On June 29, 2015, the Supreme Court issued its opinion in Glossip v. Gross, affirming the decision of the U.S. District Court for the Western District of Oklahoma which denied a request for a preliminary injunction barring the state from using midazolam in lethal injection executions. The claim was brought by three death row prisoners challenging Oklahoma’s lethal injection protocol. Justice Alito wrote for the majority, in a 5-4 decision with two concurring opinions and two dissents. Justice Breyer's dissent, joined by Justice Ginsburg, went beyond the bounds of the original issue presented in the case and called into question the constitutionality of the death penalty itself.
The petitioners objected to the state’s use of midazolam, the first drug administered in Oklahoma’s current three-drug protocol for lethal injections. The State claimed that the drug renders a prisoner unconscious and insensate to prevent him from feeling pain during the remainder of the execution. The second and third drugs, vecuronium bromide and potassium chloride, are used to cause paralysis and, ultimately, stop the prisoner’s heart. If the second and third drugs are given to a conscious person, he or she would feel “excruciating pain.” The majority ruled against the prisoners for two reasons: (1) they failed to identify an alternative method of execution that entails a lesser risk of pain, and (2) the district court did not commit clear error in its factual findings.
The petitioners filed their claim after the botched execution of Oklahoma death row prisoner Clayton Lockett, who began to speak and writhe in pain after he was thought to be unconscious. After conducting its own investigation, the state reported that the execution team had trouble finding an IV access point causing all three lethal injection drugs to leak into Mr. Lockett’s tissue instead of entering his bloodstream. As a result, the midazolam did not render the prisoner unconscious as planned and he awakened during the injection of potassium chloride—the drug that stops the heart. Following this incident, Oklahoma made several changes to its protocol, including increasing the dosage of midazolam from 100 to 500 milligrams and implementing a waiting period between the injection of midazolam and the second drug in the protocol.
Writing for the majority, Justice Alito relied heavily on the premise that capital punishment is constitutional and therefore there must be a constititutional means of carrying out executions. He noted that the Supreme Court has never invalidated a state’s chosen method of execution as cruel and unusual punishment. Methods including the firing squad, the electric chair, and a different three-drug lethal injection protocol used in Kentucky were all previously upheld by the Supreme Court.
In the Kentucky case, Baze v. Rees, two death row prisoners challenged the constitutionality of the state’s lethal injection protocol, which did not include midazolam. The Court held that the petitioners must show that the state’s chosen method of execution creates a “demonstrated risk of severe pain,” and that the risk is “substantial when compared to the known and available alternatives” in order to prevail on such a claim. The petitioners in Glossip offered two less painful drug protocols that Oklahoma could use instead of the midazolam; however, Oklahoma claimed that they have been unable to obtain the suggested drugs—a problem Justice Alito attributed to the anti-death penalty movement.
The petitioners argued that the use of midazolam constitutes cruel and unusual punishment, because it cannot reliably keep a prisoner unconscious throughout the execution. At a preliminary injunction hearing, both the State and the petitioners submitted testimony from medical experts supporting their respective positions. Experts for the petitioners contend that midazolam has a ceiling effect and the increased dosage does not ensure that a prisoner will remain unconscious throughout the injection procedure. However, the State’s medical expert concluded that an increased dosage of midazolam would induce and maintain unconsciousness. Since the medical experts reached no clear consensus in support of this claim, the Court found that the district court’s denial of the preliminary injunction was not clearly erroneous.
Disagreeing with this conclusion, Justice Sotomayor wrote an impassioned dissent that was joined by three other justices. In it she questioned the majority’s assumption that there must be a constitutional method of execution and the holding that a prisoner must identify that method in order to raise a lethal injection claim. She wrote:
Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. If a State wishes to carry out an execution, it must do so subject to the constraints that our Constitution imposes on it, including the obligation to ensure that its chosen method is not cruel and unusual. Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.
Even more notable, however, was the dissent authored by Justice Breyer and joined by Justice Ginsburg. Going beyond the bounds of the narrow question presented, Justice Breyer called for, “full briefing on a more basic question: whether the death penalty violates the Constitution.” In his 41-page opinion that extends nearly as long as the majority opinion and concurrences combined, Justice Breyer described three constitutional defects in the administration of the death penalty: unreliability, arbitrariness, and unconscionably long delays. He reasoned that these defects may render the death penalty a “cruel” punishment under the Eighth Amendment. He noted that between 1976 and 2007 there were no executions in 86% of U.S. counties, supporting the conclusion that the death penalty is also an “unusual” punishment in America. He also cited statistics showing a sharp decline in the number of executions and new death sentences over the past 20 years, as well as noting that a number of states have abolished the death penalty in recent years. Justice Breyer concluded his dissent by saying that he believes it “highly likely that the death penalty violates the Eighth Amendment.” Justice Scalia wrote a concurring opinion to respond to Justice Breyer’s dissent, stating that it is “impossible” for the death penalty to be unconstitutional and referring to Justice Breyer’s dissent as “gobbledy-gook.”
Justice Breyer’s dissenting opinion marked the first time that a member of the current Court has indicated they might find the death penalty itself to be unconstitutional. Former Justice John Paul Stevens announced his opposition to the death penalty after his retirement in 2010. Similarly, Justice Lewis Powell declared after his retirement that he had come to believe that the death penalty should be abolished. Justices Stevens and Powell both voted to allow for reinstatement of the death penalty in Gregg v. Georgia in 1976. Another justice who voted with the Gregg majority, Justice Harry Blackmun, changed his views while he was still sitting on the Court. In 1994 he declared in a now-famous dissenting opinion that he would no longer “tinker with the machinery of death.”
Following the Court’s decision, the state of Oklahoma set a new execution date for Richard Glossip. Litigation continues in Oklahoma and around the country concerning the use of midazolam and other untested execution protocols, and Mr. Glossip has sought rehearing from the Supreme Court to address Justice Breyer’s call for full briefing on the constitutionality of the death penalty.