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.
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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.
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