Page:Glossip v. Gross.pdf/97

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

1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES _________________

No. 14–7955 _________________

RICHARD E. GLOSSIP, ET AL., PETITIONERS v.

KEVIN J. GROSS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 29, 2015]

JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join, dissenting. Petitioners, three inmates on Oklahoma’s death row, challenge the constitutionality of the State’s lethal injec­ tion protocol. The State plans to execute petitioners using three drugs: midazolam, rocuronium bromide, and potas­ sium chloride. The latter two drugs are intended to para­ lyze the inmate and stop his heart. But they do so in a torturous manner, causing burning, searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious. Petitioners claim that midazolam cannot be expected to perform that function, and they have presented ample evidence showing that the State’s planned use of this drug poses substantial, constitutionally intolerable risks. Nevertheless, the Court today turns aside petitioners’ plea that they at least be allowed a stay of execution while they seek to prove midazolam’s inadequacy. The Court achieves this result in two ways: first, by deferring to the District Court’s decision to credit the scientifically unsup­ ported and implausible testimony of a single expert wit­ ness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the avail­ ability of an alternative means for their own executions.