Glossip v. Gross: Supreme Court Grants Rare Death Penalty Case
Later this term, U.S. Supreme Court will consider its first death penalty case since 2007. The issue in Glossip v. Gross is whether a new sedative used in lethal injections violates the Eighth Amendment to the U.S. Constitution.
The drug at use, in the Glossip v. Gross case — midazolam — was used in several bungled executions, including one widely publicized incident in which the prisoner began speak and move around after being declared unconscious.
The Facts of the Case
The state of Oklahoma uses three drugs in its lethal injection executions, all of which have a specific purpose. The first drug is supposed to render the inmate unconscious so that the prisoner does not experience excruciating pain from the administration of the second and third drugs. Three inmates on death row in that state allege that the use of midazolam as the first drug violates the Eighth Amendment’s ban on cruel and unusual punishments. They specifically maintain that the drug is not supposed to be used as an anesthetic, and is not reliable in achieving a coma-like unconsciousness. The lower courts have rejected the challenges, and one of the petitioners has already been executed. The Supreme Court stayed the remaining executions pending the resolution of the case.
The Legal Background
The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Supreme Court has consistently held that capital punishment is constitutional.
In Baze v. Rees, the Supreme Court last considered lethal injection. It held that, to constitute cruel and unusual punishment, an execution method must present a “substantial” or “objectively intolerable” risk of serious harm. In addition, the Court also held that a state’s refusal to adopt proffered alternative procedures may violate the Eighth Amendment “only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.”
The Issues Before the Court
The Court has agreed to consider several interrelated questions concerning the use of midazolam. They include:
- Whether it is 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, coma-like 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;
- Whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and
- Whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.
The Court is scheduled to hear the case in April and will render a decision by June. Please check back for updates.
CONSTITUTIONAL LAW ARTICLES
SCOTUS Clarifies Appellate Deadlines in Hamer v Neighborhood Housing Services of Chicagoby DONALD SCARINCI on November 23, 2017
The U.S. Supreme Court issued its first full opinion of the October 2017 term in Hamer v Neighborhoo...
Supreme Court Decides Kernan v Cueroby DONALD SCARINCI on November 16, 2017
The U.S. Supreme Court recently decided Kernan v Cuero, 583 U.S. ____ (2017). In its per curium opin...
Lemon v Kurtzman Test for Establishment Clause Violationsby DONALD SCARINCI on November 14, 2017
In Lemon v Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court held that state statutes that provi...
- Establishment ClauseFree Exercise Clause
- Freedom of Speech
- Freedoms of Press
- Freedom of Assembly, and Petitition
- The Right to Bear Arms
- Unreasonable Searches and Seizures
- Due Process
- Eminent Domain
- Rights of Criminal Defendants
Preamble to the Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.