Term: 2014
Docket: 14-7955
Glossip v. Gross
- Pro
14-7955 GLOSSIP V. GROSS DECISION BELOW: 2015 WL 137627 QUESTION PRESENTED: In Baze v. Rees, 553 U.S. 35 (2008), the Court held that Kentucky's three--drug execution protocol was constitutional based on the uncontested fact that "proper administration of the first drug"-which was a "fast-acting barbiturate" that created "a deep, comalike unconsciousness"-will ensure that the prisoner will not experience the known pain of suffering from the administration of the second and third drugs, pancuronium bromide and potassium chloride. Id. at 44. The Baze plurality established a stay standard to prevent unwarranted last--minute litigation challenging lethal-injection protocols that were substantially similar to the one reviewed in Baze; a stay would not be granted absent a showing of a "demonstrated risk of severe pain" that was "substantial when compared to the known and available alternatives." Id. at 6l. In this case, Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze. However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness. For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures. Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution. Oklahoma's intention to use midazolam to execute the Petitioners raises the following questions, left unanswered by this Court in Baze: Question 1: Is it constitutionally permissible for a state to carry out an execution using a three- drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious. Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze? Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state's lethal-injection protocol, as properly administered, will violate the Eighth Amendment? LOWER COURT CASE NUMBER: 14-6244 CERT. GRANTED 1/23/2015
The U.S. Supreme Court case Glossip v. Gross, 2014, centered around the constitutionality of a lethal injection protocol used in Oklahoma executions. The plaintiffs were death row inmates who argued that the use of midazolam as part of the three-drug cocktail violated their Eighth Amendment rights against cruel and unusual punishment because it failed to render them insensate to pain during execution. The court ruled 5-4 in favor of Oklahoma, stating that the petitioners did not prove that midazolam entailed a substantial risk of severe pain compared to known and available alternatives. Furthermore, they held that states may use this drug for lethal injections until another more effective drug becomes available.
In the dissenting opinion for Glossip v. Gross, Justice Breyer, joined by Justice Ginsburg, argued that it is highly likely that the death penalty violates the Eighth Amendment which prohibits cruel and unusual punishment. They pointed out three fundamental constitutional defects in capital punishment: unreliability (risk of executing innocent people), arbitrariness in application (racial and geographic disparities), and unconscionably long delays between sentencing and execution causing severe suffering to inmates on death row. These issues led them to question whether the death penalty serves any penological purpose such as deterrence or retribution. The justices also criticized their colleagues' decision to uphold Oklahoma's lethal injection protocol despite evidence suggesting a significant risk of severe pain. They called for full briefing on the constitutionality of capital punishment itself rather than focusing narrowly on methods used.
