challenge of this type, the comparative risk must be “substantial,” id. , at 61. Nowhere did the plurality suggest that all challenges to a State’s method of execution would require this sort of comparative-risk analysis. Recognizing the relevance of available alternatives is not at all the same as concluding that their absence precludes a claimant from showing that a chosen method carries objectively intolerable risks. If, for example, prison officials chose a method of execution that has a 99% chance of causing lingering and excruciating pain, certainly that risk would be objectively intolerable whether or not the officials ignored other methods in making this choice. Irrespective of the existence of alternatives, there are some risks “so grave that it violates contemporary standards of decency to expose anyone unwillingly to” them. Helling v. McKinney , 509 U. S. 25, 36 (1993) (emphasis in original). That the Baze plurality’s statement regarding a condemned inmate’s ability to point to an available alternative means of execution pertained only to challenges premised on the existence of such alternatives is further evidenced by the opinion’s failure to distinguish or even mention the Court’s unanimous decision in Hill v. McDonough , 547 U. S. 573 . Hill held that a §1983 plaintiff challenging a State’s method of execution need not “identif[y] an alternative, authorized method of execution.” Id. , at 582. True, as the Court notes, ante , at 14–15, Hill did so in the context of addressing §1983’s pleading standard, rejecting the proposed alternative-means requirement because the Court saw no basis for the “[i]mposition of heightened pleading requirements.” 547 U. S., at 582. But that only confirms that the Court in Hill did not view the availability of an alternative means of execution as an element of an Eighth Amendment claim: If it had, then requiring the plaintiff to plead this element would not have meant imposing a heightened standard at all, but rather would have been entirely consistent with “traditional pleading requirements.” Ibid. ; see Ashcroft v. Iqbal , 556 U. S. 662, 678 (2009) . The Baze plurality opinion should not be understood to have so carelessly tossed aside Hill ’s underlying premise less than two years later. C In reengineering Baze to support its newfound rule, the Court appears to rely on a flawed syllogism. If the death penalty is constitutional, the Court reasons, then there must be a means of accomplishing it, and thus some available method of execution must be constitutional. See ante , at 4, 15–16. But even accepting that the death penalty is, in the abstract, consistent with evolving standards of decency, but see ante , p. ___ (Breyer, J., dissenting), the Court’s conclusion does not follow. The constitutionality of the death penalty may inform our conception of the degree of pain that would render a particular method of imposing it unconstitutional. See Baze , 553 U. S., at 47 (plurality opinion) (because “[s]ome risk of pain is inherent in any method of execution,” “[i]t is clear . . . the Constitution does not demand the avoidance of all risk of pain”). But a method of execution that is “barbarous,” Rhodes , 452 U. S., at 345, or “involve[s] torture or a lingering death,” Kemmler , 136 U. S., at 447, does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. If a State wishes to carry out an execution, it must do so subject to the constraints that our Constitution imposes on it, including the obligation to ensure that its chosen method is not cruel and unusual. Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death. For these reasons, the Court’s available-alternative requirement leads to patently absurd consequences. Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equivalent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated. But see Baze , 553 U. S., at 101–102 (Thomas, J., concurring in judgment) (“It strains credulity to suggest that the defining characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like was that they involved risks of pain that could be eliminated by using alternative methods of execution”).[ 8 ] The Eighth Amendment cannot possibly countenance such a result. D In concocting this additional requirement, the Court is motivated by a desire to preserve States’ ability to conduct executions in the face of changing circumstances. See ante, at 4–6, 27–28. It is true, as the Court details, that States have faced “practical obstacle[s]” to obtaining lethal injection drugs since Baze was decided. Ante , at 4. One study concluded that recent years have seen States change their protocols “with a frequency that is unprecedented among execution methods in this country’s history.” Denno, Lethal Injection Chaos Post- Baze , 102 Geo. L. J. 1331, 1335 (2014). But why such developments compel the Court’s imposition of further burdens on those facing execution is a mystery. Petitioners here had no part in creating the shortage of execution drugs; it is odd to punish them for the actions of pharmaceutical companies and others who seek to disassociate themselves from the death penalty—actions which are, of course, wholly lawful. Nor, certainly, should these rapidly changing circumstances give us any greater confidence that the execution methods ultimately selected will be sufficiently humane to satisfy the Eighth Amendment. Quite the contrary. The execution protocols States hurriedly devise as they scramble to locate new and untested drugs, see supra, at 3, are all the more likely to be cruel and unusual—presumably, these drugs would have been the States’ first choice were they in fact more effective. But see Denno, The Lethal Injection Quandry: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 65–79 (2007) (describing the hurried and unreasoned process by which States first adopted the original three-drug protocol). Courts’ review of execution methods should be more, not less, searching when States are engaged in what is in effect human experimentation. It is also worth noting that some condemned inmates may read the Court’s surreal requirement that they iden-tify the means of their death as an invitation to propose methods of executions less consistent with modern sensibilities. Petitioners here failed to meet the Court’s new test because of their assumption that the alternative drugs to which they pointed, pentobarbital and sodium thiopental, were available to the State. See ante, at 13–14. This was perhaps a reasonable assumption, especially given that neighboring Texas and Missouri still to this day continue to use pentobarbital in executions. See The Death Penalty Institute, Execution List 2015, online at www.deathpenaltyinfo.org/execution-list-2015 (as visited June 26, 2015, and available in the Clerk of the Court’s case file). In the future, however, condemned inmates might well decline to accept States’ current reliance on lethal injection. In particular, some inmates may suggest the firing squad as an alternative. Since the 1920’s, only Utah has utilized this method of execution. See S. Banner, The Death Penalty 203 (2002); Johnson, Double Murderer Executed by Firing Squad in Utah, N. Y. Times, June 19, 2010, p. A12. But there is evidence to suggest that the firing squad is significantly more reliable than other methods, including lethal injection using the various combinations of drugs thus far developed. 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). Just as important, there is some reason to think that it is relatively quick and painless. See Banner, supra , at 203. Certainly, use of the firing squad could be seen as a devolution to a more primitive era. See Wood v. Ryan , 759 F. 3d 1076, 1103 (CA9 2014) (Kozinski, C. J., dissenting from denial of rehearing en banc). That is not to say, of course, that it would therefore be unconstitutional. But lethal injection represents just the latest iteration of the States’ centuries-long search for “neat and non-disfiguring homicidal methods.” C. Brandon, The Electric Chair: An Unnatural American History 39 (1999) (quoting Editorial, New York Herald, Aug. 10, 1884); see generally Banner, supra , at 169–207. A return to the firing squad—and the blood and physical violence that comes with it—is a step in the opposite direction. And some might argue that the visible brutality of such a death could conceivably give rise to its own Eighth Amendment concerns. See Campbell v. Wood , 511 U. S. 1119 –1123 (1994) (Blackmun, J., dissenting from denial of stay of execution and certiorari); Glass v. Louisiana , 471 U. S. 1080, 1085 (1985) (Brennan, J., dissenting from denial of certiorari). At least from a condemned inmate’s perspective, however, such visible yet relatively painless violence may be vastly preferable to an excruciatingly painful death hidden behind a veneer of medication. The States may well be reluctant to pull back the curtain for fear of how the rest of us might react to what we see. But we deserve to know the price of our collective comfort before we blindly allow a State to make condemned inmates pay it in our names. *  *  * “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons , 543 U. S. 551, 560 (2005) . Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his or her own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price. I dissent. Notes 1 Hydromorphone is a powerful analgesic similar to morphine or heroin. See R. Stoelting & S. Hillier, Pharmacology & Physiology in Anesthetic Practice 87–88 (4th ed. 2006) (Stoelting & Hillier). 2 The Court disputes this characterization of Dr. Evans’ testimony, insisting that Dr. Evans accurately described midazolam’s properties in the written report he submitted prior to the hearing below, and suggesting that petitioners’ experts would have “dispute[d] the accuracy” of this explanation were it in fact wrong. Ante, at 25. But Dr. Evans’ written report simply said midazolam “produces different levels of central nervous system (CNS) depression through binding to [GABA] receptors.” App. 293. That much is true. Only after Drs. Sasich and Lubarsky testified did Dr. Evans further claim that midazolam produced CNS depression by binding to GABA receptors and thereby preventing GABA itself from binding to those receptors —which is where he went wrong. The Court’s further observation that Dr. Lubarsky also used a variant on the word “inhibiting” in his testimony—in saying that GABA’s “ ‘ inhibition of brain activity is accentuated by midazolam,’ ” ante , at 25 (quoting App. 232)—is completely nonresponsive. “Inhibiting” is a perfectly good word; the problem here is the manner in which Dr. Evans used it in a sentence. 3 For all the reasons discussed in Part II–B, infra , and contrary to the Court’s claim, see ante , at 20, n. 4, there are good reasons to doubt that 500 milligrams of midazolam will, in light of the ceiling effect, inevitably kill someone. The closest the record comes to providing support for this contention is the fleeting mention in the FDA-approved product label that one of the possible consequences of midazolam overdosage is coma. See ante, at 21, n. 5. Moreover, even if this amount of the drug could kill some people in “under an hour,” ante, at 20, n. 4, that would not necessarily mean that the condemned would be insensate during the approximately 10 minutes it takes for the paralytic and potassium chloride to do their work. 4 Dr. Sasich, as the Court emphasizes, was perhaps more hesitant to reach definitive conclusions, see ante , at 19–21, and n. 5, 23–24, but the statements highlighted by the Court largely reflect his (truthful) observations that no testing has been done at doses of 500 milligrams, and his inability to pinpoint the precise dose at which midazolam's ceiling effect might be reached. Dr. Sasich did not, as the Court suggests, claim that midazolam’s ceiling effect would be reached only after a person became fully insensate to pain. Ante , at 24. What Dr. Sasich actually said was: “As the dose increases, the benzodiazepines are expected to produce sedation, amnesia, and finally lack of response to stimuli such as pain (unconsciousness).” App. 243. In context, it is clear that Dr. Sasich was simply explaining that a drug like midazolam can be used to induce unconsciousness—an issue that was and remains undisputed—not that it could render an inmate sufficiently unconscious to resist all noxious stimuli. Indeed, it was midazolam’s possible inability to serve the latter function that led Dr. Sasich to conclude that “it is not an appropriate drug to use when administering a paralytic followed by potassium chloride.” Id., at 248. 5 The Court claims that the District Court could have properly disregarded Dr. Lubarsky’s testimony because he asserted that a protocol with sodium thiopental would “ ‘produce egregious harm and suffering.’ ” Ante , at 24, n. 6 (quoting App. 227). But Dr. Lubarsky did not testify that, like midazolam, sodium thiopental would not render an inmate fully insensate even if properly administered; rather, he simply observed that he had previously contended that protocols using that drug were ineffective. See App. 227. He was presumably referring to an article he coauthored that found many condemned inmates were not being successfully delivered the dose of sodium thiopental necessary to fully anesthetize them. See Baze , 553 U. S., at 67 (Alito, J., concurring) (discussing this study). 6 The Court asserts that the State refuted these contentions, pointing to Dr. Evans’ testimony that 750 milligrams of the drug “might not have the effect that was sought” if administered over an hour. Tr. 667; see ante, at 28, n. 6. But as has been the theme here, this pronouncement was entirely unsupported, and appears to be contradicted by the secondary sources cited by petitioners’ experts. 7 The fact that courts in Florida have approved the use of midazolam in this fashion is arguably slightly more relevant, though it is worth noting that the majority of these decisions were handed down before the Lockett and Wood executions, and that some relied, as here, on Dr. Evans’ testimony. See ante , at 17. 8 The Court protests that its holding does not extend so far, deriding this description of the logical implications of its legal rule as “simply not true” and “outlandish rhetoric.” Ante , at 29. But presumably when the Court imposes a “requirement o[n] all Eighth Amendment method-of-execution claims,” that requirement in fact applies to “ all ” methods of execution, without exception. Ante, at 1 (emphasis added).

The Supreme Court ruled that death row prisoners in Oklahoma failed to prove that the state's lethal injection protocol, which uses midazolam as the first drug, violates the Eighth Amendment by causing severe pain. The Court affirmed the lower courts' findings that the prisoners did not identify an available alternative method of execution with a lesser risk of pain and that midazolam does not pose a substantial risk of severe pain when used in high doses.