The Supreme Court of the United States recently denied a rehearing on its decision in the case of Richard Glossip v. Kevin Gross (135 S.Ct. 2726 (2015)). This case was based on a claim brought by three death row inmates in Oklahoma alleging that the combination of drugs that the state uses in its lethal injection protocol violates a person’s constitutional right to be free from cruel and unusual punishment under the Eighth Amendment. The inmates claimed that the first drug used in the state’s three-drug protocol, the sedative midazolam, does not induce a state of deep unconsciousness as intended. This allows the inmate being executed to feel excruciating pain when the second and third drugs are administered. The executions of Clayton Lockett, Dennis McGuire, and Joseph Wood last year were highly publicized because the inmates were in agony. The excruciating death was allegedly due to the inefficacy of the drug midazolam as a sedative.
In a 5-4 opinion, the majority of the Supreme Court held that Oklahoma’s use of midazolam does not violate the Eighth Amendment as cruel and unusual punishment. The majority opinion, written by Justice Alito, offered two reasons for its holding: first, “the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims;” and second, “the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”
The Court went on to explain that under the Supreme Court case of Baze v. Rees, 553 U.S. 35, 61 (2008), it is settled that the Eighth Amendment requires a prisoner to plead and prove a known and available alternative method to execution. However, in her dissent, Justice Sotomayor questioned this reasoning, stating, “[C]ertainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.” She urged that the Court’s decision is unfounded and that Baze adopted no such requirement that the petitioner must offer and prove an alternative method. Justice Sotomayor further argued that the Court disregarded substantial evidence of the drug’s deficiencies and merely deferred to the District Court’s decision to “credit the scientifically unsupported and implausible testimony by a single expert witness.”
The Glossip decision raised controversial questions and passionate dissents regarding the constitutionality of the death penalty as well as the methods used to execute those prisoners placed on ‘death row.’ In the aftermath of this decision, having been denied a stay by the U.S. Supreme Court, Richard Glossip was scheduled for execution on September 30, 2015. However, on September 30, 2015, the Governor of Oklahoma, Mary Fallin, issued Glossip a last-minute stay of execution due to a mix-up with the execution drugs. One of the drugs in the three-drug protocol was potassium chloride, but correction officers received the drug potassium acetate instead. Thus, the Governor issued a 37-day stay in order to ensure that the state fully complies with the federal protocol for lethal injection drugs.
Glossip’s new execution date was scheduled for November 6, 2015. On October 1, 2015, Oklahoma Attorney General Scott Pruitt requested an indefinite stay of Glossip’s execution as well as for the two other executions, which were scheduled to take place in Oklahoma in November. Pruitt reasoned that his office wanted to investigate the Oklahoma Department of Correction’s purchasing of a drug that did not comply with protocol. The request for an indefinite stay was granted on October 2, 2015. A new execution date will likely not be set for at least a year until state and federal investigations into Oklahoma’s death penalty are concluded.
The full opinion is available here.
Here are select articles from our publication that address lethal injections:
Roderick C. Patrick, Hiding Death, 18 New Eng. J. on Crim. & Civ. Confinement 117 (1992).
Julie Levinsohn Milner, Dignity or Death Row: Are Death Row Rights to Die Diminished? A Comparison of the Right to Die for the Terminally Ill and the Terminally Sentenced?, 24 New Eng. J. on Crim. & Civ. Confinement 279 (1998).