Glossip v. Gross

PETITIONER:Richard E. Glossip, et al.
RESPONDENT:Kevin J. Gross, et al.
LOCATION: Oklahoma State Penitentiary

DOCKET NO.: 14-7955
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 576 US (2015)
GRANTED: Jan 23, 2015
ARGUED: Apr 29, 2015
DECIDED: Jun 29, 2015

Robin C. Konrad – for the petitioners
Patrick R. Wyrick – for the respondents

Facts of the case

On April 29, 2014, Oklahoma executed Clayton Lockett using a three-drug lethal injection procedure. The procedure went poorly; Lockett awoke after the injection of the drugs that were supposed to render him unconscious and did not die until about 40 minutes later. Oklahoma suspended all subsequent executions until the incident could be investigated and subsequently adopted a new protocol that placed a higher emphasis on making sure the injection was done properly. The new protocol also allowed for four alternative drug combinations, one of which used midazolam as the initial drug, as did the protocol used in the Lockett execution.

Charles Warner and 20 other death row inmates sued various state officials and argued that the use of midazolam as the initial drug in the execution protocol violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Warner and three other plaintiffs also moved for a preliminary injunction to prevent Oklahoma from moving forward with their executions. A federal district court denied the injunction and held that the plaintiffs had not provided sufficient evidence that they would prevail on the merits of their claims and that they had failed to identify a “known and available” alternative to the drug in question. The U.S. Court of Appeals for the Tenth Circuit affirmed.

On January 15, 2015, the Supreme Court declined to grant the petition for a writ of certiorari, and Charles Warner was subsequently executed. Richard E. Glossip and the other two death row inmates petitioned the Court again.


Does Oklahoma’s use of midazolam as the initial drug in the execution protocol, the same initial drug used in Clayton Lockett’s execution, violate the Eighth Amendment’s prohibition against cruel and unusual punishment?

Media for Glossip v. Gross

Audio Transcription for Opinion Announcement – June 29, 2015 (Part 2) in Glossip v. Gross
Audio Transcription for Opinion Announcement – June 29, 2015 (Part 3) in Glossip v. Gross
Audio Transcription for Opinion Announcement – June 29, 2015 (Part 4) in Glossip v. Gross
Audio Transcription for Oral Argument – April 29, 2015 in Glossip v. Gross

Audio Transcription for Opinion Announcement – June 29, 2015 (Part 1) in Glossip v. Gross

John G. Roberts, Jr.:

Justice Alito has our opinion this morning in case 14-7955 Glossip v. Gross.

Samuel A. Alito, Jr.:

This death penalty case presents two questions.

One, is a legal question, whether a prisoner who challenges the constitutionality of a State’s method of carrying out a death sentence must identify an available alternative method that involves a substantially lesser risk of pain.

The other is a factual question, whether a particular drug, called Midazolam, that is used by the State of Oklahoma in carrying out the death sentence will render a prisoner unable to feel pain.

The death penalty presents a controversial and emotional public policy issue.

Many people opposed the death penalty on moral, religious, or pragmatic grounds, but the death penalty was an accepted form of punishment at the time of the adoption of the Constitution and the Bill of Rights, and this Court has affirmed its constitutionality.

For many years after the nation’s founding, executions were generally carried out by hanging, but States have continually searched for the most humane way of carrying out a death sentence.

Beginning in the late 19th Century many States adopted electrocution.

In the early 20th Century some States began to use lethal gas.

Following this Court’s decision in Gregg v. Georgia in 1976 which reaffirmed the constitutionality of capital punishment, many States including the State of Oklahoma turned to lethal injection.

Like many other States Oklahoma used three drugs that were administered in sequence.

The first Sodium Thiopental induced the coma like state and the second and third drugs then brought about death.

States used this method for some time, but eventually Anti-Death Penalty Activists successfully pressured the manufacturer of Sodium Thiopental to stop producing the drug.

States then switched to a similar drug called pentobarbital, but the foreign manufacturer of this drug was then persuaded to block its shipment to this country for use in executions.

Oklahoma and some other states then turned to Midazolam as a substitute.

After Midazolam made this change, a number of death row inmates brought suit to challenge the constitutionality of the State’s method of execution.

Four of those inmates filed a motion for a preliminary injunction against the use of Midazolam.

All of these men had been convicted of exceptionally heinous murders.

Charles Warner murdered an 11-month-old girl after anally raping her.

Benjamin Cole’s 9-month-old daughter would not stop crying, he then bent her body backwards and snapped her spine in half.

John Grant had been sentenced to imprisonment for 130 years. He pulled a prison employee into a mop closet and repeatedly stabbed her with a shank.

Richard Glossip hired a killer who beat a sleeping victim to death with a baseball bat.

These four men argued that Oklahoma’s method of execution violates the Eighth Amendment because it involves an unacceptable risk of pain.

In particular they disputed the efficacy of Midazolam.

The District Court conducted a three-day evidentiary hearing and heard testimony from experts on both sides.

The District Court then rejected the prisoner’s argument as both legally and factually flawed.

The Court of Appeals for the Tenth Circuit affirmed on two independent grounds and we agree with the Tenth Circuit on both counts.

First, petitioners failed to identify an available alternative method of execution that involves a substantially smaller risk of severe pain.

Seven years ago in the decision called Baze v. Rees, we identify the requirements of an Eighth Amendment method of execution claim.

We held that a prisoner challenging a particular method of execution must show that this method creates a risk of severe pain that is substantial when compared to a known and available alternative method.

Samuel A. Alito, Jr.:

This requirement follows from the nature of a method of execution claim, as opposed to a claim that capital punishment is unconstitutional, no matter how it is administered.

When a prisoner simply attacks one method of capital punishment, the court must proceed on the assumption that there is at least some available alternative method that satisfies the Eighth Amendment.

Therefore the prisoner is required to identify such a method so that the court can compare the risk of pain that this acceptable method entails with the risk inherent in the method that the State has selected.

Petitioners in this case did not identify any such alternative when this case was in the District Court and they have not done so to date.

This dooms their claim.

When a prisoner argues that the method chosen by a State is unconstitutional but refuses to identify an available alternative, the prisoner is arguing in effect that capital punishment is unconstitutional per se.

That is not really a method of execution argument, and must therefore be rejected.

In this case Justices Breyer and Ginsburg announce that in their view the death penalty is unconstitutional no matter how it is administered.

And therefore petitioner’s failure to identify an acceptable alternative to Oklahoma’s method is immaterial to them.

Justice Sotomayor’s dissent joined by three other justices suggest that it might be unconstitutional if a State after adopting lethal injection as its method of execution were to go back to a more “primitive method.”

This dissent then argues that the lethal injection protocol, now used by Oklahoma, is unconstitutional even though there has been no showing that Oklahoma has any practical alternative to the use of Midazolam in carrying out executions by lethal injection.

Readers can judge for themselves how much distance there is between the position taken by Justices Breyer and Ginsburg and the position taken in Justice Sotomayor’s dissent.

In any event because petitioners have not identified an available alternative that involves a substantially lesser risk of pain, their method of execution claim fails under Baze.

The Tenth Circuit rejected petitioner’s method of execution claim for a second independent reason, namely, that the District Court did not commit clear error when it found as a fact that the dose of Midazolam called for in the Oklahoma protocol will render a prisoner insensate to pain.

This Court rarely reviews a finding of fact particularly when that finding has already been reviewed and sustained by a court of appeals.

But the Court granted review of this factual question and we thus decide it.

A District Court’s finding of fact cannot be overturned by an Appellate Court simply because the Appellate Court would have made a different finding.

The District Court’s finding of fact must be accepted unless it is clearly erroneous and that demanding test is not met here.

At the evidentiary hearing in the District Court the State’s expert the Dean of Auburn University School of Pharmacy explained that a massive 500 mg dose of Midazolam, which is many times higher than a normal therapeutic dose, is sufficient to render a person unable to feel pain.

After the hearing the District Court made a finding to this effect, and that court was not alone in making such a finding.

Numerous other courts have held hearings about Midazolam and have also found that this drug renders inmates insensate to pain.

Petitioners and Justice Sotomayor’s dissent take issue with the testimony of the State’s expert.

I will not go into all these technical arguments which are addressed in the opinions.

But I will mention what appears to be the dissent’s principal point, namely that it is irrelevant that Oklahoma administers a huge dose of Midazolam because the drug has a ceiling effect, that is, at a certain point increasing the dosage stops having any greater effect on the inmate.

The District Court did not err by rejecting this argument.

For all the talk about ceiling effects, petitioner’s experts did not show that Midazolam’s ceiling effect occurs below the level of a 500 mg dose much less that it occurs before the drug renders a person insensate to pain.

The District Court reviewed all the evidence presented and concluded based on the record that Midazolam does not present an unconstitutional risk of severe pain.

There is no basis to reject that factual conclusion.

Petitioners make much of the fact that during the first execution in Oklahoma using a lower dose of Midazolam than is at issue here, the prisoner appeared to regain consciousness during the procedure.

After this disturbing incident, the State halted executions and conducted an investigation.

Samuel A. Alito, Jr.:

The investigation concluded that the problem resulted from the failure to establish a proper IV line.

The State then adopted new procedures to prevent a repetition of this problem and to make sure that a prisoner is fully unconscious before the second and third drugs are administered.

The State has conducted an execution since that time without the occurrence of anything similar.

The same is true of executions using this three drug protocol in another state.

Petitioners and the principal dissent couched their attack on Midazolam in inflammatory terms claiming that it is tantamount to burning a prisoner at the stake, but the evidence simply does not support this rhetoric.

For these two independent reasons petitioner’s Eighth Amendment claim must be rejected.

Justice Scalia has filed a concurring opinion in which Justice Thomas joins.

Justice Thomas has filed a concurring opinion in which Justice Scalia joins.

Justice Breyer has filed a dissenting opinion in which Justice Ginsburg joins, Justice Sotomayor has filed a dissenting opinion in which Justices Ginsburg, Breyer, and Kagan join.