November 6, 2018
TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
Baze v. Rees, 553 U.S. 35, a plurality of this Court
concluded that a State's refusal to alter its execution
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. A
majority of the Court subsequently held Baze's
plurality opinion to be controlling. See Glossip v.
Gross, 576 U.S.___.
Russell Bucklew was convicted of murder and sentenced to
death. The State of Missouri plans to execute him by lethal
injection using a single drug, pentobarbital. Mr. Bucklew
presented an as-applied Eighth Amendment challenge to the
State's lethal injection protocol, alleging that,
regardless whether it would cause excruciating pain for
all prisoners, it would cause him severe
pain because of his particular medical condition.
District Court dismissed his challenge. The Eighth Circuit,
applying the Baze-Glossip test, remanded the case to
allow Mr. Bucklew to identify a feasible, readily implemented
alternative procedure that would significantly reduce his
alleged risk of pain. Eventually, Mr. Bucklew identified
nitrogen hypoxia, but the District Court found the proposal
lacking and granted the State's motion for summary
judgment. The Eighth Circuit affirmed.
I. Baze and Glossip govern all Eighth
Amendment challenges, whether facial or as-applied, alleging
that a method of execution inflicts unconstitutionally cruel
pain. Pp. 8-20.
(a) The Eighth Amendment forbids "cruel and
unusual" methods of capital punishment but does not
guarantee a prisoner a painless death. See Glossip,
576 U.S., at ___. As originally understood, the Eighth
Amendment tolerated methods of execution, like hanging, that
involved a significant risk of pain, while forbidding as
cruel only those methods that intensified the death sentence
by "superadding" terror, pain, or disgrace. To
establish that a State's chosen method cruelly
"superadds" pain to the death sentence, a prisoner
must show a feasible and readily implemented alternative
method that would significantly reduce a substantial risk of
severe pain and that the State has refused to adopt without a
legitimate penological reason. Baze, 553 U.S., at
52; Glossip, 576 U.S., at ___. And Glossip
left no doubt that this standard governs "all Eighth
Amendment method-of- execution claims." Id., at
___. Baze and Glossip recognized that 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." Baze, 553 U.S., at 51-52. Nor do
they suggest that traditionally accepted methods of execution
are necessarily rendered unconstitutional as soon as an
arguably more humane method becomes available. Pp. 8-14.
(b) Precedent forecloses Mr. Bucklew's argument that
methods posing a "substantial and particular risk of
grave suffering" when applied to a particular inmate due
to his "unique medical condition" should be
considered "categorically" cruel. Because
distinguishing between constitutionally permissible and
impermissible degrees of pain is a necessarily
comparative exercise, the Court held in Glossip,
identifying an available alternative is "a requirement
of all Eighth Amendment method-of-execution claims"
alleging cruel pain. 576 U.S., at ___. Mr. Bucklew's
argument is also inconsistent with the original and
historical understanding of the Eighth Amendment on which
Baze and Glossip rest: 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 an abstract exercise in
"categorical" classification. The substantive
meaning of the Eighth Amendment does not change depending on
how broad a remedy the plaintiff chooses to seek. Mr.
Bucklew's solution also invites pleading games, and there
is little likelihood that an inmate facing a serious risk of
pain will be unable to identify an available alternative. Pp.
2. Mr. Bucklew has failed to satisfy the BazeGlossip
test. Pp. 20-28.
(a) He fails 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 ___ ___ 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. Mr. Bucklew's proposal falls well
short of that standard. He presented no evidence on numerous
questions essential to implementing his preferred method;
instead, he merely pointed to reports from correctional
authorities in other States indicating the need for
additional study to develop a nitrogen hypoxia protocol.
Second, the State had a "legitimate" reason for
declining to switch from its current method of execution as a
matter of law, Haze, 553 U.S., at 52, namely,
choosing not to be the first to experiment with a new,
"untried and untested" method of execution.
Id., at 41. Pp. 20-22.
(b) Even if nitrogen hypoxia were a viable alternative,
neither of Mr. Bucklew's theories shows that nitrogen
hypoxia would significantly reduce a substantial risk of
severe pain. First, his contention that the State may use
painful procedures to administer the lethal injection,
including forcing him to he flat on his back (which he claims
could impair his breathing even before the pentobarbital is
administered), rests on speculation unsupported, if not
affirmatively contradicted, by the record. And to the extent
the record is unclear, he had ample opportunity to conduct
discovery and develop a factual record concerning the
State's planned procedures. Second, Mr. Bucklew contends
that while either method will cause him to experience
feelings of suffocation for some period of time before he is
rendered fully unconscious, the duration of that period will
be shorter with nitrogen than with pentobarbital. But nothing
in the record suggests that he will be capable of
experiencing pain for significantly more time after receiving
pentobarbital than he would after receiving nitrogen. His
claim to the contrary rested on his expert's testimony
regarding a study of euthanasia in horses that everyone now
agrees the expert misunderstood or misremembered. Pp. 23-28.
883 F.3d 1087, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and THOMAS, Alito, and Kavanaugh, JJ.,
joined. THOMAS, J., and KAVANAUGH, J., filed concurring
opinions. BREYER, J., filed a dissenting opinion, in which
GlNSBURG, SOTOMAYOR, and KAGAN, JJ., joined as to all but
Part III. SOTOMAYOR, J., filed a dissenting opinion.
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.
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.
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
postconviction 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).
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 postconviction 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).
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).
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 preempted 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. demons v.
Crawford, 585 F.3d 1119 (CA8 2009), cert, denied, 561
U.S. 1026 (2010).
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.
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
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).
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).
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.
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 testimony, 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.
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
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).
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.
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 penalty, 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, 1 Stat. 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.
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."
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
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).
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).
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
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).
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
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).
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
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.
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