Glossip v. Gross

Citation576 U.S. 863,192 L.Ed.2d 761,135 S.Ct. 2726
Decision Date29 June 2015
Docket NumberNo. 14–7955.,14–7955.
Parties Richard E. GLOSSIP, et al., Petitioners v. Kevin J. GROSS, et al.
CourtU.S. Supreme Court

576 U.S. 863
135 S.Ct. 2726
192 L.Ed.2d 761

Richard E. GLOSSIP, et al., Petitioners
v.
Kevin J. GROSS, et al.

No. 14–7955.

Supreme Court of the United States

Argued April 29, 2015.
Decided June 29, 2015.


Robin C. Konrad, Washington, D.C., for Petitioners.

Patrick R. Wyrick, Solicitor General, for Respondents.

Susan Otto, Fed. Public Defender, W. District of Oklahoma, Patti Palmer Ghezzi, Randy A. Bauman, Oklahoma City, OK, Mark E. Haddad, Alycia A. Degen, Collin P. Wedel, Sidley Austin LLP, Los Angeles, CA, Jon M. Sands, Fed. Public Defender, District of Arizona, Dale A. Baich, Robin C. Konrad, Phoenix, AZ, Peter D. Keisler, Jeffrey T. Green, Jacqueline G. Cooper, Sidley Austin LLP, Washington, D.C., for Petitioners.

David B. Rivkin, Jr., Baker & Hostetler LLP, Washington, D.C., E. Scott Pruitt, Attorney General, Patrick R. Wyrick, Solicitor General, Counsel of Record, Mithun Mansinghani, Deputy Solicitor General, Jared Haines, Assistant Solicitor General, John D. Hadden, Jeb Joseph, Aaron Stewart, Assistant Attorneys General, Oklahoma Attorney General's Office, Oklahoma City, OK, for Respondents.

Justice ALITO delivered the opinion of the Court.

576 U.S. 867

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, 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 the Bill of Rights. In that era, death sentences were usually carried out by hanging. The Death Penalty in America: Current Controversies 4 (H. Bedau ed. 1997). Hanging remained the standard method of execution through much of the 19th century, but that began to change in the century's later years. See Baze, supra, at 41–42, 128 S.Ct. 1520. In the 1880's, the Legislature of the State of New York appointed a commission to find " ‘the most humane and practical method known to modern science of

576 U.S. 868

carrying into effect the sentence of death in capital cases.’ " In re Kemmler, 136 U.S. 436, 444, 10 S.Ct. 930, 34 L.Ed. 519 (1890).

135 S.Ct. 2732

The commission recommended electrocution, and in 1888, the Legislature enacted a law providing for this method of execution. Id., at 444–445, 10 S.Ct. 930. In subsequent years, other States followed New York's lead in the " ‘belief that electrocution is less painful and more humane than hanging.’ " Baze, 553 U.S., at 42, 128 S.Ct. 1520 (quoting Malloy v. South Carolina, 237 U.S. 180, 185, 35 S.Ct. 507, 59 L.Ed. 905 (1915) ).

In 1921, the Nevada Legislature adopted another new method of execution, lethal gas, after concluding that this was "the most humane manner known to modern science." State v. Jon, 46 Nev. 418, 437, 211 P. 676, 682 (1923). The Nevada Supreme Court rejected the argument that the use of lethal gas was unconstitutional, id., at 435–437, 211 P., at 681–682, and other States followed Nevada's lead, see, e.g., Ariz. Const., Art. XXII, § 22 (1933); 1937 Cal. Stats. ch. 172, § 1; 1933 Colo. Sess. Laws ch. 61, § 1; 1955 Md. Laws ch. 625, § 1, p. 1017; 1937 Mo. Laws p. 222, § 1. Nevertheless, hanging and the firing squad were retained in some States, see, e.g., 1961 Del. Laws ch. 309, § 2 (hanging); 1935 Kan. Sess. Laws ch. 155, § 1 (hanging); Utah Code Crim. Proc. § 105–37–16 (1933) (hanging or firing squad), and electrocution remained the predominant method of execution until the 9–year hiatus in executions that ended with our judgment in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). See Baze, supra, at 42, 128 S.Ct. 1520.

After Gregg reaffirmed that the death penalty does not violate the Constitution, some States once again sought a more humane way to carry out death sentences. They eventually adopted lethal injection, which today is "by far the most prevalent method of execution in the United States." Baze, supra, at 42, 128 S.Ct. 1520. Oklahoma adopted lethal injection in 1977, see 1977 Okla. Sess. Laws p. 89, and it eventually settled on a protocol that called for the use of three drugs: (1) sodium thiopental, "a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection," (2) a paralytic agent, which "inhibits all muscular-skeletal movements and, by paralyzing

576 U.S. 869

the diaphragm, stops respiration," and (3) potassium chloride, which "interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest." Baze, supra, at 44, 128 S.Ct. 1520 ; see also Brief for Respondents 9. By 2008, at least 30 of the 36 States that used lethal injection employed that particular three-drug protocol. 553 U.S., at 44, 128 S.Ct. 1520.

While methods of execution have changed over the years, "[t]his Court has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Id., at 48, 128 S.Ct. 1520. In Wilkerson v. Utah, 99 U.S. 130, 134–135, 25 L.Ed. 345 (1879), the Court upheld a sentence of death by firing squad. In In re Kemmler, supra, at 447–449, 10 S.Ct. 930, the Court rejected a challenge to the use of the electric chair. And the Court did not retreat from that holding even when presented with a case in which a State's initial attempt to execute a prisoner by electrocution was unsuccessful. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463–464, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (plurality opinion). Most recently, in Baze, supra, seven Justices agreed that the three-drug protocol just discussed does not violate the Eighth Amendment.

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional]

135 S.Ct. 2733

means of carrying it out." Id., at 47, 128 S.Ct. 1520. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. Ibid. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

B

Baze cleared any legal obstacle to use of the most common three-drug protocol that had enabled States to carry out the death penalty in a quick and painless fashion. But a practical

576 U.S. 870

obstacle soon emerged, as anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences. The sole American manufacturer of sodium thiopental, the first drug used in the standard three-drug protocol, was persuaded to cease production of the drug. After suspending domestic production in 2009, the company planned to resume production in Italy. Koppel, Execution Drug Halt Raises Ire of Doctors, Wall Street Journal, Jan. 25, 2011, p. A6. Activists then pressured both the company and the Italian Government to stop the sale of sodium thiopental for use in lethal injections in this country. Bonner, Letter from Europe: Drug Company in Cross Hairs of Death Penalty Opponents, N.Y. Times, Mar. 30, 2011; Koppel, Drug Halt Hinders Executions in the U.S., Wall Street Journal, Jan. 22, 2011, p. A1. That effort proved successful, and in January 2011, the company announced that it would exit the sodium thiopental market entirely. See Hospira, Press Release, Hospira Statement Regarding Pentothal ™ (sodium thiopental ) Market Exit (Jan. 21, 2011).

After other efforts to procure sodium thiopental proved unsuccessful, States sought an alternative, and they eventually replaced sodium thiopental with pentobarbital, another barbiturate. In December 2010, Oklahoma became the first State to execute an inmate using pentobarbital. See Reuters, Chicago Tribune, New Drug Mix Used in Oklahoma...

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