Whether federal courts may direct specific alterations to a state's execution protocol in an as-applied challenge under the Eighth Amendment

QUESTIONS PRESENTED 1. Ifa state’s established method of execution would violate the Eighth Amendment as applied to that inmate, may federal courts direct specific alterations to the state’s execution protocol, in a district court or on appeal, rather than requiring the state to adopt an alternative that does not violate the Eighth Amendment as applied to that inmate? 2. Under Stewart v. LaGrand, 526 U.S. 115 (1999), an inmate choosing a method of execution waives his ability to challenge its constitutionality. The Ninth Circuit, however, continues to hold that an inmate cannot challenge a method of execution unless he is actually subject to it—which, in states that provide an option, means choosing it. Fierro v. Terhune, 117 F.3d 1094, 1104 (9th Cir. 1997). Because an unconstitutional method designated by a state could never be challenged under this combination of rules, do inmates have standing to challenge a method of execution where they have clearly indicated they would choose it if the State offered a constitutional version of it? LIST OF