Glossip et al. v. Gross et al.


Prisoners sentenced to death in the State of Oklahoma filed an action in federal court, contending that the method of execution now used by the State violated the Eighth Amendment because it created an unacceptable risk of severe pain. They argued that midazolam, the first drug employed in the State’s current three drug protocol failed to render the person insensate to pain.

After Gregg v. Georgia, 428 U. S. 153 (1976) reaffirmed that the death penalty did not violate the Constitution, some States once again sought a more humane way to carry out death sentences. They eventually adopted lethal injection. Oklahoma adopted lethal injection in 1977 and it eventually settled on a protocol that called for the use of three drugs: (1) sodium thiopental, a fast-acting barbiturate sedative that induces a deep, coma like unconsciousness when given in the amounts used for lethal injection,(2) a paralytic agent, which inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration, and (3) potassium chloride, which interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. By 2008, at least 30 of the 36 States that used lethal injection employed that particular three-drug protocol.

The Supreme Court has long recognised that because it is settled that capital punishment is constitutional, it necessarily follows that there must be a constitutional means of carrying it out. And because some risk of pain is inherent in any method of execution, it had held that the Constitution does not require the avoidance of all risk of pain. Baze v. Rees, 553 U. S. 35 (2008) cleared any legal obstacle to use of the most common three-drug protocol that had enabled States to carry out the death penalty in a quick and painless fashion.  But a practical obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences. The sole American manufacturer of sodium thiopental, the first drug used in the standard three-drug protocol, was persuaded to cease production of the drug. After other efforts to procure sodium thiopental proved unsuccessful, States sought an alternative, and they eventually replaced sodium thiopental with pentobarbital, another barbiturate. Before long, however, pentobarbital also became unavailable. Anti-death-penalty advocates lobbied the Danish manufacturer of the drug to stop selling it for use in executions. That manufacturer opposed the death penalty and took steps to block the shipment of pentobarbital for use in executions in the United States.

Unable to acquire either sodium thiopental or pentobarbital, some States turned to midazolam, a sedative in the benzodiazepine family of drugs. In 2014, Oklahoma also substituted midazolam for pentobarbital as part of its three-drug protocol. Oklahoma already used this three-drug protocol twice: to execute Clayton Lockett in April 2014 and Charles Warner in January 2015. (Warner was one of the four inmates who moved for a preliminary injunction in the present case.)

The Lockett execution caused Oklahoma to implement new safety precautions as part of its lethal injection protocol. When Oklahoma executed Lockett, its protocol called for the administration of 100 milligrams of midazolam, as compared to the 500 milligrams that are currently required. As Lockett’s execution presented difficulty in administering the drugs, an investigation into the Lockett execution was conducted. The investigation recommended several changes to Oklahoma’s execution protocol, and Oklahoma adopted a new protocol. That protocol allow the Oklahoma Department of Corrections to choose among four different drug combinations. The option that Oklahoma planned to use to execute petitioners calls for the administration of500 milligrams of midazolam followed by a paralytic agent and potassium chloride. The protocol also include procedural safeguards to help ensure that an inmate remains insensate to any pain caused by the administration of the paralytic agent and potassium chloride.

After holding an evidentiary hearing, the District Court denied prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam was ineffective. The Court of Appeals for the Tenth Circuit affirmed. 776 F. 3d 721. The Court of Appeals explained that Supreme Court’s decision in Baze required a plaintiff challenging a lethal injection protocol to demonstrate that the risk of severe pain presented by an execution protocol was substantial when compared to the known and available alternatives. And it agreed with the District Court that petitioners had not identified any such alternative.

The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” The controlling opinion in Baze outlined what a prisoner must establish to succeed on an Eighth Amendment method-of-execution claim. Baze involved a challenge by Kentucky death row  inmates to that State’s three-drug lethal injection protocol of sodium thiopental, pancuronium bromide, and potassium chloride. The inmates conceded that the protocol, if properly administered, would result in a humane and constitutional execution because sodium thiopental would render an inmate oblivious to any pain caused by the second and third drugs. But they argued that there was an unacceptable risk that sodium thiopental would not be properly administered. The inmates also maintained that a significant risk of harm could be eliminated if Kentucky adopted a one-drug protocol and additional monitoring by trained personnel.

The controlling opinion in Baze first concluded that prisoners couldnot successfully challenge a method of execution unless they establish that the method presents a risk that is “‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” (quoting Helling v. McKinney, 509 U. S. 25(1993)). To prevail on such a claim, there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevented prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ The controlling opinion also stated that prisoners couldnot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative. Instead, prisoners must identify an alternative that is “feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” The controlling opinion summarized the requirements of an Eighth Amendment method-of-execution claim: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. And he must show that the risk is substantial when compared to the known and available alternatives.”

The preliminary injunction posture of the present case thus required petitioners to establish a likelihood that they can establish both that Oklahoma’s lethal injection protocol creates a demonstrated risk of severe pain and that the risk was substantial when compared to the known and available alternatives. In the present case, petitioners’ failed to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution. In fact numerous courts have concluded that the use of midazolam as the first drug in a three-drug protocol was likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride.

Petitioners further argued that even if midazolam was powerful enough to induce unconsciousness, it was too weak to maintain unconsciousness and insensitivity to pain once the  second and third drugs were administered. Second, while conceding that the 500-milligram dose of midazolam was much higher than the normal therapeutic dose, they contended that this fact was irrelevant because midazolam had a “ceiling effect”—that is, at a certain point, an increase in the dose administered would not have any greater effect on the inmate. But the Supreme Court held that the petitioners provided little probative evidence on the point, and the speculative evidence that they did presented to the District Court did not come close to establishing that its factual findings were clearly erroneous. The judgment of the Court of Appeals for the Tenth Circuit was thus affirmed.