Glossip v. Gross

Issues 

  1. 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?
  2. Did Baze v. Rees heighten the standard for obtaining a stay of execution?
  3. Does a prisoner have to establish the availability of an alternative drug protocol when challenging a lethal injection protocol?
Oral argument: 
April 29, 2015

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. 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. 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. 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.

Questions as Framed for the Court by the Parties 

  1. 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?
  2. 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?
  3. 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?

Facts 

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 with pancuronium 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 the Supreme 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.

Analysis 

In this case, the United States Supreme Court will consider three questions: (1) whether Oklahoma’s three-drug lethal injection method—which uses the drug midazolam, a potentially unreliable sedative—violates the Eighth Amendment’s ban on cruel and unusual punishment; (2) what the standard for a stay of execution is; and (3) whether a prisoner is required to provide an alternative drug when challenging the drugs used in a lethal injection protocol.

In Baze v. Rees, a 2008 case that challenged Kentucky’s lethal injection protocol, the Supreme Court held that a method of execution is unconstitutional if it creates a “substantial risk of serious harm” or an “objectively intolerable risk of harm.”

Richard Glossip argues that midazolam is not effective as an anesthetic so it creates a substantial risk of harm that violates the Eighth Amendment. Glossip further argues that the standard of review for stays of execution should not be heightened and prisoners should not be required to find an alternative drug when challenging the constitutionality of a specific lethal injection protocol. Gross counters that midazolam is highly likely to render a prisoner unconscious and will therefore not create a substantial risk of harm. Gross also contends that Baze established both a heightened standard for stay requests and the requirement that a prisoner establish the availability of alternative drugs.

DOES USE OF MIDAZOLAM AS A SEDATIVE CREATE A SUBSTANTIAL RISK OF HARM?

Glossip contends that midazolam cannot reliably produce a “deep, coma-like unconsciousness” throughout the execution and therefore creates a substantial risk of harm that violates the Eighth Amendment. Glossip argues that, as in Baze, the second and third drugs administered in Oklahoma’s lethal injection protocol would cause the sort of pain and suffering prohibited by the Eighth Amendment. According to Glossip, a lethal-injection protocol is constitutional only if the first drug administered produces a “deep, coma-like unconsciousness” that prevents suffering from the subsequent drugs administered. Glossip argues that whereas in Baze there was a consensus that the first drug, if administered correctly, would produce a deep level of unconsciousness, that is not the case with midazolam. Even when administered correctly, Glossip asserts, Midazolam falls short of producing that level of unconsciousness. As evidence, Glossip points to the lack of pain-relieving qualities in midazolam that make it not approved as the sole anesthetic during surgery. Furthermore, Glossip contends that while a large dose of barbiturates, which were previously used in executions, can effectively stop brain activity and produce a coma; in contrast, midazolam has a “ceiling effect,” meaning that after a certain dosage midazolam stops having an effect on the brain, making it unreliable in producing unconsciousness.

Gross counters that midazolam is “highly likely to render [inmates] unconscious and insensate” and so Oklahoma’s use of midazolam does not create a substantial risk of harm that violates the Eighth Amendment. Gross argues that midazolam induces anesthesia at certain doses and this, in turn, causes unconsciousness and prevents the brain from experiencing pain. Gross disagrees with Glossip’s argument that a “deep, coma-like unconsciousness” is required before the administration of the other two drugs. Instead, Gross argues that Baze only requires a level of consciousness where the prisoner is “unaware or substantially unaware” of the pain caused by the subsequent drugs. Gross, then, asserts that rendering the prisoner unconscious and insensate throughout the execution—something that midazolam does—is all that is necessary to uphold Oklahoma’s lethal injection protocol as constitutional. As support for proving that midazolam goes beyond what is required to comply with the Eighth Amendment, Gross points to medical consensus that a large dose of midazolam can cause coma or death.

Glossip also contends that the district court’s conclusion about midazolam—that it will render the prisoner “insensate to pain”—was a clear error. Glossip argues that this conclusion lacks the science to support it, and was adopted from an expert who relied on undisclosed or unsupported sources as well as mathematical errors.

However, Gross maintains that Glossip failed to raise any criticisms of the expert in district court, and consequently, has waived this challenge. Even if not waived, Gross asserts that Glossip’s criticisms did not undermine the expert’s reliability. Moreover, Gross states that the district court relied on the expert’s testimony only after considering Oklahoma’s expert, which it decided not to credit.

WHAT IS THE CORRECT STANDARD FOR OBTAINING A STAY OF EXECUTION?

Glossip claims that the proper standard for obtaining a stay of execution requires a prisoner to demonstrate a significant possibility of success on the merits, i.e. that a method of execution creates an intolerable risk of harm. Glossip contends that the Tenth Circuit misinterpreted language in Baze requiring prisoners to show a “demonstrated risk of severe pain” as establishing a heightened standard for challenges to all execution methods. This language, Glossip asserts, is specific to the type of claim made in Baze where prisoners challenged a concededly painless and humane lethal injection protocol on the grounds that it could be improperly administered. Glossip states that the present challenge is fundamentally different because Oklahoma’s use of midazolam makes its lethal injection protocol inherently unconstitutional even if it is properly administered. In the alternative, Glossip argues that if Baze did establish a new stay standard, the Court should not extend that standard to claims that challenge the execution method itself as unconstitutional, even if properly administered.

Gross counters that Baze articulated a standard that would apply to all dissimilar lethal injection protocols, like Oklahoma’s. Gross highlights language in Baze—upholding as constitutional all protocols “substantially similar” to the one considered in Baze—as showing that the heightened Baze standard applies only to dissimilar protocols, like Oklahoma’s. Additionally, the Supreme Court, Gross notes, “has long been deferential to lower courts with regard to whether they applied the proper standards of review,” and thus Court should defer to the Tenth Circuit’s standard. Gross further asserts that the Baze stay standard should apply to claims like Glossip’s, where there is an argument that a lethal injection protocol is inherently unconstitutional, because the Court intended for that standard to apply whenever a stay request is made. Furthermore, Gross argues that Glossip’s claim is identical to the claim that was made in Baze— that the lethal injection protocol chosen by the state was inherently unconstitutional—and the Baze standard should therefore apply.

ARE CHALLENGERS REQUIRED TO PROPOSE A COMMERCIALLY AVAILABLE ALTERNATIVE DRUG?

Glossip argues that challengers should not be required to propose a commercially available alternative drug for executions, as the Tenth Circuit ruled. Glossip states that the Eighth Amendment prevents a state from carrying out executions that would cause severe pain, and allowing a state to go forward with an unconstitutional execution if the prisoner does not propose an alternative runs contrary to this prohibition. Glossip further asserts that the Tenth Circuit’s ruling contradicts the Court’s decision in Hill v. McDonough, which rejected the U.S. government’s proposal requiring challengers of execution methods to identify an alternative. Finally, Glossip claims that there is no support in Baze or other Eighth Amendment precedent for the Tenth Circuit’s holding.

Gross counters that Baze requires challengers to show the availability of a commercially available alternative drug. Specifically, Gross argues that to succeed on an Eighth Amendment challenge post-Baze, a prisoner must first show a “demonstrated risk of severe pain,” and then show “that the risk is substantial when compared to the known and available alternatives.” Gross also asserts that this standard applies to all claims and not just where a concededly constitutional method of execution is being challenged. In support, Gross points to the unanimous consensus by every circuit court that has considered the issue in requiring the showing of an alternative. Gross also states that the Court’s decision in Hill addressed the pleading standards imposed when making a Section 1983 claim, and did not address the elements of Eighth Amendment violations in execution methods. According to Gross, Baze requires an alternative form of execution because without it, the challenge would be to the death penalty itself.

Discussion 

The Supreme Court will address whether the use of a drug, with no anesthetic effect and not reliable in producing unconsciousness—as the first drug in a three-drug execution protocol—is a constitutionally permissible means of effectuating a state’s death penalty. The remaining plaintiffs—Glossip, Grant, and Cole (collectively, “Glossip”)—contend that the use of midazolam poses an objectively intolerable risk of barbaric pain to death-row inmates due to its unreliability in causing deep unconsciousness. Gross, the Chair of the Oklahoma Board of Corrections, counters that midazolam is highly likely to effectively render the inmate unconscious and, thus, does not pose a threat of an unconstitutionally tortuous death. The Court’s decision will potentially affect the availability of methods of state execution and shed light on the level of acceptance of pain and suffering of a lethal injection cocktail.

DOES THE LACK OF USE OF A RELIABLE ANESTHETIC OFFEND BASIC NOTIONS OF HUMAN DECENCY FOR DEATH-ROW INMATES?

The National Catholic Reporter, in support of Glossip, asserts that if the Supreme Court sanctions Oklahoma’s use of midazolam, then the Court will concurrently sanction a method of execution that will cause torturous pain. Further, the National Catholic Reporter claims that torture, which it believes the use of midazolam in a lethal injection protocol to be, is an affront to human dignity and a grave sin within the Catholic faith. It bases this view on the notion that midazolam causes a drawn-out death filled with terror and excruciating pain. Moreover, the National Association of Criminal Defense Lawyers asserts that Oklahoma’s decision to use midazolam despite the documented deleterious results evinces a desire to prioritize political expediency over the implementation of a humane justice system.

Gross, however, contends that the use of midazolam is not tortuous because it does not pose a substantial risk of severe pain nor would it result in a drawn-out death. In support, Gross asserts that concentrated doses of midazolam produce unconsciousness in the recipient and render the recipient incapable of feeling painful and noxious stimuli. Thus, Gross maintains that the use of midazolam is not inhumane.

WILL ALTERNATIVE METHODS OF EXECUTION BE AVAILABLE?

Former State Attorneys General, in support of Glossip, contend that states can execute prisoners with lethal drug compounds without resorting to midazolam. In support of this contention, the State Attorneys General illuminate the fact that three states have executed a combined eighteen inmates after April 29, 2014—the date of Oklahoma’s first use of midazolam to execute an inmate—without using midazolam. Further, Glossip contends that even if alternative drugs were not available, this holding would extend only to the constitutionality of using the midazolam in the tripartite lethal injection procedure and, thus, would not bind states that implement other execution methods.

Gross counters that the drug that midazolam replaced, pentobarbital, is unavailable to the Oklahoma Department of Corrections. According to Gross, the states that have executed inmates with pentobarbital after April 29, 2014 have used the dregs of their dwindling supply, and Oklahoma has continued to search for available pentobarbital. Although Gross does not explicitly state that more humane methods of execution are readily available, he illuminates the void in Glossip and his amici’s briefs: these parties have not suggested a known and available alternative that is substantially less risky than the method currently in use. Gross does note, however, that the Court has never invalidated the firing squad or electrocution, suggesting that these methods are potentially available.

Conclusion 

The Supreme Court will consider (1) whether a state’s use of an unreliable anesthetic drug in the state’s lethal injection protocol violates the Eighth Amendment, (2) whether a heightened standard applies to 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. Glossip argues that Oklahoma’s use of midazolam in its lethal injection protocol creates a substantial risk of harm that violates the Eighth Amendment since the drug fails to reliably render a prisoner unconscious. Glossip also contends that a heightened standard should not apply to stays of execution and that a prisoner should not be required to establish the availability of alternative drugs. Gross counters that the use of midazolam in a state’s lethal injection protocol does not create a substantial risk of harm since it is highly likely to render prisoners unconscious. Gross further asserts that Baze established both a heightened standard that applies to all stays of execution and the requirement that an inmate establish the availability of alternative drugs. The Supreme Court’s ruling will affect the availability of certain execution methods as well as guide the acceptability of potentially unreliable sedative drugs in lethal injection protocols.

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