Lethal Injection: Constitutional Issue


GLOSSIP V. GROSS, No. 14-7955
On June 29, 2015, the U.S. Supreme Court held (5-4) that Oklahoma inmates "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment." Three inmates on Oklahoma's death row had challenged the state's use of midazolam as the first drug in a three-drug protocol, saying that it "fails to render a person insensate to pain." In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a "known and available alternative method" that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution....Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."
(A. Liptak, "Supreme Court Allows Use of Execution Drug," New York Times, June 29, 2015; Glossip v. Gross, No. 14-7955; Press Release, Attorneys for Glossip, June 29, 2015).

See Petition for Certiorari. For more information on Glossip, see http://www.glossipvgross.com/.

On April 16, 2008, the Supreme Court ruled that Kentucky's three-drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment. Thirty-five of the 36 states with the death penalty and the federal government use lethal injection as their primary method of execution. Seven Justices wrote opinions in the case, indicating that the Court is far from a consensus about how to resolve additional challenges that are likely to arise.

Kentucky had conducted only one execution by lethal injection, and so the Court had only a limited record before it on which to judge the risks of severe pain from this process. In other states, including California, Missouri, and Tennessee, federal courts, with a different record before them, had found lethal injection procedures to be unconstitutional. According to Chief Justice John Roberts' opinion, litigants in other states will have to show there is a risk of severe pain that could be avoided by readily implementable and feasible alternatives that would significantly reduce the risk. Two Justices concurred with Roberts' opinion, though six Justices concurred in the judgment upholding Kentucky's law. Justices Ginsburg and Souter dissented, saying that the case should have been remanded back to Kentucky for further review of alternatives to the present protocol.

Justice John Paul Stevens concurred in the Court's judgment, but wrote separately, indicating that the current case does not resolve the entire issue of lethal injections:

I assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.

(See L. Greenhouse, "Justices Uphold Lethal Injection in Kentucky Case, " N.Y. Times, April 17, 2008). Read the opinion. To read the briefs in this case and in related cases, see Boalt Law School Web site.
UPDATE: As of Sept. 1, 2015, Ralph Baze, the petitioner in Baze v. Rees, remains on Kentucky's death row.

The question of whether federal courts could review challenges to the lethal injection process separate from an inmate's ordinary death penalty appeal was heard by the U.S. Supreme Court in the case of Clarence Hill of Florida on April 26, 2006. Hill's challenge to lethal injection was in the form of a civil rights suit (42 U.S.C. section 1983). The court below refused to consider the merits of his claim because it held that his claim was more properly part of his death penalty appeal, and that it was thus barred for its lateness. On June 12, 2006, the Supreme Court unanimously overruled the U.S. Court of Appeals, allowing Hill to proceed with his civil rights challenge to the lethal injection process.

Update: Clarence Hill's execution date was set by Florida's governor for Sept. 20, despite his victory in the Supreme Court. The District Court and 11th Circuit denied Hill a stay of execution and declined to conduct an evidentiary hearing on the lethal injection process. The U.S. Supreme Court denied a stay (5-4) and Hill was executed on Sept. 20, 2006.

Those raising lethal injection challenges (both those executed and those stayed) are generally claiming that the drugs used in the executions cause extreme and unnecessary pain, and that the combination of chemicals masks the pain being experienced by the inmate from the sight of those administering the death penalty. The appeals assert that this is a violation of the Eighth Amendment's ban on cruel and unusual punishments. Initial rulings from federal District Courts in California and Missouri have held the procedures in those states to be unconstitutional because they lack sufficient safeguards and oversight to ensure the orderly application of lethal injection.

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