Caseflicks

Supreme Court of the United States • 2015

Glossip v. Gross

576 U.S. 863 | 135 S. Ct. 2726 | 192 L. Ed. 2d 761 | 2015 U.S. LEXIS 4255 | 83 U.S.L.W. 4656 | 25 Fla. L. Weekly Fed. S 494

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Takeaway

In short, this case made the Baze alternative-method requirement a binding element of Eighth Amendment execution-method claims and upheld Oklahoma's midazolam protocol under deferential review of the trial court's factual findings.

Background

Oklahoma revised its lethal-injection protocol after a problematic 2014 execution of Clayton Lockett, in which an IV line infiltrated and failed to deliver drugs properly into his bloodstream. The revised protocol called for 500 milligrams of midazolam, a sedative, followed by a paralytic and potassium chloride. It also added safeguards, including primary and backup IV lines, IV-site checks, a pause after the first drug, and monitoring for consciousness.

Three Oklahoma death-row prisoners—Richard Glossip, Benjamin Cole, and John Grant—brought a §1983 action challenging the protocol under the Eighth Amendment. They argued that midazolam could not reliably keep a prisoner unconscious against the pain caused by the paralytic and potassium chloride. After a three-day evidentiary hearing, the District Court denied a preliminary injunction. It found both that the prisoners had not identified a known and available, substantially less painful alternative method and that they had not proved that 500 milligrams of midazolam created a substantial risk of severe pain. The Tenth Circuit affirmed, and the Supreme Court stayed the remaining executions while it reviewed the case.

Issues

Issue #1

Whether an Eighth Amendment method-of-execution claimant must identify a known and available alternative method that significantly reduces the risk of severe pain.

Holding

Yes. A prisoner challenging a method of execution must identify a feasible, readily implemented, known, and available alternative that would significantly reduce a substantial risk of severe pain.

Reasoning

The Court treated the controlling plurality opinion in Baze v. Rees as establishing the governing rule. Under Baze, a claimant must show both a demonstrated risk of severe pain under the State's method and that the risk is substantial compared with known and available alternatives. A marginally safer alternative is not enough, because some risk of pain is inherent in every execution and the Constitution does not require States to eliminate every such risk.

The Court rejected the prisoners' reliance on Hill v. McDonough. Hill held only that §1983 does not impose a special heightened pleading rule requiring a prisoner to identify an alternative method. It did not decide the substantive elements of an Eighth Amendment method-of-execution claim. Baze, by contrast, directly addressed those substantive elements.

The prisoners suggested a one-drug protocol using sodium thiopental or pentobarbital. But the lower courts found that neither drug was available to Oklahoma despite the State's good-faith efforts to obtain it, and the Supreme Court saw no clear error in that finding. Because the prisoners identified no other available alternative, they were not likely to succeed on their Eighth Amendment claim.

Issue #2

Whether the District Court clearly erred in finding that Oklahoma's 500-milligram dose of midazolam did not create a substantial risk of severe pain.

Holding

No. The District Court permissibly found that the prisoners had not shown that midazolam was sure or very likely to leave them conscious during the administration of the second and third drugs.

Reasoning

The Court applied deferential clear-error review to the District Court's factual findings and emphasized that the prisoners bore the burden of proof. The State's expert, Dr. Roswell Evans, testified that a properly administered 500-milligram dose would make it a virtual certainty that the prisoner would be unconscious and insensate to the painful effects of the later drugs. The District Court was entitled to credit that testimony over conflicting expert evidence.

The prisoners' experts accepted that midazolam can produce unconsciousness but argued that it has a ceiling effect and cannot maintain surgical anesthesia. The Court concluded that this evidence did not establish the critical proposition: that the ceiling effect occurs at a dose below 500 milligrams and before midazolam can render a person insensate to the relevant pain. The experts could not identify the dose at which the alleged ceiling effect occurs, and their conclusions, like the State expert's, required extrapolation because 500-milligram doses are not used therapeutically.

The Court found that Oklahoma's revised procedural protections further reduced the risk of an unconstitutional execution. The protocol required viable primary and backup IV access, monitoring of consciousness, and other safeguards similar to those approved in Baze. The Lockett execution did not prove that midazolam was ineffective because the principal problem there was an infiltrated IV line, and Lockett received only 100 milligrams rather than the revised 500-milligram dose.

The Court also declined to infer unconstitutionality from the limited number of States using midazolam or from Arizona's execution of Joseph Wood. A lack of widespread adoption does not make a new protocol unconstitutional, particularly when States must adapt to shortages of execution drugs. Wood's execution involved a different protocol, different companion drug, and repeated doses over an extended period rather than Oklahoma's single 500-milligram dose.

Concurrences

Justice Scalia

Reasoning

Justice Scalia joined the Court's opinion but wrote to oppose Justice Breyer's suggestion that the Court should reconsider the death penalty's constitutionality. In his view, the Constitution expressly contemplates capital punishment in the Fifth Amendment, so the Court cannot hold the death penalty categorically unconstitutional under the Eighth Amendment.

He rejected Justice Breyer's arguments that capital punishment is unreliable, arbitrary, delayed, and becoming unusual. Conviction errors, he argued, are not defects in the punishment itself; sentencing variation is an ordinary consequence of individualized jury judgments; and much delay is a product of the Court's own capital-punishment doctrine and extensive collateral review.

Justice Scalia maintained that difficult moral and policy questions about retribution and deterrence belong to the people and their elected representatives, not to judges applying evolving standards of decency. He criticized the Court's modern Eighth Amendment jurisprudence as an unjustified transfer of this policy decision from democratic institutions to the judiciary.

Justice Thomas

Reasoning

Justice Thomas joined the majority because the prisoners' claim failed even under Baze, but he reaffirmed his narrower reading of the Eighth Amendment. In his view, the Clause prohibits only methods of execution deliberately designed to add terror, pain, or disgrace to a lawful death sentence, not protocols that create an unintended risk of pain.

That original understanding, he argued, would end the case because the prisoners did not allege that Oklahoma adopted midazolam to inflict pain. He criticized Baze's broader rule for turning federal courts into bodies that assess execution best practices and resolve medical controversies beyond their institutional competence.

Justice Thomas also rejected Justice Breyer's argument for reopening the constitutionality of capital punishment. He argued that claims of arbitrariness based on empirical comparisons improperly substitute academics' or appellate judges' abstract assessments of a crime's egregiousness for the individualized moral judgment that the Constitution entrusts to local juries.

Dissents

Justice Breyer

Reasoning

Justice Breyer joined Justice Sotomayor's dissent from the Court's disposition but separately urged the Court to order full briefing on whether the death penalty itself has become cruel and unusual punishment. Justice Ginsburg joined this opinion. In his view, nearly four decades of experience since Gregg v. Georgia have shown that the constitutional safeguards expected to make capital punishment reliable and nonarbitrary have not succeeded.

He pointed to evidence of wrongful capital convictions and exonerations, including research estimating that a meaningful percentage of death-sentenced defendants may be innocent. Death is final, he reasoned, and that finality creates a constitutionally heightened need for reliability that the present system cannot consistently provide.

He also argued that death sentences are imposed arbitrarily. Studies, in his view, show that geography, race, gender, local prosecutorial choices, resources, and other irrelevant factors can affect who receives death, while comparative seriousness of crimes often fails to explain the distinction between death and life sentences.

Justice Breyer further maintained that the extensive delays needed to provide fair and reliable capital review are themselves cruel and undermine deterrence and retribution. Yet reducing those delays would require sacrificing procedural protections that help prevent wrongful or arbitrary executions. This produces an unavoidable dilemma: a system fast enough to preserve the asserted purposes of capital punishment is insufficiently reliable, while a system careful enough to be reliable delays execution for decades.

Finally, he reasoned that the death penalty has become unusual in practice. Executions and death sentences had sharply declined, their use had become concentrated in a small number of States and counties, and many States had abolished capital punishment, ceased carrying it out, or imposed moratoria. Taken together, those developments warranted reconsideration of the death penalty under the Eighth Amendment.

Justice Sotomayor

Reasoning

Justice Sotomayor argued that the Court wrongly accepted the District Court's finding that 500 milligrams of midazolam would keep a prisoner unconscious through the administration of the paralytic and potassium chloride. Justice Ginsburg, Justice Breyer, and Justice Kagan joined her opinion. She stressed that the latter two drugs can cause suffocation and searing pain if the prisoner is conscious, so the adequacy of the first drug is constitutionally central.

In her view, the State's expert, Dr. Evans, supplied no reliable scientific basis for his conclusion that a high dose of midazolam would effectively paralyze the brain. His spinal-cord theory lacked support in the record and conflicted with the medical literature and the prisoners' experts' account of benzodiazepines. The cited evidence instead supported the conclusion that midazolam has a ceiling effect that prevents it from producing and maintaining the deep anesthesia needed to withstand severe pain.

She argued that the experiences in the Lockett and Wood executions reinforced this concern. Lockett's movements and statements after receiving midazolam illustrated the danger that an inmate may awaken when painful drugs are administered, and Wood's prolonged execution after a much larger cumulative dose cast doubt on the claim that 500 milligrams would reliably work. The State's IV and consciousness-check safeguards could ensure delivery of a drug, she reasoned, but could not cure the drug's inherent inability to maintain anesthesia.

Justice Sotomayor also rejected the majority's alternative-method requirement. Baze, she argued, concerned a claim that Kentucky could reduce an already uncertain risk by adopting particular alternative procedures; it did not establish that every method-of-execution challenge requires the condemned person to propose a means of execution. Nor did a majority of the Court adopt such a rule in Baze.

Under the majority's rule, she warned, a State could use an intolerably painful method so long as the prisoner could not identify an available, less painful alternative. That result conflicts with the Eighth Amendment's categorical prohibition on barbarous punishments. A State is not constitutionally entitled to carry out an execution by whatever means remain available; if every available means is cruel and unusual, the State must not execute the prisoner.