When an inmate alleges that both his original and later-imposed punishments for the same crime violate the Eighth Amendment but the later-imposed punishment will cause greater pain and suffering, does the Ex Post Facto Clause require the inmate to also show the later-imposed punishment is 'sure or very likely' less humane?

QUESTIONS PRESENTED When David Miller took the life of Lee Standifer, the maximum punishment which could be inflicted under Tennessee law was death by electrocution. Under Tennessee’s electrocution protocol, it takes a minimum of six minutes to declare death. The punishment is now so unusual that no state authorizes the electric chair as the primary execution method and no other country in the world permits executions by electrocution. For decades it has not been inflicted on any person without consent. Electrocution is so cruel that the two courts to fully examine the pain, suffering, and mutilation it creates found it is a cruel and unusual punishment.! On July 5, 2018, Tennessee implemented an execution method harsher than electrocution; a three-drug protocol utilizing midazolam—a drug that has no painkilling properties. Respondents do not dispute this contention, nor the following facts regarding the effects of the new lethal injection protocol. The first drug, midazolam, causes an inmate’s lungs to fill with fluid and produces a sensation of drowning. The second drug, vecuronium bromide, paralyzes an inmate causing a feeling of being buried alive. The third drug, potassium chloride, signals nerves to ignite and creates an experience of being burned alive as it courses through the circulatory system. It eventually depolarizes the heart muscles which deprives the ! State v. Mata, 745 N.W.2d 229 (Neb. 2008); Dawson v. State, 554 S.E.2d 187 (Ga. ; 2001). F brain of oxygen and causes death. The only execution using this protocol in Tennessee lasted 20 minutes. Under Tennessee law, the presumptive execution method is the three-drug midazolam protocol, and Defendants notified Miller it would be used on him.2 Miller could only avoid the greater punishment of the three-drug protocol (which violates the Ex Post Facto Clause) by consenting to electrocution, his original punishment, which violates the Eighth Amendment. Miller succumbed to the threat of 20 minutes of severe pain and suffering. In a message to the Warden marked “URGENT,” Miller wrote on the Warden’s letter that said Miller would be executed under the three-drug protocol: “I waive lethal injection and wish to be electrocution [sic].” The court below held Miller voluntarily waived his right to challenge the constitutionality of electrocution under the Eighth Amendment. It also found Miller failed to demonstrate a substantial likelihood of success on his Ex Post Facto claim and Eighth Amendment challenge to electrocution. The following questions are presented: (1) When an inmate alleges that both his original and later-imposed punishments for the same crime violate the Eighth Amendment but the later-imposed punishment will cause greater pain and suffering, does the Ex Post Facto Clause require the inmate to also show the later-imposed punishment is “sure or very likely’ less humane?” (2) Is a waiver of Eighth Amendment rights invalid when induced by a State’s threat to impose a harsher punishment than allowed at the time of the crime? 2 See Tenn. Code Ann. § 40-23-114. li