Henness v. DeWine ( 2020 )

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