Page:Glossip v. Gross.pdf/124

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GLOSSIP v. GROSS SOTOMAYOR, J., dissenting

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 Constitu­ tion 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 equiva­ lent 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 availabil­ ity 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 defin­ ing 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 —————— 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 methodof-execution claims,” that requirement in fact applies to “all” methods of execution, without exception. Ante, at 1 (emphasis added).