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Divided SCOTUS rejects Eighth Amendment challenge to Oklahoma’s lethal injection protocol

Glossip v. Gross, USSC No. 14-7955, 2015 WL 2473454 (June 29, 2015), affirming Warner v. Gross, 776 F.3d 721 (10th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

In a 5-to-4 vote, the Supreme Court rejects the claims of Oklahoma death-row prisoners that the use of a particular drug (midazolam) in the three-drug lethal injection protocol violates the Eighth Amendment because it creates an unacceptable risk of severe pain. In addition to deep disagreements about the applicable Eighth Amendment standard and the lower court’s fact-finding, the case is notable for the sparring between two concurring justices (Scalia and Thomas) and a dissenting justice (Breyer, joined by Ginsburg), who now believes “it highly likely that the death penalty violates the Eighth Amendment” and that the Court should ask for full briefing on that basic question. (Breyer dissent at 1, 2).

After an evidentiary hearing, a federal district court found that the prisoners hadn’t proven that midazolam—the first drug administered—is ineffective in inducing a state of unconsciousness that will assure the prisoner being executed doesn’t experience pain. A majority of the Court affirms on two grounds:

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. See Baze v. Rees, 553 U. S. 35, 61 (2008) (plurality opinion). 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.

In addition to the aforementioned concurrences (totaling 17 pages) and dissent (40+ pages) debating the constitutionality of the death penalty, there is a dissent authored by Justice Sotomayor, and joined by Justices Breyer, Ginsburg, and Kagan. Justice Sotomayor concludes the district court’s factual findings were clearly erroneous because they relied on “the scientifically unsupported and implausible testimony of a single expert witness.” (Sotomayor dissent at 1, 11-16). She also disputes the majority’s reading of the plurality opinion in Baze is “legally indefensible.” (Dissent at 23). That case imposes no requirement that the prisoners identify a known and available alternative drug; instead, the only question is whether the particular method of execution in question is itself cruel and unusual. (Id. at 23-27).

…. [A] method of execution that is “barbarous,”  or “involve[s] torture or a lingering death,” … does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. 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. (Sotomayor dissent at 27-28).

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