No. 07-5439
In the Supreme Court of the United States
RALPH BAZE AND THOMAS C. BOWLING, PETITIONERS
v.
JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF CORRECTIONS, ET AL.
(CAPITAL CASE)
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF KENTUCKY
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
GREGORY G. GARRE
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
ROBERT J. ERICKSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Like the federal government and the vast majority of States that have the death penalty, Kentucky conducts executions of individuals convicted of capital offenses and sentenced to death by means of lethal injection: specifically, by administering a series of three drugs that is intended to cause death in a painless and expedi tious manner. The question presented is as follows:
Whether Kentucky's method of execution constitutes cruel and unusual punishment under the Eighth Amend ment, based solely on the risk that the drugs involved will cause pain if improperly administered.
In the Supreme Court of the United States
No. 07-5439
RALPH BAZE AND THOMAS C. BOWLING, PETITIONERS
v.
JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF CORRECTIONS, ET AL.
(CAPITAL CASE)
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF KENTUCKY
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
INTEREST OF THE UNITED STATES
This case involves a challenge to the constitutionality of Kentucky's method of execution-lethal injection- based solely on the risk that the drugs involved will cause pain if improperly administered. Federal law au thorizes capital punishment for a variety of offenses and provides that federal death sentences shall be imple mented in the manner prescribed by the pertinent State's own law. In conducting executions by lethal in jection, the federal government administers the same series of three drugs as Kentucky. Several federal pris oners who have been sentenced to death are currently pursuing similar method-of-execution claims to the in stant claim. See Robinson v. Mukasey, No. 1:07-cv-
02145 (D.D.C.); Roane v. Mukasey, No. 1:05-cv-02337 (D.D.C.). The United States therefore has a substantial interest in this case.
STATEMENT
A. Background
1. The use of capital punishment in America dates virtually from the foundation of the first colony. Capital punishment was sanctioned in all of the colonies; the predominant method of execution was hanging, but burning, disemboweling, and dismembering were used in exceptional cases. Following the adoption of the Con stitution, hanging was used in virtually all executions. In 1889, New York, after looking for a more humane option, switched to electrocution; other States followed suit, based on the "well grounded belief that electrocu tion is less painful and more humane than hanging." Malloy v. South Carolina, 237 U.S. 180, 185 (1915). For much of the 20th century, electrocution was the predom inant method of execution in the United States; some States adopted lethal gas, and a few States continued to use hanging or a firing squad. See Stuart Banner, The Death Penalty: An American History 6-9, 70-80, 169- 170, 189, 199, 202-203 (2002) (Banner).
After this Court affirmed the constitutionality of cap ital punishment in Gregg v. Georgia, 428 U.S. 153 (1976), there was increasing concern that electrocution might not in fact cause death in a painless or expeditious man ner. See Banner 297. In 1977, legislators in Oklahoma who shared that concern, after consulting with the chair of the anesthesiology department at the University of Oklahoma College of Medicine, proposed a bill adopting lethal injection as the State's method of execution. See Beardslee v. Woodford, 395 F.3d 1064, 1073 (9th Cir.), cert. denied, 543 U.S. 1096 (2005). The Oklahoma Legis lature enacted that bill, and other States subsequently switched to lethal injection as well. Lethal injection is now the sole or primary method of execution in 37 of the 38 States that authorize capital punishment. See Beardslee, 395 F.3d at 1072 & n.8.
Of the 37 States that conduct executions by means of lethal injection, the vast majority-at least 29-do so by administering the same series of three drugs originally devised by the Oklahoma Department of Corrections. See Workman v. Bredesen, 486 F.3d 896, 907 (6th Cir.), cert. denied, 127 S. Ct. 2160 (2007). The first drug is sodium thiopental (or sodium pentothal), a fast-acting barbiturate that anesthetizes the subject within 60 sec onds. J.A. 762-763, 806. The second is pancuronium bromide, a neuromuscular paralytic that prevents bodily movement and ultimately halts respiration. Ibid. The third is potassium chloride, an agent that induces car diac arrest. Ibid. While jurisdictions administer the three drugs in somewhat different dosages, it is undis puted that, if properly administered, the massive dose of sodium thiopental that is typically given-ten times the amount used in a typical surgical procedure-would an esthetize the subject for hours, such that the administra tion of the other two drugs would be painless. J.A. 541; see Resp. Br. 37-38, 49. It is also undisputed that, if properly administered, the dose of each drug that is typ ically given would ordinarily be sufficient to induce death on its own. J.A. 547; see, e.g., Workman, 486 F.3d at 902.
2. Like the States, the federal government has con ducted executions since the Nation's founding. See Dave Turk, U.S. Marshals Service, Historical Federal Executions (visited Dec. 10, 2007) <www.usmarshals. gov/history/executions.htm>. The statute that cur rently governs federal executions is the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C. 3591 et seq. The FDPA specifically provides that federal death sentences shall be "implement[ed] * * * in the manner pre scribed by the law of the State in which the sentence is imposed," or, if the sentencing State does not authorize capital punishment, in the manner prescribed by a State designated by the sentencing court. 18 U.S.C. 3596(a). Since the FDPA's enactment, the federal government has executed three individuals, all by lethal injection; 48 other individuals are currently awaiting execution in the federal system.
The Federal Bureau of Prisons (BOP) conducts exe cutions at the United States Penitentiary in Terre Haute, Indiana. The BOP has developed a uniform writ ten protocol for carrying out executions where the rele vant State prescribes lethal injection as the manner of execution. See App., infra, 1a-6a. That protocol pro vides that the subject should be executed using 5 grams of sodium thiopental, 240 milligrams of pancuronium bromide, and 240 milliequivalents of potassium chloride. Id. at 3a-4a. It further specifies that the series of drugs should be administered intravenously, preferably by means of a femoral vein; if peripheral veins are to be used, the protocol requires that a backup line be estab lished, for use in the event that the primary line fails. Id. at 3a. "Qualified personnel" are responsible for pre paring the series of drugs, establishing intravenous ac cess, and controlling the flow of the drugs; the protocol defines "qualified personnel" as individuals who have "necessary training or experience in the function they will perform in implementing the federal death sen tence." Id. at 2a-5a. Qualified personnel are expressly required to monitor the consciousness of the subject; they are permitted to administer the last two drugs in the series only after determining that the subject has been rendered unconscious by the dose of sodium thiopental. Id. at 5a-6a.
B. Facts And Proceedings Below
1. Around 7 a.m. on April 9, 1990, Eddie and Tina Earley and their two-year-old son, Christopher, were sitting in their car in Lexington, Kentucky, outside Earley Bird Cleaners, a dry-cleaning business that they owned. Petitioner Bowling crashed his car into the Earleys' car. Bowling got out of his car, drew a gun, and fired indiscriminately into the Earleys' car, killing Eddie and Tina Earley and wounding Christopher. Af ter going over and looking at the victims, Bowling got back in his car and drove away. See Bowling v. Com monwealth, 873 S.W.2d 175, 176-177 (Ky. 1993), cert. denied, 513 U.S. 862 (1994).
On January 30, 1992, Powell County, Kentucky, Sheriff Steve Bennett and Deputy Sheriff Arthur Briscoe went to petitioner Baze's cabin in order to ar rest him on multiple fugitive warrants. Baze was hiding in the brush with an assault rifle. As his wife distracted the officers, Baze shot Sheriff Bennett three times in the back, killing him. When Deputy Briscoe attempted to flee, Baze shot him twice in the back; Baze then walked up to Deputy Briscoe, punched him with the muzzle of his gun, and shot him a third time in the head, killing him. See Baze v. Commonwealth, 965 S.W.2d 817, 819- 820 (Ky. 1997), cert. denied, 523 U.S. 1083 (1998).
Petitioners were each convicted in Kentucky state court of two counts of capital murder and sentenced to death. They have exhausted their direct appeals and federal and state collateral remedies.
2. In 1998, Kentucky adopted lethal injection as its default method of execution. See Ky. Rev. Stat. Ann. § 431.220(1) (LexisNexis 1999). Kentucky uses the same series of three drugs as the federal government and the majority of other States; Kentucky's protocol provides that the subject should be executed using 3 grams of sodium thiopental, 50 milligrams of pancuronium bro mide, and 240 milliequivalents of potassium chloride. J.A. 806, 978-979. The protocol provides that qualified personnel are responsible for preparing the series of drugs, establishing intravenous access, and controlling the flow of the drugs; Kentucky uses a phlebotomist and an emergency medical technician to perform those tasks. J.A. 273-274, 516-517, 761-762, 975-976, 984, 987.
3. In 2004, petitioners filed a civil action against respondents, three state officials, in Kentucky state court, contending that Kentucky's method of execution constituted cruel and unusual punishment under the Eighth Amendment. J.A. 9-50. After a seven-day bench trial with some 20 witnesses, the trial court ruled in fa vor of respondents in relevant part. J.A. 754-769. After making various factual findings concerning Kentucky's method of execution, the trial court concluded that peti tioners had failed to show that the method would "in flict[] unnecessary physical pain upon the condemned." J.A. 766.
4. The Kentucky Supreme Court unanimously af firmed. J.A. 798-809. The court explained that "[a] method of execution is considered to be cruel and un usual punishment under the Federal Constitution when the procedure for execution creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death." J.A. 800 (citation omitted). While the court acknowledged that "[c]onflicting medical testi mony prevents us from stating categorically that a pris oner feels no pain," it noted that the individual whom Kentucky had previously executed by lethal injection "went to sleep within 15 seconds to one minute from the moment that the warden began the execution and never moved or exhibited any pain whatsoever subsequent to losing consciousness." Ibid. The court affirmed the trial court's findings and held that "[t]he lethal injection method used in Kentucky is not a violation of the Eighth Amendment." Ibid.
SUMMARY OF ARGUMENT
In Gregg, this Court reaffirmed that capital punish ment is constitutional; in doing so, members of this Court explained that "a heavy burden rests on those who would attack the judgment of the representatives of the people" as to how that punishment should be applied and implemented. 428 U.S. at 175 (joint opinion of Stewart, Powell, and Stevens, JJ.). It necessarily follows that there must be some feasible method by which a sentence of death may be executed-and that such a sentence may be imposed and carried out without a never-ending series of demands that a more humane method exists.
This Court has never held that a method of execution violates the Eighth Amendment. To the contrary, the Court has rejected challenges to executions by firing squad and electrocution and, at the same time, made clear that jurisdictions are not required to use the "best" available method of execution: i.e., the method that is believed to cause the least amount of pain when compared to other methods. Such a standard would im pose an impossible burden on the federal government and the States and would, at a minimum, be a recipe for judicial micromanagement of execution procedures, in cluding the medical and scientific details of those proce dures.
Instead, this Court's method-of-execution cases sug gest that the Eighth Amendment would prohibit a method of execution only if it would inflict a consider ably greater degree of pain than a feasible alternative method. And where, as here, an individual is claiming that a particular method of execution is invalid because there is a risk that it would inflict an excessive degree of pain, the claimant must show, at a minimum, that there is a substantial risk-not merely a marginal or hypo thetical one-that the challenged method would inflict a significantly greater degree of pain than a feasible alternative method. A contrary rule would turn upside down the presumption in favor of the methods selected by democratically elected legislatures; contravene this Court's cases recognizing that the Eighth Amendment does not protect against accidents, inadvertent failures, or unproven risks; and greatly undermine society's in terest in seeing that executions are carried out in a timely manner. The claimant must also show that, in implementing the method of execution at issue, govern ment officials are acting with deliberate indifference to a demonstrated risk posed by that method-not merely that officials failed to take every conceivable precaution to mitigate that risk.
Petitioners cannot satisfy either the objective or the subjective prong of that Eighth Amendment standard. With regard to the objective prong, the risk identified by petitioners-i.e., that the drugs used in their execu tions will be improperly administered, resulting in ex cessive pain-is simply too speculative to be constitu tionally significant. While some risk of pain is inherent in any method of capital punishment, the risk of pain from lethal injection has not been shown to be any greater as a quantifiable matter than the risk of pain from other methods of execution accepted by this Court, including electrocution and hanging. It would be anoma lous for the Court to hold that this method of capital punishment-compared to, say, electrocution, see Loui siana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)- imposes a constitutionally unacceptable risk of pain and suffering.
Any risk of pain inherent in lethal injection is mani festly "one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. 25, 36 (1993). The vast majority of jurisdictions that authorize capital punish ment use the same series of three drugs as Kentucky, and the anecdotal evidence from other jurisdictions cited by petitioners falls fall short of establishing that Ken tucky's method of execution gives rise to a substantial risk of excessive pain. Nor do petitioners identify any features of Kentucky's method that substantially in crease the risk of pain during their executions. Each of the alternative methods that petitioners propose, more over, has its own disadvantages, and the Constitution ultimately vests in legislatures, not the courts, the dis cretion to choose between different methods of execu tion within a constitutionally permissible range.
Finally, while the Constitution protects against offi cials who are deliberately indifferent to a constitution ally significant risk of pain, petitioners have failed to show that respondents are acting with anything close to deliberate indifference. Indeed, the whole point of the lethal-injection procedure is to avoid the needless inflic tion of pain and to hasten death. The evidence indicates, moreover, that respondents, like other federal and state officials, have gone to great lengths to minimize the risk of error and to avoid inflicting excessive pain during executions. Indeed, Kentucky, like the federal govern ment and other States, has reviewed and modified its execution protocol in an effort further to alleviate any risk of pain. The Kentucky Supreme Court therefore correctly rejected petitioners' Eighth Amendment claim.
ARGUMENT
KENTUCKY'S METHOD OF EXECUTION DOES NOT VIO LATE THE EIGHTH AMENDMENT
The Eighth Amendment to the Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments in flicted." It does not constitute cruel and unusual punish ment to execute an individual by administering the se ries of three drugs used by Kentucky, the federal gov ernment, and the vast majority of other States that sanction capital punishment. That series of drugs is intended to cause death in a painless and expeditious manner, and petitioners have failed to show that there is a substantial risk that Kentucky's method of execution would inflict a significantly greater degree of pain than any feasible alternative method. The judgment of the Kentucky Supreme Court should therefore be affirmed.
A. Because Capital Punishment Is Constitutional, There Must Be A Feasible Method By Which A Sentence Of Death May Be Executed
The starting point for any analysis of petitioners' Eighth Amendment claim is that capital punishment is itself constitutional. It is constitutional not only in the sense that the Court's cases have upheld the death pen alty, see, e.g., Gregg, supra, but also in the sense that the Constitution expressly contemplates capital punish ment. The Fifth Amendment "contemplate[s] the con tinued existence of the capital sanction by imposing cer tain limits on the prosecution of capital cases." Gregg, 428 U.S. at 177 (joint opinion). The Grand Jury Clause of the Fifth Amendment guarantees that "[n]o person shall be held to answer for a capital, or otherwise infa mous crime, unless on a presentment or indictment of a Grand Jury." The Double Jeopardy Clause similarly contemplates jeopardy, but not double jeopardy, of "life or limb." And the Due Process Clause permits "depri vation" of "life," but only through "due process of law." Moreover, the Due Process Clause of the Fourteenth Amendment, adopted more than 75 years later, likewise presumes the existence of the death penalty. And to the extent that the Eighth Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion), it was true at the time of Gregg, and remains true today, that "a large propor tion of American society * * * regard[s] [death] as an appropriate and necessary criminal sanction." Gregg, 428 U.S. at 179 (joint opinion).
The necessary corollary of the proposition that capi tal punishment is constitutional is that there must be some feasible method by which a sentence of death may be carried out, even though it will always be possible to argue that a more "pain-free" method exists. Were it otherwise, the result would be to render capital punish ment constitutional in theory, but unconstitutional in practice. Petitioners in this case do not contend that there is no valid feasible method of execution, but in stead contend that Kentucky's method of execution gives rise to an unacceptable risk of pain when compared to alternative methods that they identify. The central question in this case is the applicable legal standard for an Eighth Amendment claim of that variety.
B. The Eighth Amendment Prohibits The Use Of A Method Of Execution When There Is A Substantial Risk That The Method Would Inflict A Significantly Greater De gree Of Pain Than A Feasible Alternative Method And Officials Act With Deliberate Indifference To That Risk
1. In prescribing "cruel and unusual punishments," the Framers of the Constitution "were primarily con cerned * * * with proscribing 'tortures' and other 'bar barous' methods of punishment." Gregg, 428 U.S. at 170 (joint opinion); see Estelle v. Gamble, 429 U.S. 97, 102 (1976). While there was little discussion of the Eighth Amendment in the debates concerning the Bill of Rights itself, the views of early commentators confirm that the relevant language was intended to prohibit methods of punishment that deliberately inflicted excessive amounts of pain, such as the rack or the stake. See, e.g., James A. Bayard, Jr., A Brief Exposition of the Consti tution of the United States 154 (2d ed. 1840).
2. This Court has considered claims that a method of execution violates the Eighth Amendment in three cases, but has never held a method invalid.
a. In Wilkerson v. Utah, 99 U.S. 130 (1878), an indi vidual convicted of murder in territorial court chal lenged his sentence to death by firing squad. Id. at 136. The Court held that the sentence would not constitute cruel and unusual punishment. Id. at 133. The Court stated that "[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, * * * and all others in the same line of un necessary cruelty, are forbidden by that amendment." Id. at 135-136. The Court cited cases from England in which "other circumstances of terror, pain, or disgrace" were "superadded" to the act of execution. Id. at 135. By contrast, the Court noted, the firing squad was rou tinely used as a method of execution for military of fenses, see id. at 133-135, and "[o]ther modes besides hanging were sometimes resorted to at common law," id. at 137.
b. In re Kemmler, 136 U.S. 436 (1889), involved the first execution by electrocution in New York. The de fendant argued that his execution would constitute cruel and unusual punishment (and that the Eighth Amend ment should be incorporated against the States). Id. at 447-448. The Court ultimately rejected the incorpora tion argument. Id. at 449. The Court noted, however, that under the Eighth Amendment, "[p]unishments are cruel when they involve torture or a lingering death." Id. at 447. The Court reasoned that "the punishment of death is not cruel, within the meaning of that word as used in the Constitution"; instead, the word "cruel" "im plies * * * something inhuman and barbarous, some thing more than the mere extinguishment of life." Ibid. The Court also noted that New York had a counterpart to the Eighth Amendment in its state constitution, and observed that the state courts had held that execution by electrocution would not constitute cruel and unusual punishment under that provision, on the grounds that "th[e] act [adopting electrocution] was passed in the ef fort to devise a more humane method of reaching the result" and that "upon the evidence the legislature had attained * * * the object [it] had in view in [the act's] passage." Ibid. The Court reasoned that, if it were to treat the state courts' holding as "involving an adjudica tion that the statute was not repugnant to the Federal Constitution," that holding would be "plainly right." Ibid.
c. Finally, in Resweber, an individual whose execu tion by electrocution had failed because of a mechanical malfunction contended that Louisiana's subsequent ef fort to execute him would constitute cruel and unusual punishment (and that the Eighth Amendment should be incorporated against the States). 329 U.S. at 461 (plu rality opinion). A plurality of the Court concluded that, while the Fourteenth Amendment "would prohibit by its due process clause execution by a state in a cruel man ner," the instant execution would not violate the Eighth Amendment. Id. at 463. The plurality reasoned that the Eighth Amendment "[p]rohibit[s] * * * the wanton infliction of pain," but that "[t]he cruelty against which the Constitution protects a convicted man is * * * not the necessary suffering involved in any method em ployed to extinguish life humanely." Id. at 463-464. Ap plying that standard, the plurality determined that "[t]he fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot * * * add an element of cruelty to a subsequent execution," on the ground that "[t]here is no purpose to inflict unneces sary pain nor any unnecessary pain involved in the pro posed execution." Id. at 464.
Justice Frankfurter concurred in the judgment. Resweber, 329 U.S. at 466-472. While he suggested that "a hypothetical situation, which assumes a series of abortive attempts at electrocution or even a single, cru elly willful attempt, would * * * raise different ques tions," he concluded that it would not violate due process to carry out the instant execution. Id. at 471.
3. As the foregoing discussion demonstrates, there is no support, either in the history of the Eighth Amend ment or in this Court's cases interpreting it, for the proposition that States and the federal government may use only one method of execution: viz., the method that is believed to cause the least amount of pain when com pared to other methods. Such a proposition also is be lied by the fact that, throughout the Nation's history, multiple methods of execution have been in use at any given time. For example, while hanging was the pre dominant method of execution at the time of the fram ing, there appears to have been considerable variation in how executions by hanging were carried out-and, at least for military offenses, the firing squad was also used. See Banner 44-48. During much of the 20th cen tury, moreover, jurisdictions simultaneously used as many as four different methods of execution: electrocu tion, lethal gas, hanging, and the firing squad. See p. 2, supra.
If the Eighth Amendment mandated the use of only the "best" available method of execution, as petitioners' "unnecessary risk" standard seemingly (or effectively) contemplates, jurisdictions presumably would be re quired to choose between an old and new method of exe cution as soon as each new method became avail able-and, within the constitutionally mandated "method" of execution, to employ the optimal variation of that method. Cf. J.A. 31 (alleging, in complaint, that the needle used in Kentucky executions is "too large"). And as society progresses, courts would become increas ingly enmeshed in reviewing (and second-guessing) the medical and scientific judgments underlying accepted execution methods. Cf. Marshall v. United States, 414 U.S. 417, 427 (1974) (noting that, "[w]hen Congress un dertakes to act in areas fraught with medical and scien tific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legis lation"). Indeed, much of the debate in this case centers on the appropriate type (and dosage) of drugs used in lethal injection-hardly a matter of institutional exper tise for the judiciary.
Putting aside how more humane methods of execu tion could emerge in a regime in which the constitutional mandate of uniformity precluded innovation in the States, the Eighth Amendment does not envision such micromanagement of execution procedures (or give courts adequate tools for the task). See, e.g., Gregg, 428 U.S. at 175 (joint opinion) (noting that "[w]e may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved" and that "a heavy burden rests on those who would attack the judgment of the representatives of the people"). Instead, the better reading of the Eighth Amend ment-as reflected by this Court's repeated references to "torturous" or "barbarous" punishments-is that a method of execution is unconstitutional only where it would inflict a considerably greater amount of pain when compared to another method. See, e.g., Resweber, 329 U.S. at 464 (plurality opinion).
While this Court has suggested that the Eighth Amendment inquiry is a comparative one, it has not ex plicitly specified the baseline against which the chal lenged method should be measured. The most straight forward approach would be to compare the challenged method with the methods that were viewed as permissi ble (or impermissible) when the Eighth Amendment was promulgated. Such an approach would not merely "pre vent * * * an exact repetition of history," but would proscribe comparably cruel methods of execution that did not exist at the time of the framing. Weems v. United States, 217 U.S. 349, 373 (1910).
Another approach-and one suggested by the "evolving standards of decency" methodology of Eighth Amendment interpretation-would be to measure the challenged method of execution against a currently available alternative, and to assess whether the chal lenged method would inflict a considerably greater de gree of pain than the alternative. Under such a stan dard, a previously permissible method could conceivably be rendered unconstitutional by the development of a better alternative. At the same time, such a standard would afford legislatures at least some leeway in select ing methods of their choosing and would account for the fact that it will invariably be possible for an individual to point to some alternative method or subsequent develop ment suggesting that an existing method is not optimal. Cf. Gregg, 428 U.S. at 176 (joint opinion) (noting that "the deference we owe to the decisions of the state legis latures under our federal system is enhanced where the specification of punishments is concerned, for these are peculiarly questions of legislative policy") (internal quo tation marks and citations omitted).
Under such an approach, one highly relevant consid eration is "the legislation enacted by the country's legis latures," which this Court has described as "the clearest and most reliable objective evidence of contemporary values." Atkins v. Virginia, 536 U.S. 304, 312 (2002) (citation omitted). The Court has looked to the practices of the States and the federal government in invalidating the execution of mentally retarded offenders, see id. at 313-317, and juvenile offenders, see Roper v. Simmons, 543 U.S. 551, 564-567 (2005). Where a majority (or, as here, a vast majority) of jurisdictions use a particular method of execution, it suggests the existence of a con sensus that the method in question is the most humane of the currently available methods, because, "[a]s mod ern sensibilities have moved away from [particular] methods of carrying out a death sentence, so too have the death-penalty procedures of the States and the Fed eral Government." Workman, 486 F.3d at 907. In addi tion, where a majority of jurisdictions use a particular method, it suggests that "society considers the risk [of pain]" inherent in that method to be acceptable. Helling, 509 U.S. at 36 (emphasis added).
4. In this case, petitioners do not contend that a par ticular method of execution would always inflict an ex cessive amount of pain when compared to a feasible al ternative; instead, petitioners contend that Kentucky's method of execution is invalid because there is a risk that it would inflict a greater degree of pain than the alternative methods that they identify. Put another way, petitioners contend that Kentucky's method would inflict greater pain only in some cases: i.e., where the drugs involved are improperly administered.
Although this Court has never directly addressed the issue, the Court's cases suggest that, when an individual is challenging a proposed method of execution on such a probabilistic basis, the challenger must show that there is a substantial risk-not merely a remote or hypotheti cal one-that the method of execution would inflict a significantly greater degree of pain than a feasible al ternative method (taking into account any countervailing risks posed by the alternative method).
For example, in Resweber, the Court rejected the claim that a State's subsequent effort to carry out an execution after a mechanical malfunction would violate the Eighth Amendment, notwithstanding the risk that a similar accident could occur at the second attempt. 329 U.S. at 464 (plurality opinion). Justice Frankfurter, who concurred in the judgment, observed that "a hypotheti cal situation, which assumes a series of abortive at tempts at electrocution or even a single, cruelly willful attempt, would * * * raise different questions." Id. at 471; see Glass v. Louisiana, 471 U.S. 1080, 1086 (1985) (Brennan, J., dissenting from denial of certiorari) (rec ognizing that a method of execution is unconstitutional only where "it causes torture or a lingering death in a significant number of cases") (internal quotation marks and citation omitted); cf. Gregg, 428 U.S. at 188 (joint opinion) (stating that the death penalty "could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner").
This Court's cases involving challenges to conditions of confinement-which the Court has recognized are in some respects analogous to challenges to aspects of an execution method, see Hill v. McDonough, 126 S. Ct. 2096, 2101-2104 (2006); Nelson v. Campbell, 541 U.S. 637, 644 (2004)-further support the conclusion that a challenger must show a substantial risk of the requisite quantum of pain. In Farmer v. Brennan, 511 U.S. 825 (1994), the Court considered a claim that prison officials had failed to protect a prisoner from the risk of violence at the hands of other prisoners. Id. at 830-831. The Court repeatedly stated that, "[f]or a claim * * * based on a failure to prevent harm, the inmate must show," inter alia, "that he is incarcerated under condi tions posing a substantial risk of serious harm." Id. at 834 (emphasis added); see id. at 828, 836, 847. The Court likewise observed that the risk of "accidental" harm does not violate the Eighth Amendment, see id. at 840, and that the Constitution is not offended when offi cials "respond[] reasonably to the risk, even if the harm ultimately was not averted," id. at 844.
Similarly, in Helling, the Court explained, with re gard to a conditions-of-confinement claim that alleged a risk of future injury, that it would constitute "deliberate indifference" if officials ignored "a condition of confine ment that is sure or very likely to cause serious illness and needless suffering" in the future. 509 U.S. at 33 (emphasis added). In addition, the Court stated that the inmate "must show that the risk of which he complains is not one that today's society chooses to tolerate." Id. at 36.
While conditions-of-confinement claims do not in volve punishment per se, there is no justification for adopting a different-and more stringent-standard for an Eighth Amendment claim concerning the possible infliction of pain during an execution than for a claim concerning the possible infliction of bodily injury (or death) during a confinement for a term of years. In both cases, the pain is not inflicted deliberately, but is a pos sible unintended consequence of an effort to achieve a legitimate penological objective. There is no reason to conclude that the Eighth Amendment allows for a differ ent risk of pain in either context. Instead, in both cases, the Eighth Amendment affords the benefit of doubt to the government unless the claimant can show the exis tence of a substantial risk of harm.
Petitioners concede that "[a]n insignificant and un foreseeable risk * * * will not violate the Constitu tion," Br. 39, but suggest that, where a risk is foresee able, even a remote risk could serve as the basis for a valid Eighth Amendment claim, Br. 29, 40, 42. Such a standard, however, cannot be squared with this Court's precedents upholding the constitutionality of methods of capital punishment-especially Resweber, in which the risk of error in a second electrocution was plainly appar ent, given the failure of the first attempt. The funda mental difficulty with petitioners' approach is that, "[a]t some level, every execution procedure ever used con tains risk that the individual's death will not be entirely pain free." Workman, 486 F.3d at 908; see Resweber, 329 U.S. at 464 (plurality opinion) (noting that "[t]he cruelty against which the Constitution protects a con victed man is * * * not the necessary suffering in volved in any method employed to extinguish life hu manely").
Moreover, under petitioners' standard, where an in dividual in one jurisdiction identifies a risk presented by a particular method of execution, however hypothetical, other individuals, in that jurisdiction and others, will inevitably pursue similar claims-with each wave of liti gation engendering further delay in the execution of death sentences, even if the claims are ultimately not successful. This Court has repeatedly recognized that "a State retains a significant interest in meting out a sentence of death in a timely fashion." Nelson, 541 U.S. at 644; see Hill, 126 S. Ct. at 2103; Calderon v. Thomp son, 523 U.S. 538, 556 (1998). That interest would be greatly undermined if an individual could delay his exe cution merely by conceiving of some marginal risk aris ing from a particular execution method.
A further difficulty with petitioner's proposed test is that it would frustrate governmental efforts to experi ment with more humane methods of execution. If any risk with a method requires its abandonment in favor of a method perceived to be superior, there will be little scope for governments to modify their procedures. Peti tioners' test would essentially mandate a single method of execution nationwide. That not only is inconsistent with general principles of federalism and the history of the evolution of capital punishment, but might preclude development of an even more humane method based on early evidence of risk that proves unfounded.
5. Finally, both the history of the Eighth Amend ment and this Court's cases interpreting it indicate that, with regard to a claim that a method of punishment in flicts an excessive amount of pain, the Eighth Amend ment has a subjective, as well as objective, component. The Eighth Amendment proscribes the "unnecessary and wanton infliction of pain." Gregg, 428 U.S. at 173 (joint opinion) (emphasis added). The methods of pun ishment that the Framers of the Constitution viewed as cruel and unusual, such as burning, disemboweling, and drawing and quartering, were all methods which were known to inflict a considerable amount of pain-and, indeed, which were adopted specifically for that reason. Consistent with that understanding, this Court, in evalu ating method-of-execution claims, has consistently con sidered whether the government acted with the intent of inflicting pain. See, e.g., Resweber, 329 U.S. at 477 (plurality opinion); Kemmler, 136 U.S. at 447.
Where, as here, an individual is not directly challeng ing a legislature's choice of execution method, but is in stead challenging government officials' decisions con cerning how to implement the legislature's chosen method, the subjective component of the Eighth Amend ment requires the challenger to demonstrate, at a mini mum, that the officials acted with deliberate indifference to a constitutionally significant risk of pain. This Court has long required a showing of deliberate indifference in cases involving challenges to conditions of confinement; indeed, in originally imposing that requirement, the Court relied heavily on its earlier cases (such as Gregg and Resweber) holding that the Eighth Amendment pro scribes the "wanton" infliction of pain. See Estelle, 429 U.S. at 104-105. A challenge to officials' decisions con cerning how to implement a sentence of death is closely analogous to a challenge to officials' conduct regarding a prisoner's conditions of confinement. In each case, the precise conduct being challenged "does not purport to be the penalty formally imposed for [the] crime," Wilson v. Seiter, 501 U.S. 294, 302 (1991), and, for that reason, a showing of deliberate indifference is necessary in order to render the challenged conduct "punishment" for Eighth Amendment purposes, see id. at 305. As with the "substantial risk" component of the Eighth Amend ment standard, there is no justification for applying a different state-of-mind requirement for a challenge con cerning the possible infliction of pain during an execu tion than for a challenge concerning the possible inflic tion of bodily injury during a term of imprisonment.
In order to demonstrate deliberate indifference, an individual must show that the relevant officials are act ing with reckless disregard toward a constitutionally significant risk of pain. Wilson, 501 U.S. at 836, 839. It is therefore not sufficient for the individual simply to identify some risk of pain that could be avoided through the exercise of due care. See Whitley v. Albers, 475 U.S. 312, 319 (1986). Nor is it enough for a prisoner to iden tify a "risk of negligence in implementing a death-pen alty procedure." Workman, 486 F.3d at 907. Instead, "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohib ited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319.
C. Petitioners Have Failed To Show That Kentucky's Method Of Execution Violates The Eighth Amendment
In this case, petitioners seemingly concede that, "if performed properly," an execution by lethal injection using the same series of three drugs at issue here would be "humane and constitutional." Br. 31. Petitioners' claim instead focuses on two possible ways in which a subject would feel pain during an execution using that series of drugs-both of which depend on the improper administration of the first drug in the series, sodium thiopental. First, petitioners contend that, if the dose of sodium thiopental is improperly administered and the subject is not rendered unconscious, the subject would experience the "agony" of suffocation from the adminis tration of pancuronium bromide. Br. 45. Second, peti tioners contend that, if the subject is not rendered un conscious from the administration of sodium thiopental and does not die from the administration of pan curonium bromide, "the injection of potassium [chloride] * * * will cause excruciating pain" before it induces death. Ibid. The Kentucky Supreme Court-like every other federal court of appeals or state court of last re sort to have considered similar claims-correctly held that petitioners failed to demonstrate a constitutionally unacceptable risk of pain in carrying out Kentucky's chosen method of execution.
1. a. As a preliminary matter, petitioners' claim fails because they have not shown that any risk inherent in Kentucky's three-drug series is one that society would not tolerate. The federal government, and all but one of the States that authorize capital punishment, use lethal injection-and the vast majority of those jurisdictions use the same series of three drugs (or their functional equivalents) as Kentucky. See p. 3, supra. By contrast, petitioners identify no jurisdiction that uses the exact alternative methods that they propose. The overwhelm ing national consensus in support of the three-drug method strongly supports the conclusion that, whatever the risk that the improper administration of the drugs will result in pain, it is a risk that "today's society chooses to tolerate." Helling, 509 U.S. at 36; see Atkins, 536 U.S. at 312.
b. While petitioners list various allegedly problem atic aspects of Kentucky's execution protocol, see Br. 12- 20, petitioners do not contend, much less demonstrate, that Kentucky's protocol so differs from the protocols of other jurisdictions as to render the overwhelming soci etal consensus in support of the three-drug method ir relevant. To the contrary, in arguing that Kentucky's method gives rise to a constitutionally significant risk of pain, petitioners affirmatively rely on the experiences of other jurisdictions in carrying out executions using the same three-drug series. See Br. 8-9, 20-24.
The anecdotal evidence from other jurisdictions cited by petitioners, however, falls far short of establishing that Kentucky's method of execution would inflict a sub stantial risk of significantly greater pain than petition ers' proposed alternative methods. None of that evi dence was introduced in the record in this case, and that is reason enough to affirm the decision below. Even if it had been, however, that evidence would fail to make out the necessary showing to render Kentucky's method of lethal injection unconstitutional. It is unclear whether any of the individuals in petitioners' examples actually suffered excessive pain during their executions.
Petitioners primarily rely on the 2006 Florida execu tion of Angel Diaz. See Br. 20-21. In that case, it does appear that the execution team failed to insert the intra venous line properly, with the result that drugs were injected into Diaz's muscle tissue rather than his veins. See Lightbourne v. McCollum, No. SC06-2391, 2007 WL 3196533, at *15 (Fla. Nov. 1, 2007). But the Florida Su preme Court and a state investigation both found that the problems experienced in Diaz's execution were due not to any inherent flaws in the three-drug series, but rather the failure of particular individuals to follow Florida's written protocol. Id. at *21; see id. at *15-*16 (noting trial-court finding that Diaz did not suffer any pain). And while petitioners contend that California has experienced six "aberrant" executions among the eleven it has performed by lethal injection, see Br. 22, the source on which petitioners rely states only that, accord ing to notes taken at the executions, those individuals may not have ceased breathing as a result of administra tion of sodium thiopental-not that any of those individ uals remained conscious. See Morales v. Tilton, 465 F. Supp. 2d 972, 975 (N.D. Cal. 2006).
Finally, even assuming, arguendo, that any of the individuals in the examples petitioners cite did suffer excessive pain before being executed, that is not suffi cient to demonstrate that petitioners face a substantial risk of such pain. See Helling, 509 U.S. at 35-36. There is always some risk that an execution will not go as planned, but petitioners have failed to quantify that risk-and other courts to have considered similar chal lenges, like the Kentucky Supreme Court, have con cluded that the risk is too remote to be constitutionally significant. See, e.g., Taylor v. Crawford, 487 F.3d 1072, 1085 (8th Cir. 2007), petition for cert. pending, No. 07- 303 (filed Sept. 5, 2007); Workman, 486 F.3d at 910; Hamilton v. Jones, 472 F.3d 814, 817 (10th Cir.), cert. denied, 127 S. Ct. 1054 (2007). Accordingly, there is no basis for finding a constitutionally unacceptable risk on the record in this case.
c. To the extent that petitioners focus on particular features of Kentucky's execution protocol, petitioners have failed to show that those features substantially increase the risk that they would suffer significant pain during their executions. Here again, petitioners' argu ment is based entirely on anecdotal evidence or theoreti cal concerns. As to the risk that the sodium thiopental would be improperly prepared, the trial court specifi cally found that "there would be minimal risk of im proper mixing" of the dose of sodium thiopental if the manufacturer's instructions were followed. J.A. 761. And respondents presented testimony indicating that the preparation of sodium thiopental was not difficult. J.A. 623.
As to the risk that the intravenous line would be im properly set, Kentucky takes many of the same precau tions as the federal government. Most importantly, Kentucky, like the federal government, uses qualified personnel to set the line-in Kentucky's case, a phlebot omist and emergency medical technician, who, according to the trial testimony, "know more about [setting lines] than just about anybody else." J.A. 385; see J.A. 580- 581. Those personnel had many years of experience and were required to undergo regular practice sessions be fore participating in an actual execution. J.A. 273-274, 984. In addition, Kentucky, like the federal government (when it obtains access by means of a peripheral vein), requires the personnel to set a backup line; if the initial dose of sodium thiopental through the primary line does not appear to render the subject unconscious within 60 seconds, an additional dose is administered through the backup line before the last two drugs are delivered. J.A. 279-280, 317-318, 337-338, 978-979. The warden and deputy warden are present in order to monitor the flow of lethal drugs into the subject's vein (and to direct the personnel to switch to the backup line if necessary); re spondents presented testimony indicating that it would be "very obvious," even to someone without medical training, if drugs were flowing into the surrounding tis sue rather than the vein. J.A. 386; see J.A. 323, 353, 600-601. Finally, while the personnel have one hour to establish peripheral intravenous access, they are not required to spend the entire hour attempting to do so-and if they are unable to do so, the execution will be postponed. J.A. 289, 761-762, 976.
Moreover, petitioners acknowledge that there is no evidence that there have been any difficulties with Ken tucky's execution protocol in practice. See Br. 9. As the Kentucky Supreme Court noted, there has been only one prior execution by lethal injection in Kentucky-and the individual who was executed "went to sleep within 15 seconds to one minute from the moment that the warden began the execution and never moved or exhibited any pain whatsoever subsequent to losing consciousness." J.A. 807; see J.A. 134, 147-148, 189, 277-278, 320, 502- 503. While petitioners suggest that "there is no way to know whether [that] execution was humane," Br. 9, the burden is on petitioners to prove a substantial risk of pain, not on the State to disprove the existence of pain in an execution in which there is no evidence thereof. The lack of even anecdotal evidence of difficulties with Kentucky's execution protocol strongly counsels against a conclusion that the protocol would subject petitioners to a constitutionally significant risk of pain.
d. In any event, petitioners have failed to show that there is a substantial risk that Kentucky's method of execution would inflict a significantly greater degree of pain than a feasible alternative method, because neither of the two alternative methods that petitioners identify before this Court is obviously superior to the three-drug method and each has its own disadvantages.
First, petitioners contend (Br. 51-57), apparently for the first time in this case, that Kentucky could switch from the three-drug method to a one-drug method: i.e., by using a single dose of sodium thiopental (or another barbiturate). Other jurisdictions, however, have consid ered and validly rejected that alternative. A committee established to review Tennessee's execution procedures, while recognizing that the one-drug method would be easier to administer, concluded that it would likely take longer than the three-drug method. See Workman, 486 F.3d at 919. An execution using that alternative would thus potentially implicate a convict's Eighth Amendment interest in not being subjected to a "lingering death," Kemmler, 136 U.S. at 447, and, at a minimum, would contravene the government's legitimate penological in terest in ensuring that an execution is carried out in an expeditious manner.
The Tennessee committee also noted that there was no record of the efficacy of the one-drug method, be cause it had not been used in any other jurisdiction, and concluded that the "required dosage of [barbiturate] would be less predictable and more variable when it is used as the sole mechanism for producing death." Workman, 486 F.3d at 919. Because the one-drug method has never been tested, it is theoretically possible that an execution using the one-drug method could fail, see J.A. 24 (alleging in complaint that "sensitivity to thiopental varies greatly among the population and some individuals"), whereas there have been no cases in which an execution using the three-drug method was unsuc cessful. For those reasons, the one-drug method does not constitute a feasible alternative method of execution against which Kentucky's three-drug method can validly be measured.
Petitioners suggest that, at a minimum, Kentucky could remove pancuronium bromide from its execution protocol. See Br. 51-53. The trial court, however, spe cifically found that the inclusion of pancuronium bro mide served two legitimate purposes: first, to prevent involuntary muscular movements (which could interfere with the administration of the dose of potassium chloride and could contravene the interests of the convict and the government in ensuring that the execution is conducted with dignity), and second, to stop respiration (and thereby ensure that death is effectuated). J.A. 763; see Workman, 486 F.3d at 909; id. at 918 (report of Tennes see committee).
Second, petitioners contend that Kentucky could more closely monitor the anesthetic depth of the subject, so as to ensure that the subject is properly anesthetized when the last two drugs in the series are administered. See Br. 57-59. As a preliminary matter, that alternative is premised on the unproven hypothesis that individuals are not properly anesthetized under the three-drug method, despite the massive dose of sodium thiopental that they are typically given-ten times the amount used in a typical surgical procedure, and enough to render an individual unconscious within 60 seconds (and for hours). See Resp. Br. 37, 49.
Although petitioners are conspicuously circumspect about specifying who should conduct that monitoring, they imply that it should be an anesthesiologist. See, e.g., id. at 58-59 (referring to "monitoring by [an] anes thesia professional"). Such an alternative, however, would likely not be feasible, because it is doubtful that Kentucky could find a doctor to participate in an execu tion (even if state law permitted it to do so). See Ky. Rev. Stat. Ann. § 431.220(3) (LexisNexis 1999). The American Medical Association and the the American Society of Anesthesiologists (ASA) have determined that it is unethical for doctors to participate in executions. See ASA Br. 2-3. At least one group opposed to the death penalty has even brought suit to force a state medical board to take disciplinary action against doctors who participate in executions. See Zitrin v. Georgia Composite State Bd. of Med. Exam'rs, No. A07A0914, 2007 WL 3025835, at *1 (Ga. Ct. App. Oct. 18, 2007). Accordingly, where lower courts have refused to allow executions to proceed without medical monitoring of anesthetic depth, States have been unable to find a qual ified doctor who was willing to participate. See, e.g., Morales, 465 F. Supp. 2d at 975-976; cf. Gonzales v. Ore gon, 546 U.S. 243, 252 (2006) (noting that, under Oregon law, a doctor may provide, "but may not administer," a lethal dose). But in a constitutional system that permits the death penalty, the baseline for measuring whether a method inflicts unnecessary pain must be a feasible alternative. A theoretical possibility that could not be carried out consistent with the prevailing medical ethics regime is not such an alternative. Like the one-drug method, therefore, medical monitoring of anesthetic depth does not constitute a feasible alternative method of execution.
2. Finally, even if petitioners could show that Ken tucky's method of execution would subject them to a constitutionally significant risk of pain, petitioners have failed to show that, in proposing that method, respon dents are acting with deliberate indifference to any such risk. Petitioners concede that Kentucky, like other States, switched to lethal injection because it believed that lethal injection was a more humane method of exe cution than its prior method, electrocution. See Br. 31. Moreover, "[t]he whole point of the [three-drug series] is to avoid the needless infliction of pain, not to cause it," because "[t]he idea is to anesthetize the individual with one drug before the State administers the remaining two drugs, so that the serial combination of drugs causes a quick and painfree death." Workman, 486 F.3d at 907.
Petitioners seemingly suggest that Kentucky officials acted with deliberate indifference in adopting the three- drug method because they copied that method from other States. See Br. 8. It was hardly reckless for Ken tucky officials to do so, however, in light of the fact that other States had used the same method with few difficul ties (and given the absence of any actual evidence con cerning the efficacy of alternative methods). J.A. 106, 226, 307. In adopting the three-drug method, moreover, Kentucky did not blindly follow the protocols of other States, but instead made certain modifications to those protocols in developing its own. J.A. 156.
In addition, since Kentucky initially adopted the three-drug method, it has reevaluated and modified its protocol in response to concerns about its efficacy. Among other changes, state officials increased the initial dose of sodium thiopental from 2 grams to 3 grams-a "unilateral action[]" that the trial court described as "commendable." J.A. 768; see J.A. 71, 255-256, 290-291, 639-640. Other jurisdictions either have conducted or are in the process of conducting reviews of their execu tion protocols; committees in Florida and Tennessee recommended various modifications to their protocols (while retaining the three-drug series), see Lightbourne, 2007 WL 3196533, at *2, *16-*18; Workman, 486 F.3d at 913-922, and the BOP continually reassesses various aspects of its own protocol for federal executions con ducted by lethal injection. Those reviews reflect that Kentucky and other jurisdictions are "intent not just on satisfying the requirements of the Eighth Amendment but on far exceeding them." Id. at 909. Petitioners' pro posed standard would have the perverse effect of dis couraging such laudable internal reviews-and the adop tion of new and potentially improved methods of execu tion-because, anytime a jurisdiction engaged in such a review, it would expose itself (and other jurisdictions using that same method) to claims that its existing method of execution imposes a constitutionally unac ceptable risk of pain in comparison to the alternatives under consideration.
* * * * *
The Eighth Amendment proscribes methods of exe cution that entail a substantial risk of excessive pain, and protects against the administration of capital pun ishment in a manner that is deliberately indifferent to such an unacceptable risk. But because petitioners in this case presented insufficient evidence that Kentucky's method of execution fails either of those requirements, the Kentucky Supreme Court correctly rejected petition ers' Eighth Amendment claim.
CONCLUSION
The judgment of the Kentucky Supreme Court should be affirmed.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
GREGORY G. GARRE
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
ROBERT J. ERICKSON
Attorney
DECEMBER 2007
APPENDIX
ADDENDUM TO BOP EXECUTION PROTOCOL
FEDERAL DEATH SENTENCE
IMPLEMENTATION PROCEDURES
EFFECTIVE JULY 1, 2007
A. Federal death sentences are implemented by an intravenous injection of a lethal substance or sub stances in a quantity sufficient to cause death, such substance or substances to be determined by the Director, Federal Bureau of Prisons (BOP) and to be administered by qualified personnel selected by the Warden and acting at the direction of the United States Marshal. 28 CFR 26.3. The proce dures utilized by the BOP to implement federal death sentences shall be as follows unless modified at the discretion of the Director or his/her designee, as necessary to (1) comply with specific judicial or ders; (2) based on the recommendation of on-site medical personnel utilizing their clinical judgment; or (3) as may be required by other circumstances.
B. The identities of personnel considered for and/or selected to perform death sentence related func tions, any documentation establishing their qualifi cations and the identities of personnel participating in federal judicial executions or training of such ju dicial executions shall be protected from disclosure to the fullest extent permitted by law.
C. The lethal substances to be utilized in federal lethal injections shall be Sodium Pentothal, (thiopental); Pancuronium Bromide and Potassium Chloride.
D. Not less than fourteen (14) days prior to a sched uled execution, the Director or designee, in conjunc tion with the United States Marshall Service, shall make a final selection of qualified personnel to serve as the executioner(s) and their alternates. See BOP Execution Protocol, Chap. 1, §§ III (F) and IV (B) & (E). Qualified personnel shall have necessary training or experience in the specific function they will perform in implementing the federal death sen tence. Any documentation establishing the qualifi cations, including training, of such personnel shall be maintained by the Director or designee.
E. The Director or designee shall appoint a senior level Bureau employee to assist the United States Mar shal in implementing the federal death sentence. The Director or designee shall appoint an additional senior level Bureau employee to supervise the activ ities of personnel preparing and administering the lethal substances.
F. The lethal substances shall be prepared by qualified personnel in the following manner unless otherwise directed by the Director, or designee, on the recom mendation of the on-site medical personnel. The lethal substances shall be placed into four sets of numbered and labeled syringes. Two of the sets of syringes are used in the implementation of the death sentence and two sets are available as a backup.
G. Approximately thirty (30) minutes prior to the scheduled implementation of the death sentence, the condemned individual will be escorted into the execution room. The condemned individual will be restrained to the execution table. The leads of a cardiac monitor will be attached by qualified per sonnel. A suitable venous access line or lines will be inserted and inspected by qualified personnel and a slow rate flow of normal saline solution begun.
H. Lethal substances shall be administered intrave nously. Venous catheterization of the fermoral vein is the preferred access method. The Director or designee may approve a different method of venous access (1) based on the training and experience of personnel establishing the intravenous access; (2) to comply with specific orders of federal courts; or (3) based upon a recommendation from qualified personnel available at the execution facility.
When venous access is acquired through the femoral vein (accessed near the groin), a set of syringes will consist of:
Syringe # 1 contains 5.0 grams of Sodium Pentothal in 10 ccs of diluent,
Syringe # 2 contains 60 ccs of saline flush,
Syringe # 3 contains 120 milligrams of Pancuro nium Bromide,
Syringe # 4 contains 120 milligrams of Pancuro nium Bromide,
Syringe # 5 contains 60 ccs of saline flush,
Syringe # 6 contains 120 mEq of Potassium Chlo- ride and
Syringe # 7 contains 120 mEq of Potassium Chlo- ride.
When venous access is acquired through a periph eral vein, a set of syringes will consist of:
Syringe # 1 contains 1.25 grams of Sodium Pento thal in 50 ccs of diluent,
Syringe # 2 contains 1.25 grams of Sodium Pento thal in 50 ccs of diluent,
Syringe # 3 contains 1.25 grams of Sodium Pento thal in 50 ccs of diluent,
Syringe # 4 contains 1.25 grams of Sodium Pento thal in 50 ccs of diluent,
Syringe # 5 contains 60 ccs of saline flush,
Syringe # 6 contains 120 milligrams of Pancuro nium Bromide,
Syringe # 7 contains 120 milligrams of Pancuro nium Bromide,
Syringe # 8 contains 60 ccs of saline flush,
Syringe # 9 contains 120 mEq of Potassium Chlo ride and
Syringe # 10 contains 120 mEq of Potassium
Chloride.
Each syringe will be administered in the order set forth above when directed by supervisory person nel.
If peripheral venous access is utilized, two separate lines shall be inserted in separate locations and de termined to be patent by qualified personnel. A flow of saline shall be started in each line and ad ministered at a slow rate to keep the line open. One line will be used to administer the lethal substances and the second will be reserved in the event of the failure of the first line. Any failure of a venous ac cess line shall be immediately reported to the on- site medical personnel and the Director's designee. The Director's designee shall take steps consistent with paragraph L below.
I. At the direction of the U.S. Marshal, the flow of le thal substances shall be initiated and controlled by qualified personnel. The first lethal substance (So dium Pentathol) will be administered followed by saline flush.
Lethal substances will be administered into two identical sets of IV lines, one which is connected to the condemned individual and the other into a dis posal container in the execution room. The person nel administering the lethal substances shall not be informed as to which line is connected to the con demned individual.
J. After the first lethal substance has rendered the condemned individual unconscious as determined by qualified personnel, BOP supervisory personnel will direct personnel to administer the remaining lethal substances (Pancuronium Bromide and Potassium Chloride). The fact, time and order of administra tion of each substance shall be documented and the documentation maintained. The condemned individ ual's consciousness will be monitored by qualified personnel.
K. In the event that death of the condemned individual has not occurred within five minutes after comple tion of the administration of the second syringe of Potassium Chloride, personnel shall proceed as out lined in paragraph L.
L. If at any time during the federal death penalty procedure a member of the execution team be comes aware of a situation not contemplated in this procedure, the team member should advise a supervisory BOP team member who shall forth with advise the Director's on-site designee. The Director's on-site designee, after consulting with the United States Marshal, may direct that the procedure be interrupted, the curtains to the wit ness viewing rooms be closed, and if necessary, for witnesses to be removed from the facility. A complete assessment of the situation may be done, including if necessary, input from the on- site medical personnel. After consultation with appropriate personnel, a decision will be made to re-commence the procedure from the beginning, to re-commence the procedure from the point of its interruption, or to re-commence the proce dure from the beginning at a different time and/ or date.