Supreme Court of the United States

Richard E. Glossip, Petitioners v. Kevin J. Gross

June 29, 2015576 U.S. 863

Summary

The Supreme Court affirmed the Tenth Circuit's judgment denying a preliminary injunction against Oklahoma's three-drug lethal injection protocol, which uses a 500-milligram dose of midazolam as the first drug. It held that the prisoners failed to identify a known and available alternative method of execution presenting a lesser risk of pain, as Baze requires, and that the District Court did not clearly err in finding that midazolam is highly likely to render a person insensate to pain. The Court further rejected the argument that Hill v. McDonough eliminates the alternative-method requirement, explaining that Hill addressed §1983 pleading procedure rather than the substantive elements of a method-of-execution claim. Justice Scalia, joined by Justice Thomas, and Justice Thomas separately concurred; Justice Breyer, joined by Justice Ginsburg, dissented and urged full briefing on whether the death penalty itself violates the Constitution.

Holding

  • Whether petitioners identified a known and available alternative method of execution entailing a lesser risk of pain, as Baze requires.. No. Under Baze, a challenger must establish both that the State's protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to known and available alternatives; petitioners failed because the District Court's finding—that sodium thiopental and pentobarbital are unavailable to Oklahoma—is not clearly erroneous, and petitioners identified no other available drug or method presenting less risk.
  • Whether the District Court clearly erred in finding that a 500-milligram dose of midazolam will render the inmate insensate to pain during execution.. No. The District Court's finding that midazolam is highly likely to render a person unable to feel pain was not clearly erroneous; petitioners' own experts conceded there is no scientific testing or literature on midazolam at lethal doses, their ceiling-effect evidence was speculative, and Dr. Evans' credited testimony supported insensibility, reinforced by Oklahoma's procedural safeguards.
  • Whether Hill v. McDonough precludes requiring a challenger to plead and prove a known and available alternative method of execution.. No. Hill addressed only whether a method-of-execution claim proceeds via habeas corpus or §1983 and rejected a judicially created heightened pleading requirement; Baze supplies the substantive Eighth Amendment elements, including the alternative-method requirement, so Hill does not contradict or displace it.

Docket 14–7955.

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