                  Cite as: 586 U. S. ____ (2018)             1

                    SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
      EDMUND ZAGORSKI v. TONY PARKER,

    COMMISSIONER, TENNESSEE DEPARTMENT

           OF CORRECTIONS, ET AL. 

   ON APPLICATION FOR STAY AND PETITION FOR WRIT OF 

   CERTIORARI TO THE SUPREME COURT OF TENNESSEE,

                   MIDDLE DIVISION

          No. 18–6238 (18A376) Decided October 11, 2018

  The application for stay of execution of sentence of death
presented to JUSTICE KAGAN and by her referred to the
Court is denied. The petition for a writ of certiorari is
denied.
  JUSTICE SOTOMAYOR, with whom JUSTICE BREYER joins,
dissenting from denial of application for stay and denial of
certiorari.
  Once again, a State hastens to kill a prisoner despite
mounting evidence that the sedative to be used, midazo-
lam, will not prevent the prisoner from feeling as if he is
“drowning, suffocating, and being burned alive from the
inside out” during a process that could last as long as 18
minutes. Irick v. Tennessee, 585 U. S. ___, ___ (2018)
(SOTOMAYOR, J., dissenting from denial of application for
stay) (slip op., at 1); see also Arthur v. Dunn, 580 U. S.
___, ___ (2017) (SOTOMAYOR, J., dissenting from denial of
certiorari) (slip op., at 2). And once again the State claims
the right to do so under the Eighth Amendment not be-
cause a court has concluded that these risks are over-
blown, but rather because of the “perverse requirement
that inmates offer alternative methods for their own exe-
cutions.” McGehee v. Hutchinson, 581 U. S. ___, ___ (2017)
(SOTOMAYOR, J., dissenting from denial of application for
stay and denial of certiorari) (slip op., at 2); see also Glos-
sip v. Gross, 576 U. S. ___, ___–___ (2015) (slip op., at 13–
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                        SOTOMAYOR, J., dissenting

15). This requirement was legally and morally wrong
when it was promulgated, and it has been proved even
crueler in light of the obstacles that have prevented capi-
tal prisoners from satisfying this precondition. I would
therefore grant a stay of execution and grant petitioner
Edmund Zagorski’s petition for certiorari to consider what
suffices for a prisoner to prove “a known and available
alternative method of execution.” See Glossip, 576 U. S.,
at ___ (slip op., at 13).1
   For several years, Tennessee has provided for the execu-
tion of capital prisoners via a single drug called pentobar-
bital. See Abdur’Rahman v. Parker, No. M2018–01385–
SC–RDO–CV (Sup. Ct. Tenn., Oct. 8, 2018), pp. 3–4.
Pentobarbital, a barbiturate, does not carry the risks
described above; unlike midazolam (a benzodiazepine),
pentobarbital is widely conceded to be able to render a
person fully insensate. See, e.g., Glossip, 576 U. S., at ___
(slip op., at 5).
   In January 2018, Tennessee Department of Corrections
(TDOC) adopted an alternative to pentobarbital: Protocol
B, a three-drug sequence beginning with midazolam (the
drug whose sedative properties are dubious), to be fol-
lowed by vecuronium bromide (to paralyze the prisoner)
and then potassium chloride (to stop the prisoner’s heart).2
——————
   1 The State’s refusal to allow Zagorski’s attorneys to access a tele-

phone during Zagorski’s scheduled execution is also troubling. For
reasons expressed before, I would grant review of this question as well.
See Arthur v. Dunn, 581 U. S. ___, ___–___ (2017) (SOTOMAYOR, J.,
dissenting from denial of application for stay and denial of certiorari)
(slip op., at 1–2).
   2 “The first drug [midazolam] is critical; without it, the prisoner faces

the unadulterated agony of the second and third drugs.” Arthur v.
Dunn, 580 U. S. ___, ___ (2017) (SOTOMAYOR, J., dissenting from denial
of certiorari) (slip op., at 2). This Court in Glossip concluded that a
district court did not clearly err in finding that midazolam could render
a prisoner sufficiently insensate to the excruciating effects of the second
and third drugs. See 576 U. S., at ___ (slip op., at 19). Any confidence
                    Cite as: 586 U. S. ____ (2018)                   3

                      SOTOMAYOR, J., dissenting

No. M2018–01385–SC–RDO–CV, at 4. The pentobarbital
option—Protocol A—remained, meanwhile, in effect. Ibid.
In February 2018, the State set execution dates for several
prisoners, including Zagorski, and Zagorski and others
soon thereafter filed suit challenging Protocol B and point-
ing to Protocol A, pentobarbital, as the available, signifi-
cantly less risky alternative. See id., at 4–5. The State,
however, was noncommittal about pentobarbital’s availa-
bility. At a pretrial hearing in April 2018, as Justice Lee
explained in dissent below, the trial court “zeroed in on
the problem and repeatedly questioned counsel about the
availability of pentobarbital,” emphasizing that an answer
to this question was “ ‘essential.’ ” Id., at 4. “The State’s
response to the trial court’s direct question—‘will [Protocol
A] be available for the August 9th execution?’—was ‘I can’t
answer that question, Your Honor.’ ” Id., at 5.
   Then, “[j]ust a few hours before the parties filed their
trial briefs on July 5, 2018, [TDOC] adopted a revised
execution protocol that abandoned [pentobarbital], leaving
only Protocol B”—the midazolam option. Id., at 4. Trial
commenced a few days later. Working on a highly expe-
dited timeline, the trial court ruled against the prisoners
later that month, concluding that they had failed to prove
the availability of pentobarbital—the very method that
TDOC had retained as Protocol A until just before trial
started.3 See Abdur’Rahman v. Parker, No. 18–183–II(III)
——————
in that conclusion has since eroded in the face of growing contrary
medical evidence and worrisome results from executions themselves.
See, e.g., Abdur’Rahman v. Parker, No. 18–183–II(III) (Ch. Ct. Da-
vidson Cty., Tenn., July 26, 2018), pp. 21–22, 27–28. Because the
opinions below do not defend the use of midazolam on the merits,
midazolam’s inadequacy is not the focus here.
   3 The trial court also concluded that the prisoners’ experts “estab-

lished that midazolam does not elicit strong analgesic effects and the
inmate being executed may be able to feel pain from the administration
of the second and third drugs.” Abdur’Rahman v. Parker, No. 18–183–
II(III), at 21. But it nevertheless concluded, without expressing any
4                       ZAGORSKI v. PARKER

                       SOTOMAYOR, J., dissenting

(Ch. Ct. Davidson Cty., Tenn., July 26, 2018), pp. 2, 34.
The Tennessee Supreme Court affirmed on that ground,
while declining to “address the Plaintiffs’ claim that the
three-drug protocol creates a demonstrated risk of severe
pain.” No. M2018–01385–SC–RDO–CV, at 22.
  The circumstances surrounding Zagorski and his fellow
prisoners’ attempts to prove that pentobarbital was
“available” demonstrate how unfairly this already per-
verse requirement is being applied. For one, the prison-
ers’ ability to prove the drug’s availability was severely
constrained by rules of secrecy surrounding individuals
involved in the execution process. See id., at 3 (Lee, J.,
dissenting); see also Tenn. Code Ann. §10–7–504(h) (2018).
The prisoners were unable to depose individuals with
direct knowledge of the State’s efforts to obtain pentobar-
bital. Nor were the prisoners allowed to learn which
potential sellers the State ostensibly approached to try to
obtain pentobarbital. Short of cold-calling every pharmacy
in the country and asking for pentobarbital, it is anyone’s
guess how the prisoners were supposed to challenge mean-
ingfully the State’s claim that it could not obtain the drug.
Yet they were faulted below for failing to offer “direct
proof.” No. M2018–01385–SC–RDO–CV, at 21.
  Moreover, it is not as if pentobarbital has vanished from
the Earth, for purposes of execution or otherwise. As
Justice Lee noted in dissent, Texas and Georgia have each
used it multiple times in executions this year alone. See
No. M2018–01385–SC–RDO–CV, at 5. Missouri also
appears to be prepared to use it in upcoming executions.
See, e.g., Brief for Respondent in Bucklew v. Precythe, O. T.
2018, No. 17–8151, p. 1. Moreover, what discovery the
——————
countervailing confidence in midazolam’s anesthetic properties, that
this Court “would not find the facts established in this case to violate
the Constitution.” Id., at 22; see also Irick v. Tennessee, 585 U. S. ___,
___–___ (2018) (SOTOMAYOR, J., dissenting from denial of certiorari)
(slip op., at 2–3).
                 Cite as: 586 U. S. ____ (2018)            5

                   SOTOMAYOR, J., dissenting

prisoners did obtain below indicates that roughly 10 of the
100 suppliers that TDOC reached out to in 2017 did have
pentobarbital for sale—just not the number of doses that
the State had requested. No. 18–183–II(III), at 13. And
at least one supplier around this time evidently quoted a
price and discussed a “bulk $ option.” App. to Pet. for
Cert. 197a.
   The trial court found credible the senior TDOC officials
who testified to having delegated a search for pentobarbi-
tal to their subordinates, see No. 18–183–II(III), at 11–12,
and the Tennessee Supreme Court based its affirmance in
significant part on these “credibility determinations,” see
No. M2018–01385–SC–RDO–CV, at 21–22. But these
senior officials were not the individuals who actually
undertook the search for pentobarbital, see id., at 12; the
actual procurers, by contrast, were unavailable to the
prisoners because of the State’s secrecy laws. When the
prisoners tasked with asking the State to kill them anoth-
er way are denied by the State information crucial to
establishing the availability of that other means of killing,
a grotesque requirement has become Kafkaesque as well.
   Such barriers are not the only ways in which prisoners
proposing a more humane means of execution may be
thwarted. In other instances, courts have rejected claims
by petitioners proposing means of execution that are
unavailable under state law. See, e.g., Arthur, 580 U. S.,
at ___ (SOTOMAYOR, J., dissenting from denial of certiora-
ri) (slip op., at 1). Such rejections are likewise troubling,
because they suggest that “all a State has to do to execute
[a person] through an unconstitutional method is to pass a
statute declining to authorize any alternative method,”
id., at ___ (slip op., at 9), and they likewise show the need
for us to address in more detail what Glossip actually
requires. In any event, the prisoners here sought only the
State’s own Protocol A, which the State itself had held out
as a seemingly available method before eliminating it “on
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                  SOTOMAYOR, J., dissenting

the eve of trial.” No. M2018–01385–SC–RDO–CV, at 5
(Lee, J., dissenting). That is hardly an extravagant re-
quest, particularly when the State’s own evidence disclos-
es that there had been opportunities to purchase pento-
barbital both in smaller quantities and in bulk.
  I accordingly would grant Zagorski’s request for a stay
and grant certiorari to address what renders a method of
execution “available” under Glossip. Capital prisoners are
not entitled to pleasant deaths under the Eighth Amend-
ment, but they are entitled to humane deaths. The longer
we stand silent amid growing evidence of inhumanity in
execution methods like Tennessee’s, the longer we extend
our own complicity in state-sponsored brutality. I dissent.
