__ U.S. __ (2015), 14-7955, Glossip v. Gross

Docket Nº14-7955
Citation__ U.S. __, 135 S.Ct. 2726, 192 L.Ed.2d 761, 83 U.S.L.W. 4656
Opinion JudgeALITO, JUSTICE
Party NameRICHARD E. GLOSSIP, ET AL., PETITIONERS v. KEVIN J. GROSS, ET AL
AttorneyRobin C. Konrad argued the cause for petitioners. Patrick R. Wyrick argued the cause for respondents.
Judge PanelALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, i...
Case DateJune 29, 2015
CourtUnited States Supreme Court

Page __

__ U.S. __ (2015)

135 S.Ct. 2726, 192 L.Ed.2d 761, 83 U.S.L.W. 4656, 25 Fla.L.Weekly Fed. S 494

RICHARD E. GLOSSIP, ET AL., PETITIONERS

v.

KEVIN J. GROSS, ET AL

No. 14-7955

United States Supreme Court

June 29, 2015

[135 S.Ct. 2727] Argued April 29, 2015

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

776 F.3d 721, affirmed.

SYLLABUS

[135 S.Ct. 2728] [192 L.Ed.2d 765] Because capital punishment is constitutional, there must be a constitutional means of carrying it out. After Oklahoma adopted lethal injection as its method of execution, it settled on a three-drug protocol of (1) sodium thiopental (a barbiturate) to induce a state of unconsciousness (2) a paralytic agent to inhibit all muscular-skeletal movements, and (3) potassium chloride to induce cardiac arrest. In Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, the Court held that this protocol [135 S.Ct. 2729] does not violate the Eighth Amendment's prohibition against cruel and unusual punishments. Anti-death-penalty advocates then pressured pharmaceutical companies to prevent sodium thiopental (and, later, another barbiturate called pentobarbital) from being used in executions. Unable to obtain either sodium thiopental or pentobarbital, Oklahoma decided to use a 500-milligram dose of midazolam, a sedative, as the first drug in its three-drug protocol.

Oklahoma death-row inmates filed a 42 U.S.C. § 1983 action claiming that the use of midazolam violates the Eighth Amendment. Four of those inmates filed a motion for a preliminary injunction and argued that a 500-milligram dose of midazolam will not render them unable to feel pain associated with administration of the second and third drugs. After a three-day evidentiary hearing, the District Court denied the motion. It held that the prisoners failed to identify a known and available alternative method of execution that presented a substantially less severe risk of pain. It also held that the prisoners failed to establish a likelihood of showing that the use of midazolam created a demonstrated risk of severe pain. The Tenth Circuit affirmed.

Held :

Petitioners have failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment. Pp. 11-29.

(a) To obtain a preliminary injunction, petitioners must establish, among other things, a likelihood of success on the merits of their claim. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249. To succeed on an Eighth Amendment method-of-execution claim, a prisoner must establish that the method creates a demonstrated risk of severe pain and that the risk is substantial [192 L.Ed.2d 766] when compared to the known and available alternatives. Baze, supra, at 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (plurality opinion). Pp. 11-13.

(b) Petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution. Petitioners have suggested that Oklahoma could execute them using sodium thiopental or pentobarbital, but the District Court did not commit a clear error when it found that those drugs are unavailable to the State. Petitioners argue that the Eighth Amendment does not require them to identify such an alternative, but their argument is inconsistent with the controlling opinion in Baze, which imposed a requirement that the Court now follows. Petitioners also argue that the requirement to identify an alternative is inconsistent with the Court's pre- Baze decision in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44, but they misread that decision. Hill concerned a question of civil procedure, not a substantive Eighth Amendment question. That case held that § 1983 alone does not require an inmate asserting a method-of-execution claim to plead an acceptable alternative. Baze, on the other hand, made clear that the Eighth Amendment requires a prisoner to plead and prove a known and available alternative. Pp. 13-16.

(c) The District Court did not commit clear error when it found that midazolam is likely to render a person unable to feel pain associated with administration of the paralytic agent and potassium chloride. Pp. 16-29.

(1) Several initial considerations bear emphasis. First, the District Court's factual findings are reviewed under the deferential " clear error" standard. Second, petitioners have the burden of persuasion on the question whether midazolam is effective. [135 S.Ct. 2730] Third, the fact that numerous courts have concluded that midazolam is likely to render an inmate insensate to pain during execution heightens the deference owed to the District Court's findings. Finally, challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts, which should not embroil themselves in ongoing scientific controversies beyond their expertise. Baze, supra, at 51, 128 S.Ct. 1520, 170 L.Ed.2d 420. Pp. 16-18.

(2) The State's expert presented persuasive testimony that a 500-milligram dose of midazolam would make it a virtual certainty that an inmate will not feel pain associated with the second and third drugs, and petitioners' experts acknowledged that they had no contrary scientific proof. Expert testimony presented by both sides lends support to the District Court's conclusion. Evidence suggested that a 500-milligram dose of midazolam will induce a coma, and even one of petitioners' experts agreed that as the dose of midazolam increases, it is expected to produce a lack of response to pain. It is not dispositive that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery. First, the 500-milligram dose at issue here is many times higher than a normal therapeutic dose. Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness says little about whether a 500-milligram dose is constitutionally adequate to conduct an execution. Finally, the District Court did not err in concluding that the safeguards adopted by Oklahoma to ensure proper administration of midazolam serve to minimize any risk [192 L.Ed.2d 767] that the drug will not operate as intended. Pp. 18-22.

(3) Petitioners' speculative evidence regarding midazolam's " ceiling effect" does not establish that the District Court's findings were clearly erroneous. The mere fact that midazolam has a ceiling above which an increase in dosage produces no effect cannot be dispositive, and petitioners provided little probative evidence on the relevant question, i.e., whether midazolam's ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain caused by the second and third drugs. Petitioners attempt to deflect attention from their failure of proof on this point by criticizing the testimony of the State's expert. They emphasize an apparent conflict between the State's expert and their own expert regarding the biological process that produces midazolam's ceiling effect. But even if petitioners' expert is correct regarding that biological process, it is largely beside the point. What matters for present purposes is the dosage at which the ceiling effect kicks in, not the biological process that produces the effect. Pp. 22-25.

(4) Petitioners' remaining arguments--that an expert report presented in the District Court should have been rejected because it referenced unreliable sources and contained an alleged mathematical error, that only four States have used midazolam in an execution, and that difficulties during two recent executions suggest that midazolam is ineffective--all lack merit. Pp. 26-29.

776 F.3d 721, affirmed.

Robin C. Konrad argued the cause for petitioners.

Patrick R. Wyrick argued the cause for respondents.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined. THOMAS, J., filed a concurring opinion, in which SCALIA, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

OPINION

[135 S.Ct. 2731] ALITO, JUSTICE

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. § 1979, 42 U.S.C. § 1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain. They argue that midazolam, the first drug employed in the State's current three-drug protocol, fails to render a person insensate to pain. After holding an evidentiary hearing, the District Court denied four prisoners' application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court's finding of fact regarding midazolam's efficacy.

For two independent reasons, we also affirm. 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, 128 S.Ct. 1520, [192 L.Ed.2d 768] 170 L.Ed.2d 420 (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.

I

A

The death penalty was an accepted punishment at the time of the adoption of the Constitution and...

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    • Federal Cases United States District Courts 7th Circuit United States District Court (Southern District of Indiana)
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    ...chloride is generally used to treat low blood potassium levels. It also is used in executions. See Glossip v. Gross, __ U.S. __, 135 S.Ct. 2726, 2732, 192 L.Ed.2d 761 (2015). Physicians such as Dr. David Berry, M.D., (Defendants’ expert) and Dr. Steven Ralston, M.D., (Dr. ......
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    • United States
    • Federal Cases United States District Courts 6th Circuit United States District Courts. 6th Circuit. Southern District of Ohio
    • November 21, 2020
    ...Campbell is dispositive here. In Campbell, the Sixth Circuit explained that the Supreme Court's decision in Glossip v. Gross, 135 S.Ct. 2726 (2015), closed the hypothetical door left open by [v. Campbell, 541 U.S. 637 (2004)], Hill [v. McDonough, 547 U.S. 573 (2006)], an......
  • Nance v. Commissioner, Georgia Department of Corrections, 120220 FED11, 20-11393
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    • Federal Cases United States Courts of Appeals United States Court of Appeals (11th Circuit)
    • December 2, 2020
    ...prove a known and available alternative in order to state an Eighth Amendment claim); Glossip v. Gross, 576 U.S. 863, 879, 135 S.Ct. 2726, 2738 (2015) (characterizing Hill as holding "that a method-of-execution claim must be brought under § 1983 because such a claim......
  • Request a trial to view additional results
514 cases
  • 392 F.Supp.3d 935 (S.D.Ind. 2019), 1:19-cv-01660-SEB-DML, Bernard v. Individual Members of Indiana Medical Licensing Board
    • United States
    • Federal Cases United States District Courts 7th Circuit United States District Court (Southern District of Indiana)
    • June 28, 2019
    ...chloride is generally used to treat low blood potassium levels. It also is used in executions. See Glossip v. Gross, __ U.S. __, 135 S.Ct. 2726, 2732, 192 L.Ed.2d 761 (2015). Physicians such as Dr. David Berry, M.D., (Defendants’ expert) and Dr. Steven Ralston, M.D., (Dr. ......
  • 300 So.3d 945 (Miss. 2020), 2017-DP-00504-SCT, Julio Garcia v. State
    • United States
    • Mississippi United States State Supreme Court of Mississippi
    • May 14, 2020
    ...S.Ct. 1801, 195 L.Ed.2d 774 (2016) (Breyer, J., dissenting from denial of certiorari) (same); Glossip v. Gross, 576 U.S. 863, 135 S.Ct. 2726, 2761, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting) (asserting that geographical arbitrariness is national in ¶120. In his......
  • Braden v. Bagley, 112120 OHSDC, C. A. 2:04-cv-842-DJH-RSE
    • United States
    • Federal Cases United States District Courts 6th Circuit United States District Courts. 6th Circuit. Southern District of Ohio
    • November 21, 2020
    ...Campbell is dispositive here. In Campbell, the Sixth Circuit explained that the Supreme Court's decision in Glossip v. Gross, 135 S.Ct. 2726 (2015), closed the hypothetical door left open by [v. Campbell, 541 U.S. 637 (2004)], Hill [v. McDonough, 547 U.S. 573 (2006)], an......
  • Nance v. Commissioner, Georgia Department of Corrections, 120220 FED11, 20-11393
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (11th Circuit)
    • December 2, 2020
    ...prove a known and available alternative in order to state an Eighth Amendment claim); Glossip v. Gross, 576 U.S. 863, 879, 135 S.Ct. 2726, 2738 (2015) (characterizing Hill as holding "that a method-of-execution claim must be brought under § 1983 because such a claim......
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35 books & journal articles
1 provisions
  • Manner of Federal Executions
    • United States
    • The Attorney General Office
    • Invalid date
    ...into the record reports from Oklahoma and Louisiana indicating that nitrogen hypoxia would be simple and painless.''); Glossip, 135 S. Ct. at 2797 (Sotomayor, J., dissenting) (``At least from a condemned inmate's perspective, . . . [death by shooting's] visible yet relatively painless viole......