Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/47

Rh Id., at ___ (slip op., at 16). And the Court feared that allowing prisoners to invalidate a State’s method of execution without identifying an alternative would “effectively overrule these decisions.” Ibid. But there is no such risk here. Holding Missouri’s lethal injection protocol unconstitutional as applied to Bucklew—who has a condition that has been identified in only five people, see supra, at 2–3—would not risk invalidating the death penalty in Missouri. And, because the State would remain free to execute prisoners by other permissible means, declining to extend Glossip’s “alternative method” requirement in this context would be unlikely to exempt Bucklew or any other prisoner from the death penalty. Even in the unlikely event that the State could not identify a permissible alternative in a particular case, it would be perverse to treat that as a reason to execute a prisoner by the method he has shown to involve excessive suffering.

The Glossip Court, in adopting the “alternative method” requirement, relied on ’s plurality opinion in Baze, which discussed the need to avoid “intrud[ing] on the role of state legislatures in implementing their execution procedures.” 553 U. S., at 51; see also ante, at 13 (we owe “a measure of deference to a State’s choice of execution procedures” (internal quotation marks omitted)). But no such intrusion problem exists in a case like this one. When adopting a method of execution, a state legislature will rarely consider the method’s application to an individual who, like Bucklew, suffers from a rare disease. It is impossible to believe that Missouri’s legislature, when adopting lethal injection, considered the possibility that it would cause prisoners to choke on their own blood for up to several minutes before they die. Exempting a prisoner from the State’s chosen method of execution in these circumstances does not interfere with any legislative judgment.

The Court in Glossip may have also believed that the