Glossip v. Gross, 576 U.S. 863 (2015), was a United States Supreme Court case in which the Court held, 5–4, that lethal injections using midazolam to kill prisoners convicted of capital crimes do not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The Court found that condemned prisoners can only challenge their method of execution after providing a known and available alternative method.
Background On January 7, 1997, Justin Sneed beat Barry Van Treese to death with a baseball bat.Liliana Segura & Jordan Smith, What Happened in Room 102, The Intercept (July 9, 2015). The killing occurred at the Best Budget Inn in Oklahoma City, Oklahoma, where Van Treese was the owner, Sneed was the maintenance-man, and Richard Glossip was the manager. In exchange for avoiding the death penalty, Sneed confessed and told police that Glossip had instructed him to commit the murder.
Glossip insisted on his actual innocence and refused to accept a plea bargain. In July 1998, an Oklahoma jury convicted Glossip of the murder and sentenced him to death. In 2001, the unanimous Oklahoma Court of Criminal Appeals threw out that conviction, calling the case "extremely weak" and finding Glossip had received unconstitutionally ineffective assistance of counsel.Glossip v. Oklahoma, 29 P.3d 597, 2001 O.K. C.R. 21 (Okla. Crim. App. 2001).
In August 2004, a second Oklahoma jury convicted Glossip of the murder and sentenced him to death. Glossip complained that prosecutors had intimidated his defense attorney into resigning, but, in April 2007, the Oklahoma Court of Criminal Appeals affirmed the death sentence, with two judges in the majority, one judge specially concurring, and two judges dissenting.Glossip v. Oklahoma, 157 P.3d 143, 2007 O.K. C.R. 12 (Okla. Crim. App. 2007). Glossip attracted the advocacy of Sister Helen Prejean, but failed to get the clemency board to consider letters from Sneed's family, who believe Sneed is lying.
After a three-justice plurality opinion of the U.S. Supreme Court upheld the use of the sedative sodium thiopental during lethal injections in Baze v. Rees (2008), disconcerted pharmaceutical companies began refusing to supply states with the drug.The Supreme Court, 2014 Term — Leading Cases , 129 HARV. L. REV. 171 (2015).
Oklahoma replaced the general anaesthetic with an untested off-label use of midazolam, keeping the drug's origin secret.Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett, The Atlantic (June 2015). Condemned prisoners Clayton Lockett and Charles Warner sued, and the state trial court found the secrecy law unconstitutional. However, pending an appeal by Oklahoma Attorney General Scott Pruitt, the Oklahoma Court of Criminal Appeals refused to then stay the plaintiffs' imminent executions, so, on April 21, 2014, the Oklahoma Supreme Court did.Lockett v. Evans, 356 P.3d 58, 2014 O.K. 33 (Okla. 2014) (per curiam). Faced with conflicting court orders, Governor Mary Fallin decided to disobey the supreme court order, explaining the "attempted stay of execution is outside the constitutional authority of that body". The day after the Oklahoma House of Representatives drafted articles of impeachment against the supreme court justices, the court withdrew its stay of execution and reversed the trial court's holding against the state.Lockett v. Evans, 330 P.3d 488, 2014 O.K. 34 (Okla. 2014) (per curiam).
On April 29, 2014, Oklahoma used midazolam in the execution of Clayton Lockett. After executioners had performed the lethal injection, Lockett began to struggle on the gurney, reportedly groaning "this shit is fucking with my mind" and "the drugs aren't working." Lockett died forty-three minutes after the lethal injection. Oklahoma decided to delay the execution of Warner, who was scheduled to die later that night.
After an investigation, Oklahoma elected to continue using midazolam in executions. On June 25, 2014, Warner, Glossip, and nineteen other Oklahoma death row inmates sued in the United States District Court for the Western District of Oklahoma, alleging Oklahoma's use of midazolam violated the Eighth Amendment to the United States Constitution. At the end of a three-day hearing, U.S. District Judge Stephen P. Friot orally denied the condemned prisoners' request for a preliminary injunction prohibiting the use of midazolam in their executions.Warner v. Gross, On January 12, 2015, Tenth Circuit Judge Mary Beck Briscoe, joined by (future Supreme Court justice) Neil Gorsuch and Scott Matheson Jr., affirmed.Warner v. Gross,
Supreme Court of the United States On January 13, 2015, the condemned prisoners petitioned for a writ of certiorari and stays of their executions from the U.S. Supreme Court. The petitioners argued that the midazolam, intended to be used as sedative, would not render them unable to feel the pain of the other two drugs. On January 15, 2015, the Court denied lead petitioner Warner's application for a stay of execution, over the written dissent of Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.Warner v. Gross, 135 S. Ct. 824 (2015) (Sotomayor, J., dissenting from denial of stays of execution). Oklahoma executed Warner later that day.
However, on January 23, the Supreme Court decided to hear the case, staying the surviving petitioners' executions. The proceeding was then renamed, with Richard Glossip as lead petitioner. One hour of arguments were heard on April 29. At oral arguments, four conservative justices expressed impatience with obstructionist unavailability caused, Justice Scalia said, "by the abolitionists putting pressure on the companies that manufacture" the drugs. Justice Alito called this "guerrilla war against the death penalty", and Justice Kennedy insisted to have an answer from the petitioners on whether the court should take this element into account. Four liberal justices, conversely, harshly questioned Oklahoma Solicitor General Patrick Wyrick, with Justice Kagan describing the execution protocol as "burning alive, from the inside."
Opinion of the Court
On June 29, 2015, the last day of the term, the Supreme Court ruled against the condemned prisoners in a 5–4 decision. At the opinion announcement, Justices Sotomayor and Breyer read aloud their dissents from the bench, while Scalia also read aloud a statement criticizing the Court's "unrealistic" restrictions of the death penalty for "over the past 30 years" and the proposal then by two Justices to eliminate the death penalty entirely."Glossip v. Gross." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Dec 13, 2016.
Justice Samuel Alito delivered the opinion of the Court, joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas., 135 S. Ct. 2726 (2015). According to the Court, the Eighth Amendment requires prisoners to show there is a known and available alternative method of execution. The prisoners had failed to do this, the Court found, because the alternative drugs they proposed were unavailable to Oklahoma. The Court explained that Hill v. McDonough (2006) did not apply.Glossip, 135 S. Ct. at 2738.
Secondly, the Court found the Eighth Amendment requires prisoners to show the challenged method of execution poses a demonstrated risk of severe pain, emphasizing the burden of proof was on the prisoners, not the state. Although midazolam is not recommended or approved by the Food and Drug Administration as an anesthetic, the Court explained that a constitutionally adequate method of execution does not need to meet the medical standard of care.
The Court credited the testimony of Dr. Roswell Lee Evans, Oklahoma's expert witness, that there is "a virtual certainty" prisoners will feel no pain during lethal injection, rejecting the prisoners' "speculative evidence" of midazolam's ceiling effect. Finally, the Court found there was no merit to the prisoners' criticisms that Dr. Evans' report overused unreliable sources, such as drugs.com, and that it contained mathematical errors.
Justice Scalia's concurrence Justice Scalia, joined by Justice Thomas, concurred. Scalia attacked Breyer for offering "a white paper devoid of any meaningful legal argument".135 S. Ct. at 2747 (Scalia, J., concurring). Mocking Breyer's use of statistics, Scalia wrote "if only Aristotle, Aquinas, and Hume knew that moral philosophy could be so neatly distilled into a pocket-sized, vade mecum 'system of metrics.135 S. Ct. at 2748 (Scalia, J., concurring). Scalia then cited several studies concluding that the death penalty is more deterrent than life in jail.135 S. Ct. at 2749 (Scalia, J., concurring) citing Zimmerman, "State Executions, Deterrence, and the Incidence of Murder", 7 J. Applied Econ. 163, 166 (2004); Dezhbakhsh, Rubin, & Shepherd, "Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data", 5 Am. L. & Econ. Rev. 344 (2003) ; Sunstein & Vermeule, "Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs", 58 Stan. L. Rev. 703, 713 (2005).
Given Breyer's call to review precedent, Scalia added his own call to counsel to brief whether Trop v. Dulles (1958) should be overruled.135 S. Ct. at 2749 (Scalia, J., concurring). Noting that the capital punishment debate in the United States had been deliberately left open by the Founders, Scalia concluded "by arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment."135 S. Ct. at 2750 (Scalia, J., concurring).
Justice Thomas's concurrence Justice Thomas, joined by Justice Scalia, concurred. Thomas wrote that "the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means". Thomas wrote separately to clarify that he believes the Eighth Amendment only prohibits executions "deliberately designed to inflict pain."135 S. Ct. at 2750 (Thomas, J., concurring). Calling Breyer's use of statistics "pseudoscientific", Thomas found one study's use of "depravity points" dehumanizing.135 S. Ct. at 2752 (Thomas, J., concurring) citing McCord, Lightning Still Strikes, 71 Brooklyn L. Rev. 797, 833–834 (2005). Thomas rejected Breyer's example of a double murderer arbitrarily receiving a lighter sentence than a murderer, citing news reports on WRAL-TV as explanation.135 S. Ct. at 2752 fn. 3 (Thomas, J., concurring) citing Charbonneau, Andre Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26, 2004; Charbonneau, Jury Finds Andre Edwards Guilty of First-Degree Murder, WRAL, Mar. 23, 2004. Noting that, "in my decades on the Court, I have not seen a capital crime that could not be considered sufficiently 'blameworthy' to merit a death sentence", Thomas concluded by spending several paragraphs graphically describing some of those crimes, including several rapes and several murders committed by the intellectually disabled and by juveniles.135 S. Ct. at 2752-2755 (Thomas, J., concurring).
Justice Breyer's dissent
Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented. Explaining that the Constitution did not enshrine the standards of the Bloody Assizes or those found in Blackstone's Commentaries on the Laws of England, Breyer believed that circumstances had radically changed since the death penalty was restored by the Court in Gregg v. Georgia (1976).135 S. Ct. at 2755 (Breyer, J., dissenting) citing 4 W. Blackstone, Commentaries on the Laws of England 369–370 (1769) (listing mutilation and dismembering, among other punishments). Breyer gave four reasons for why he believed the court should find against the death penalty: