Wednesday, 16 April 2008

JUSTICE BREYER, concurring in the judgment.

Cite as: 553 U. S. ____ (2008) 1
BREYER, J., concurring in judgment
No. 07–5439


[April 16, 2008]

JUSTICE BREYER, concurring in the judgment.
Assuming the lawfulness of the death penalty itself,
petitioners argue that Kentucky’s method of execution,
lethal injection, nonetheless constitutes a constitutionallyforbidden, “cruel and usual punishmen[t].” U. S. Const.,
Amdt. 8. In respect to how a court should review such a
claim, I agree with JUSTICE GINSBURG. She highlights the
relevant question, whether the method creates an untoward,
readily avoidable risk of inflicting severe and unnecessary
suffering. Post, at 11 (dissenting opinion). I
agree that the relevant factors—the “degree of risk,” the
“magnitude of pain,” and the “availability of alternatives”—
are interrelated and each must be considered.
Post, at 4. At the same time, I believe that the legal merits
of the kind of claim presented must inevitably turn not
so much upon the wording of an intermediate standard ofreview as upon facts and evidence. And I cannot find,
either in the record in this case or in the literature on the
subject, sufficient evidence that Kentucky’s executionmethod poses the “significant and unnecessary risk of
inflicting severe pain” that petitioners assert. Brief for
Petitioners 28.
In respect to the literature, I have examined the periodi

BREYER, J., concurring in judgment
cal article that seems first to have brought widespread
legal attention to the claim that lethal injection might
bring about unnecessary suffering. See ante, at 13, n. 2
(plurality opinion); Denno, The Lethal Injection Quandary:
How Medicine Has Dismantled the Death Penalty, 76
Ford. L. Rev. 49, 105, n. 366 (2007) (collecting cases in
which condemned inmates cited the Lancet study). The
article, by Dr. Leonidas G. Koniaris, Teresa A. Zimmers(of the University of Miami School of Medicine), and others,
appeared in the April 16, 2005, issue of the Lancet, an
eminent, peer-reviewed medical journal. See Koniaris,
Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesiain Lethal Injection for Execution, 365 Lancet 1412 (hereinafter
Lancet Study). The authors examined “autopsytoxicology results from 49 executions in Arizona, Georgia,
North Carolina, and South Carolina.” Id., at 1412–1413.
The study noted that lethal injection usually consists of
sequential administration of a barbiturate (sodium thiopental),
followed by injection of a paralyzing agent (pancuronium
bromide) and a heart-attack-inducing drug(potassium chloride). The study focused on the effectiveness
of the first drug in anaesthetizing the inmate. See
id., at 1412. It noted that the four States used 2 grams of
thiopental. Id., at 1413. (Kentucky follows a similar
system but currently uses 3 grams of sodium thiopental.
See ante, at 5–6 (plurality opinion)). Although the sodiumthiopental dose (of, say, 2 grams) was several times thedose used in ordinary surgical operations, the authorsfound that the level of barbiturate present in the bloodstream
several hours (or more) after death was lower than
the level one might expect to find during an operation.
Lancet Study 1413–1414. With certain qualifications,
they state that “21 (43%)” of the examined instances “had
[thiopental] concentrations consistent with consciousness,”
id., at 1413,—a fact that should create considerable concern
given the related likelihood of unexpressed suffering.

Cite as: 553 U. S. ____ (2008)
BREYER, J., concurring in judgment
The authors suggest that, among other things, inadequatetraining may help explain the results. Id., at 1414.
The Lancet Study, however, may be seriously flawed. In
its September 24, 2005, issue, the Lancet published three
responses. The first, by one of the initial referees, Jonathan
I. Groner of Children’s Hospital, Columbus, Ohio,
claimed that a low level of thiopental in the bloodstreamdoes not necessarily mean that an inadequate dose wasgiven, for, under circumstances likely common to lethal
injections, thiopental can simply diffuse from the bloodstream
into surrounding tissues. See Inadequate Anaesthesia
in Lethal Injection for Execution, 366 Lancet 1073.
And a long pause between death and measurement means
that this kind of diffusion likely occurred. See ibid. For
this reason and others, Groner, who said he had initially
“expressed strong support for the article,” had become
“concerned” that its key finding “may be erroneous because
of lack of equipoise in the study.” Ibid.
The second correspondents, Mark J. S. Heath (petitioners’
expert in their trial below), Donald R. Stanski, and
Derrick J. Pounder, respectively of the Department ofAnesthesiology, Columbia University, of Stanford University
School of Medicine, and the University of Dundee,
United Kingdom, concluded that “Koniaris and colleagues
do not present scientifically convincing data to justify their
conclusion that so large a proportion of inmates haveexperienced awareness during lethal injection.” Ibid.
These researchers noted that because the blood sampleswere taken “several hours to days after” the inmates’
deaths, the postmortem concentrations of thiopental—alipophilic drug that diffuses from blood into tissue—could
not be relied on as accurate indicators for concentrations
in the blood stream during life. Ibid. See also ante, at 12–
13, n. 2 (plurality opinion).
The third correspondents, Robyn S. Weisman, Jeffrey N.
Bernstein, and Richard S. Weisman, of the University of

BREYER, J., concurring in judgment
Miami, School of Medicine, and Florida Poison Information
Center, said that “[p]ost-mortem drug concentrationsare extremely difficult to interpret and there is substantial
variability in results depending on timing, anatomicalorigin of the specimen, and physical and chemical properties
of the drug.” 366 Lancet, at 1074. They believed that
the original finding “requires further assessment.” Ibid.
The authors of the original study replied, defending theaccuracy of their findings. See id., at 1074–1076. Yet,
neither the petition for certiorari nor any of the briefs filed
in this Court (including seven amici curiae briefs supporting
the petitioners) make any mention of the LancetStudy, which was published during petitioners’ trial. In
light of that fact, and the responses to the original study, a
judge, nonexpert in these matters, cannot give the LancetStudy significant weight.
The literature also contains a detailed article on the
subject, which appeared in 2002 in the Ohio State Law
Journal. The author, Professor Deborah W. Denno, examined
executions by lethal injection in the 36 States where
thiopental is used. See When Legislatures DelegateDeath: The Troubling Paradox Behind State Uses of Electrocution
and Lethal Injection and What It Says About Us,
63 Ohio St. L. J. 63. In Table 9, the author lists 31
“Botched Lethal Injection Executions” in the time from ourdecision in Gregg v. Georgia, 429 U. S. 1301 (1976),
through 2001. See Denno, 63 Ohio St. L. J., at 139–141.
Of these, 19 involved a problem of locating a suitable veinto administer the chemicals. Ibid. Eleven of the remaining
12 apparently involved strong, readily apparent physical
reactions. Ibid. One, taking place in Illinois in 1990,
is described as involving “some indication that, whileappearing calm on the outside due to the paralyzing
drugs, [the inmate] suffered excruciating pain.” Id., at
139. The author adds that “[t]here were reports of faulty
equipment and inexperienced personnel.” Ibid. This

Cite as: 553 U. S. ____ (2008)
BREYER, J., concurring in judgment
article, about which Professor Denno testified at petitioners’
trial and on which petitioners rely in this Court, maywell provide cause for concern about the administration of
the lethal injection. But it cannot materially aid the
petitioners here. That is because, as far as the record here
reveals, and as the Kentucky courts found, Kentucky’s use
of trained phlebotomists and the presence of observers
should prevent the kind of “botched” executions that
Denno’s Table 9 documents.
The literature also casts a shadow of uncertainty uponthe ready availability of some of the alternatives to lethal
execution methods. Petitioners argued to the trial court,
for example, that Kentucky should eliminate the use of aparalytic agent, such as pancuronium bromide, which
could, by preventing any outcry, mask suffering an inmatemight be experiencing because of inadequate administration
of the anesthetic. See Brief for Petitioners 51–57;
Reply Brief for Petitioners 18, and n. 6. And they point
out that use of pancuronium bromide to euthanize animalsis contrary to veterinary standards. See id., at 20 (citingBrief for Dr. Kevin Concannon et al. as Amici Curiae 17–
18). See also the Concannon Brief 4, 18, n. 5 (noting that
Kentucky, like 22 other States, prohibits the use of neuromuscular
blocking agents in euthanizing animals). In
the Netherlands, however, the use of pancuronium bromide
is recommended for purposes of lawful assisted
suicide. See ante, at 19–20 (plurality opinion) (discussing
the Royal Dutch Society for the Advancement of Pharmacyrecommendation of the use of a muscle relaxant such as
pancuronium in addition to thiopental). See also Kimsma,
Euthanasia and Euthanizing Drugs in The Netherlands,
reprinted in Drug Use in Assisted Suicide and Euthanasia193, 199–202 (M. Battin & A. Lipman eds. 1996) (discussing
use of neuromuscular relaxants). Why, one might ask,
if the use of pancuronium bromide is undesirable, wouldthose in the Netherlands, interested in practices designed

BREYER, J., concurring in judgment
to bring about a humane death, recommend the use ofthat, or similar, drugs? Petitioners pointed out that in the
Netherlands, physicians trained in anesthesiology areinvolved in assisted suicide, while that is not the case in
Kentucky. See Tr. of Oral Arg. 55. While important, that
difference does not resolve the apparently conflictingviews about the inherent propriety or impropriety of use ofthis drug to extinguish human life humanely.
Similarly, petitioners argue for better trained personnel.
But it is clear that both the American Medical Association
(AMA) and the American Nursing Association (ANA) have
rules of ethics that strongly oppose their members’ participation
in executions. See Brief for American Society
of Anesthesiologists as Amicus Curiae 2–3 (citing
AMA, Code of Medical Ethics, Policy E–2.06 Capital
Punishment (2000), online at
ama1/pub/upload/mm/369/e206capitalpunish.pdf (all In-
ternet materials as visited Apr. 10, 2008, and available
in Clerk of Court’s case file)); ANA, Position State-
ment: Nurses’ Participation in Capital Punishment
EthicsandHumanRights.aspx (noting that nurses’ participation
in executions “is viewed as contrary to the fundamental
goals and ethical traditions of the profession”).
Cf. Ky. Rev. Stat. Ann. §431.220(3) (West 2006) (Kentucky
prohibiting a physician from participating in the “conduct
of an execution,” except to certify the cause of death). And
these facts suggest that finding better trained personnel
may be more difficult than might, at first blush, appear.
Nor can I find in the record in this case any strongerevidence in petitioners’ favor than the literature itself
provides of an untoward, readily avoidable risk of severepain. Indeed, JUSTICE GINSBURG has accepted what I
believe is petitioners’ strongest claim, namely, Kentucky

Cite as: 553 U. S. ____ (2008)
BREYER, J., concurring in judgment
should require more thorough testing as to unconsciousness.
See post, at 5–11. In respect to this matter, however,
I must agree with the plurality and JUSTICE
STEVENS. The record provides too little reason to believe
that such measures, if adopted in Kentucky, would make asignificant difference.
The upshot is that I cannot find, either in the record orin the readily available literature that I have seen, sufficient
grounds to believe that Kentucky’s method of lethal
injection creates a significant risk of unnecessary suffering.
The death penalty itself, of course, brings with it
serious risks, for example, risks of executing the wrong
person, see, e.g., ante, at 16–17 (STEVENS, J., concurring injudgment), risks that unwarranted animus (in respect,
e.g., to the race of victims), may play a role, see, e.g., ante,
at 16, risks that those convicted will find themselves on
death row for many years, perhaps decades, to come, see
Smith v. Arizona, 552 U. S. ___ (2007) (BREYER, J., dissenting
from denial of certiorari). These risks in partexplain why that penalty is so controversial. But the
lawfulness of the death penalty is not before us. And
petitioners’ proof and evidence, while giving rise to legitimate
concern, do not show that Kentucky’s method ofapplying the death penalty amounts to “cruel and unusual
For these reasons, I concur in the judgment.

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