Glossip v. Gross
Issues
- Does a state violate the Eighth Amendment’s ban on cruel and unusual punishment when the state uses a lethal injection protocol where the first drug does not reliably render the prisoner insensate and or unconscious?
- Did Baze v. Rees heighten the standard for obtaining a stay of execution?
- Does a prisoner have to establish the availability of an alternative drug protocol when challenging a lethal injection protocol?
The Supreme Court will consider the following three issues: (1) whether a state violates the Eighth Amendment when the state uses a three-drug protocol for executions, where the first drug does not always relieve the prisoner from pain and or put the prisoner in a deep state of unconsciousness; (2) whether Baze v. Rees is the proper standard for obtaining a stay of execution; and (3) whether a prisoner challenging a state’s lethal injection protocol is required to establish the availability of alternative drugs. See Brief for Petitioner, Richard E. Glossip at i. Glossip contends that midazolam is incapable of reliably rendering prisoners unconscious and creates a substantial risk of harm that violates the Eighth Amendment, that the standard for obtaining a stay of execution should continue to be “a significant possibility of success on the merits” as established in Baze, and that prisoners should not be required to establish the availability of alternative drugs. See id. at 28, 39, 46. Gross counters that using midazolam does not create a substantial risk of harm since it is highly likely to render prisoners unconscious and insensate, that Baze clearly established a heightened stay request standard, and that establishing the availability of alternative drugs is required post-Baze. See Brief for Respondent, Kevin J. Gross at 41, 57–58, 61–62. The Supreme Court’s decision will potentially affect the availability of certain execution methods as well as address the acceptability of lethal injection protocols that potentially result in a lingering and painful death. See Brief of Former State Attorneys General, in Support of Petitioners at 23; Brief for National Catholic Reporter, in Support of Petitioner at 8.
Questions as Framed for the Court by the Parties
- Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious?
- Does the Baze v. Rees, 553 U.S. 35 (2008)-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?
- Must a prisoner establish the availability of an alternative drug formula even if the state's lethal-injection protocol, as properly administered, will violate the Eighth Amendment?
Oklahoma has effectuated its death penalty for many years by injecting three different chemical compounds into the inmate’s cardiovascular system. See Warner v. Oklahoma, 776 F.3d 721, 724–25 (10th Cir. 2015).
Edited by
Additional Resources
- Lyle Denniston: Court to rule on lethal-injection protocol, SCOTUSblog (Jan. 23, 2015).
- Ariane de Vogue: Supreme Court to review Oklahoma lethal injection procedure, CNN (Jan. 23, 2015).
- Matt Ford: Midazolam and the Supreme Court, The Atlantic (Jan. 23, 2015).
- Adam Liptak & Erik Eckholm: Justices to Hear Case Over Drugs Used in Executions, The New York Times (Jan. 23, 2015).