Page:Glossip v. Gross.pdf/117

 Cite as: 576 U. S. ____ (2015)

21

SOTOMAYOR, J., dissenting

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 uncon­ scious. 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 Ala­ bama et al. as Amici Curiae 9–13 (describing the 11 Florida 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 administer­ ing 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 uncon­ sciousness. The problem, as Lockett’s execution vividly illustrates, is that an unconscious inmate may be awak­ ened by the pain and respiratory distress caused by ad­ ministration 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 —————— 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.