Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/2

2 death. See Glossip, 576 U. S., at ___. As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. Baze, 553 U. S., at 52; Glossip, 576 U. S., at ___. And Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” Id., at ___. Baze and Glossip recognized that the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining ‘best practices’ for executions.” Baze, 553 U. S., at 51–52. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available. Pp. 8–14.

Precedent forecloses Mr. Bucklew’s argument that methods posing a “substantial and particular risk of grave suffering” when applied to a particular inmate due to his “unique medical condition” should be considered “categorically” cruel. Because distinguishing between constitutionally permissible and impermissible degrees of pain is a necessarily comparative exercise, the Court held in Glossip, identifying an available alternative is “a requirement of all Eighth Amendment method-of-execution claims” alleging cruel pain. 576 U. S., at ___. Mr. Bucklew’s argument is also inconsistent with the original and historical understanding of the Eighth Amendment on which Baze and Glossip rest: When it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment superadds pain well beyond what’s needed to effectuate a death sentence. And answering that question has always involved a comparison with available alternatives, not an abstract exercise in “categorical” classification. The substantive meaning of the Eighth Amendment does not change depending on how broad a remedy the plaintiff chooses to seek. Mr. Bucklew’s solution also invites pleading games, and there is little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative. Pp. 14–20.

2. Mr. Bucklew has failed to satisfy the Baze–Glossip test. Pp. 20–28.

(a) He fails for two independent reasons to present a triable question on the viability of nitrogen hypoxia as an alternative to the