Glossip v. Gross
576 U. S. ____ (2015) (2015)
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Rule of Law:
To succeed on an Eighth Amendment method-of-execution claim, a prisoner must establish that the state's protocol creates a demonstrated risk of severe pain and that this risk is substantial when compared to a known and available alternative method of execution.
Facts:
- Oklahoma historically used a three-drug lethal injection protocol with sodium thiopental, a barbiturate that induces a deep coma.
- Due to pressure from anti-death-penalty advocates, pharmaceutical companies stopped supplying sodium thiopental and its effective replacement, pentobarbital, to state corrections departments.
- Unable to acquire these barbiturates, Oklahoma adopted a new protocol using midazolam, a sedative, as the first drug, followed by a paralytic agent and potassium chloride.
- In April 2014, Oklahoma used this new protocol to execute Clayton Lockett. After being declared unconscious, Lockett writhed, spoke, and appeared to be in pain before eventually dying.
- An investigation into Lockett's execution concluded that the primary cause of the problems was a failed IV line, not the drug's efficacy.
- Following the investigation, Oklahoma revised its protocol, increasing the midazolam dosage from 100mg to 500mg and adding new safeguards to ensure proper IV placement and monitoring of consciousness.
- Richard Glossip and other inmates on Oklahoma's death row were scheduled to be executed using this revised 500mg midazolam protocol.
Procedural Posture:
- Twenty-one Oklahoma death row inmates, including Richard Glossip, filed a lawsuit in the U.S. District Court for the Western District of Oklahoma against state officials, challenging the state's new lethal injection protocol under 42 U.S.C. § 1983.
- Four of the inmates, whose executions were imminent, filed a motion for a preliminary injunction to halt their executions.
- The District Court held a three-day evidentiary hearing and denied the motion for a preliminary injunction, finding the inmates were not likely to succeed on the merits of their Eighth Amendment claim.
- The inmates appealed the denial of the preliminary injunction to the U.S. Court of Appeals for the Tenth Circuit.
- The Tenth Circuit affirmed the District Court's decision.
- The Supreme Court of the United States granted the inmates' petition for a writ of certiorari to review the Tenth Circuit's decision.
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Issue:
Does Oklahoma's lethal injection protocol, which uses midazolam as the first drug in a three-drug combination, violate the Eighth Amendment's prohibition on cruel and unusual punishment by creating a substantial risk of severe pain?
Opinions:
Majority - Justice Alito
No, Oklahoma's lethal injection protocol does not violate the Eighth Amendment. To prevail on a method-of-execution claim, prisoners must meet a two-part test: they must prove both that the current method poses a substantial risk of severe pain and that a known and available alternative exists that is less risky. The prisoners failed on both grounds. First, they did not identify a known and available alternative, as the barbiturates they suggested (sodium thiopental and pentobarbital) are unobtainable by Oklahoma. Second, the District Court's factual finding that a 500mg dose of midazolam is highly likely to render an inmate insensate to pain was not clearly erroneous. The Court must defer to the trial court's assessment of conflicting expert testimony, and the prisoners failed to carry their burden to definitively prove that midazolam is ineffective.
Concurring - Justice Scalia
I agree with the majority that the protocol does not violate the Eighth Amendment. I write to respond to Justice Breyer's call to abolish the death penalty. The death penalty is not unconstitutional because the Constitution explicitly contemplates it in the Fifth Amendment. The arguments that capital punishment is unreliable, arbitrary, and subject to excessive delays are flawed and represent an attempt by a judicial minority to substitute their own evolving standards of decency for the will of the people, who have repeatedly upheld capital punishment through the democratic process.
Concurring - Justice Thomas
I agree that the petitioners' claim fails. The Eighth Amendment historically prohibits only those methods of execution 'deliberately designed to inflict pain,' which was not alleged here. The Court's modern precedents have wrongly turned federal courts into boards of inquiry for the 'best practices' of execution. Justice Breyer's dissent, which relies on academic studies to argue the death penalty is arbitrary, disrespects the role of the jury, which is better situated than legal elites to make the moral judgment between life and death. The horrific nature of the petitioners' crimes demonstrates that the death penalty is reserved for the 'worst of the worst.'
Dissenting - Justice Sotomayor
Yes, Oklahoma's protocol violates the Eighth Amendment. The majority errs by deferring to the District Court's clearly erroneous factual finding, which credited the scientifically unsupported and implausible testimony of the state's single expert witness. It further errs by inventing a 'wholly novel requirement' that prisoners must prove the availability of an alternative means for their own execution. This rule is absurd; a barbarous punishment does not become constitutional simply because no other method is available. The prisoners presented ample evidence that midazolam cannot maintain unconsciousness in the face of the torturous pain caused by the second and third drugs, leaving them exposed to the chemical equivalent of being burned at the stake.
Dissenting - Justice Breyer
Yes, the protocol is unconstitutional, and I join Justice Sotomayor's dissent. However, this case demonstrates that it is time to ask a more fundamental question: whether the death penalty itself violates the Constitution. Forty years of experience shows that capital punishment is unconstitutional due to three fundamental defects: (1) its serious unreliability, evidenced by the number of death-row exonerations; (2) its arbitrary application, which is influenced by race, gender, and geography rather than the egregiousness of the crime; and (3) the unconscionably long delays that undermine its penological purposes and constitute a cruel punishment in themselves. As a result of these defects, most of the United States has abandoned its use, making it an 'unusual' punishment.
Analysis:
This decision significantly strengthens the legal hurdles for inmates challenging a state's method of execution. By solidifying the 'known and available alternative' requirement from the Baze plurality as a mandatory element of the claim, the Court effectively shields states from Eighth Amendment challenges that arise from the unavailability of preferred execution drugs. This ruling shifts a substantial burden onto the condemned, requiring them not only to prove that their execution will be torturous but also to provide the state with a feasible, less painful alternative. The decision has been criticized for potentially allowing states to use untested or less effective drugs when established ones become unavailable, insulating these new protocols from effective judicial review.
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