These researchers noted that because the blood samples were taken “several hours to days after” the inmates’ deaths, the postmortem concentrations of thiopental—a lipophilic drug that diffuses from blood into tissue—could not be relied on as accurate indicators for concentrations in the blood stream during life. Kentucky’s protocol does not include an automatic pause in the “rapid flow” of the drugs, id., at 978, or any of the most basic tests to determine whether the sodium thiopental has worked. Id., at 463, 464 (plurality opinion); id., at 471 (Frankfurter, J., concurring); see also Furman v. Georgia, 408 U. S. 238, 326–327 (1972) (Marshall, J., concurring) (describing Resweber as holding “that the legislature adopted electrocution for a humane purpose, and that its will should not be thwarted because, in its desire to reduce pain and suffering in most cases, it may have inadvertently increased suffering in one particular case”). 9–10. Thus, in Kansas v. Marsh, 548 U. S. 163 (2006), the Court upheld a state statute that requires imposition of the death penalty when the jury finds that the aggravating and mitigating factors are in equipoise. 1099 (May 2, 2005). For reasons Justice Alito details, see ante, at 2–4, physicians have no similar role in American executions. 448 (2008). In light of this consistent understanding of the Cruel and Unusual Punishments Clause as forbidding purposely torturous punishments, it is not surprising that even an ardent abolitionist was constrained to acknowledge in 1977 that “[a]n unbroken line of interpreters has held that it was the original understanding and intent of the framers of the Eighth Amendment … to proscribe as ‘cruel and unusual’ only such modes of execution as compound the simple infliction of death with added cruelties or indignities.” H. Bedau, The Courts, the Constitution, and Capital Punishment 35. [Footnote 4]. This is a woefully inadequate justification. 2006), and neither Morales nor any other prisoner in California has since been executed, see Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. 669, 680 (2001). 63. The accuracy of that testimony is not universally accepted. " See Gregg, 428 U. S., at 184, n. 30. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of pain—“superadd[ing]” pain to the death sentence through torture and the like. After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court for the Commonwealth of Kentucky, seeking to have Kentucky’s lethal injection protocol declared unconstitutional. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure,” id., at 470—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. 43.14 (Vernon 2006 Supp. That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. to unconscious.” 4 Tr. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. For example, one survivor of the Oklahoma City bombing expressed a belief that “ ‘death by [lethal] injection [was] “too good” for McVeigh.’ ” A. Sarat, When the State kills: Capital Punishment and the American Condition 64 (2001). By the middle of the 19th century, “hanging was the ‘nearly universal form of execution’ in the United States.” Campbell v. Wood, 511 U. S. 1119 (1994) (Blackmun, J., dissenting from denial of certiorari) (quoting State v. Frampton, 95 Wash. 2d 469, 492, 627 P. 2d 922, 934 (1981)); Denno, Getting to Death: Are Executions Constitutional? AMA, Code of Medical Ethics, Policy E–2.06 Capital (January 2020), Justices to Enter the Debate Over Lethal Injection, Supreme Court clears way for executions to resume, Lethal injection moratorium inches closer, "High court upholds lethal injection method", http://www.scotusblog.com/wp-content/uploads/2008/04/07-5439.pdf, https://www.law.cornell.edu/supct/html/07-5439.ZC1.html, http://www.law.berkeley.edu/files/43-3_Semel.pdf, "Justice Scalia, with whom Justice Thomas joins, concurring in the judgment", Audio: complete recording of oral arguments before the court, United States Supreme Court cases of the Roberts Court, Cruel and Unusual Punishment Clause and death penalty case law.
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