Lethal Injection Cocktail Approved in Glossip v. Gross

On June 29, 2015, the U.S. Supreme Court ruled, by a vote of 5-4, that Oklahoma’s lethal injection protocol does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The case, Glossip v. Gross, was one of the most significant criminal law cases of the 2014-2015 Term and the first death penalty case the Roberts Court has considered since 2008.

The Facts of the Case

The state of Oklahoma uses a three-drug cocktail in its lethal injection executions. The first drug  — midazolam — is supposed to render the inmate unconscious and prevent the inmate from experiencing excruciating pain from the administration of the second and third drugs, which paralyze the inmate and then stop the heart. As noted in a prior post, midazolam was used in several botched executions, including one widely publicized incident in which the prisoner began to talk and move around after being declared unconscious. States have been forced to find alternative drugs to use for lethal injections after pharmaceutical companies stopped producing used medications under pressure from anti-death penalty groups.

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 rejected the challenges, and one of the petitioners has already been executed. The Supreme Court delayed the remaining executions pending the resolution of the case.

The Legal Background

The text of 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.”

Despite numerous challenges, the Supreme Court has held that capital punishment generally does not constitute unconstitutional cruel and unusual punishment. In its 2008 decision in Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court rejected a similar challenge to the state of Kentucky’s lethal injection procedures. The Court 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 Court’s Decision

The majority held that the death-row inmates failed to establish that the use of midazolam violates the Eighth Amendment because it fails to render a person insensate to pain. Justice Samuel Alito authored the majority opinion, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas.

In reaching its decision, the majority found that the inmates failed to identify a viable alternative that entails a lesser risk of pain. The Court further rejected the petitioners’ argument that they should not be required to do so. As explained by the Court:

[The Petioners] have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows.

The majority also found that the death-row inmates were unable to establish that the use of midazolam in lethal injections is “sure or very likely to result in needless suffering.” As Justice Alito further noted, “While most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

The Dissents

Justice Sonia Sotomayor wrote the main dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. Justice Sotomayor announced her dissent from the bench, indicating the degree to which she disagreed with the majority.

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” Justice Sotomayor wrote. “But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”

Justice Breyer also read from his dissent, which Justice Ginsburg joined. In addition to criticizing the majority’s decision, Justice Breyer questioned the overall use of capital punishment, suggesting that all methods of execution may violate the Eighth Amendment.

“Rather than try to patch up the death penalty’s legal wounds one at a time,” Justice Breyer wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”