Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/50

12 the use of nitrogen hypoxia, which is a form of execution by lethal gas. Missouri law permits the use of this method of execution. See Mo. Rev. Stat. §546.720 (2002). Three other States—Alabama, Mississippi, and Oklahoma—have specifically authorized nitrogen hypoxia as a method of execution. See ante, at 22, n. 1. And Bucklew introduced into the record reports from Oklahoma and Louisiana indicating that nitrogen hypoxia would be simple and painless. These reports summarized the scientific literature as indicating that there is “no reported physical discom[fort] associated with inhaling pure nitrogen,” App. 742, that the “onset of hypoxia is typically so subtle that it is unnoticeable to the subject,” id., at 745, and that nitrogen hypoxia would take an estimated “seventeen-to-twenty seconds” to render a subject unconscious, id., at 746–747. The Oklahoma study concluded that nitrogen hypoxia is “the most humane method” of execution available. Id., at 736. And the Louisiana study stated that the “[u]se of nitrogen as a method of execution can assure a quick and painless death of the offender.” Id., at 746.

How then can the majority conclude that Bucklew has failed to identify an alternative method of execution? The majority finds Bucklew’s evidence inadequate in part because, in the majority’s view, it does not show that nitrogen hypoxia will “significantly reduce” Bucklew’s risk of pain as compared with lethal injection. Ante, at 23. But the majority does not dispute the evidence suggesting that nitrogen hypoxia would be “quick and painless” and would take effect in 20 to 30 seconds. The majority instead believes that “nothing in the record” suggests that lethal injection would take longer than nitrogen gas to take effect. Ante, at 26. As I have already explained, the majority reaches this conclusion by overlooking considerable evidence to the contrary—such as Dr. Zivot’s testimony that Bucklew’s pain would likely prove “prolonged,” App.