Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/6

Rh out using three drugs: sodium thiopental, pancuronium bromide, and potassium chloride. And by that time, too, various inmates were in the process of challenging the constitutionality of the State’s protocol and others like it around the country. See Taylor v. Crawford, 457 F. 3d 902 (CA8 2006); Note, A New Test for Evaluating Eighth Amendment Challenges to Lethal Injections, 120 Harv. L. Rev. 1301, 1304 (2007) (describing flood of lethal injection lawsuits around 2006 that “severely constrained states’ ability to carry out executions”); Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 102–116 (2007).

Ultimately, this Court answered these legal challenges in Baze v. Rees, 553 U. S. 35 (2008). Addressing Kentucky’s similar three-drug protocol,, joined by and Justice Kennedy, concluded that a State’s refusal to alter its lethal injection protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Id., at 52. , joined by Justice Scalia, thought the protocol passed muster because it was not intended “to add elements of terror, pain, or disgrace to the death penalty.” Id., at 107. reached the same result because he saw no evidence that the protocol created “a significant risk of unnecessary suffering.” Id., at 113. And though Justice Stevens objected to the continued use of the death penalty, he agreed that petitioners’ evidence was insufficient. Id., at 87. After this Court decided Baze, it denied review in a case seeking to challenge Missouri’s similar lethal injection protocol. Taylor v. Crawford, 487 F. 3d 1072 (2007), cert. denied, 553 U. S. 1004 (2008).

But that still was not the end of it. Next, Mr. Bucklew and other inmates unsuccessfully challenged Missouri’s protocol in state court, alleging that it had been adopted in