Glossip v. Gross
Issue(s): Cruel & Unusual Punishment, Lethal Injection, Death Penalty
Background:
- Oklahoma has effectuated its death penalty for many years by injecting three different chemical compounds into the inmate’s cardiovascular system. Historically, the procedure has consisted of an initial injection of sodium thiopental, a barbiturate that induces deep unconsciousness. Next, the inmate is injected withpancuronium bromide, which prohibits breathing by paralyzing the diaphragm. The third injection consists of potassium chloride, which causes cardiac arrest by blocking electrical signals to the heart. Oklahoma, however, has not been able to obtain any sodium thiopental for its executions since approximately 2010.For a period of time, Oklahoma used pentobarbital, a barbiturate that also became unavailable to Oklahoma for use in executions.Oklahoma then started using midazolam in early 2014.Midazolam is a benzodiazepine, which is a sedative outside of the barbiturate family of drugs typically used in Oklahoma’s lethal injection protocol. Oklahoma intended to use midazolam as the first injection in its lethal injection protocol in order to render the inmate unconscious before the other two drugs were administered.
- On April 29, 2014, Oklahoma executed its first inmate using midazolam as part of the lethal injection protocol. The execution team failed to properly establish intravenous (“IV”) access to the right femoral vein of the inmate. As a result, the midazolam did not enter into the inmate’s blood stream but rather leaked into the tissue near the injection site. Not noticing the swelling because the team had covered the IV access point with a sheet, the team announced that the inmate was unconscious and began administering the remaining two drugs. However, the inmate regained consciousness and started speaking, saying “something is wrong” and the “drugs aren’t working.” The execution team again attempted to inject the inmate’s femoral vein, but determined that the inmate did not have any viable veins to continue with the protocol; the team ended the execution approximately thirty-three minutes after the midazolam had first been injected. Forty-three minutes after the initial injection, the inmate died. An autopsy revealed that, despite the midazolam pooling, the inmate had more midazolam in his bloodstream than necessary to incapacitate the average person. Furthermore, the autopsy determined that there were traces of all three drugs throughout the inmate’s body.
- Following the aforementioned lethal injection event, Oklahoma updated its lethal injection procedure. The new procedure provides more detailed guidance to the teams administering lethal injections in terms of establishing IV access to an inmate’s cardiovascular system, administering the chemical compounds, and dealing with unexpected circumstances or mistakes. Notably, the new procedures also provide the Director of the Oklahoma Department of Corrections with four options of tripartite drug combinations. The Director is required to notify the inmate in writing, ten days before the execution date, of the drug combination that will be used for the inmate’s execution.
- The Director notified four death-row inmates—Charles Warner, Richard Glossip, John Grant, and Benjamin Cole—that they will receive the same tripartite drug combination, with midazolam as the first component, used during the April 29, 2014 execution.These four plaintiffs, alleging that the drug combination will violate their Eighth Amendment right against cruel and unusual punishment, initiated a lawsuit against the Director in the United States District Court for the Western District of Oklahoma(“district court”) on June 25, 2014. On December 22, 2014, the district court denied the plaintiffs’ motion for a preliminary injunction, a decision the plaintiffs appealed to the Tenth Circuit Court of Appeals (“Tenth Circuit”) on the following day. On appeal, the Tenth Circuit affirmed the district court’s decision.
- The plaintiffs subsequently sought a writ of certiorari from theSupreme Court of the United States to challenge the Tenth Circuit’s decision. While the plaintiffs’ petition for certiorari was pending, one of the plaintiffs, Warner, was executed by Oklahoma.
- The Supreme Court granted certiorari on January 23, 2015 to determine whether lethal injection protocols that can potentially expose the inmate to a painful and lingering death are constitutional, whether the Baze standard applies to stays of execution, and whether inmates have to present alternative available drug protocols as a requirement to challenge the constitutionality of the state’s current execution protocol.
- In a 5-4 decision, the Supreme Court ruled against the petitioners, saying that there was insufficient evidence that the use of midazolam as the initial drug in the execution protocol entailed a substantial risk of severe pain, compared to known and available alternatives, in violation of the Eighth Amendment. Because capital punishment has been held to be constitutional and some risk of pain is inherent in execution, the Eighth Amendment does not require that a constitutional method of execution be free of any risk of pain. Instead, a successful Eighth Amendment method-of-execution claim must identify a reasonable alternative that presents a significantly lower risk of pain, which the petitioners in this case were unable to do. Because the district court is entitled to a high degree of deference in its determination, the petitioners would have to prove that the district court’s factual findings were clearly erroneous in order for the Court to overturn the ruling. In this case, the medical testimony supports the district court’s determination that the use of midazolam did not create a substantial risk of severe pain, particularly in light of the safeguards the state imposed on the process.
576 U.S. 863
Glossip v. Gross (2015, April 29). Retrieved July 14, 2015, from Cornell University Law School.
Glossip v. Gross (2015, April 29). Retrieved July 14, 2015, from http://www.oyez.org/cases/2010-2019/2014/2014_14_7955
Glossip v. Gross (2015, April 29). Retrieved July 14, 2015, from Cornell University Law School.
Glossip v. Gross (2015, April 29). Retrieved July 14, 2015, from http://www.oyez.org/cases/2010-2019/2014/2014_14_7955