Page:Glossip v. Gross.pdf/125

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

29

SOTOMAYOR, J., dissenting

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 imposi­ tion 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 sensi­ bilities. Petitioners here failed to meet the Court’s new