Glossip v. Gross Page 2

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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

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.