On June 29, 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.”

Dale Baich, one of the attorneys for the Oklahoma inmates, reacted to the Court’s ruling, stating, “Today’s ruling, which allows departments of corrections to use midazolam in lethal injection executions, contradicts the scientific and medical understanding of the drug’s properties. Because the Court declined to require that states follow scientific guidelines in determining their lethal injection procedures, states will be allowed to conduct additional human experimentation when they carry out executions by lethal injection. Despite the Court’s unwillingness to step in on this important issue, and given the substantial risk of harm, litigation surely will continue. We will continue to work in the courts to hold the states accountable in order to try and prevent botched executions in the future.”

DPIC has collected and reposted some of the commentary and analysis that has come out in the days and weeks since the decision was handed down.

Editorials About Glossip v. Gross:

• The Los Angeles Times – Editorial: Clock is ticking on California’s lethal injection question

• The (CA) Press Democrat – Editorial: Thumbs up, thumbs down

• The Wilmington (DE) News-Journal – Editorial: No avoiding questions on death penalty

• The Miami Herald – Editorial: Permission to execute

• The Palm Beach Post – Editorial: Better drug evidence needed before resuming executions

• The Chicago Sun-Times – Editorial: U.S. should follow Illinois, abolish death penalty

• The (MA) Republican – Supreme Court needs long look at capital punishment: Editorial

• (NH) Valley News – Editorial: Murder, Morality and the Death Penalty

• The Bergen (North Jersey) Record – Editorial: Capital punishment

• New York Times (EDITORIAL BLOG), Jesse Wegman, A Death the Supreme Court Should Remember

• The Charlotte Observer – Editorial: Put the death penalty on trial

• The (NC) News & Observer – Editorial: Lethal injection ruling should bring review of death penalty’s legality

• Akron Beacon-Journal – Editorial: Duty to execute with dignity

• (OH) Times Reporter – Editorial: Supreme Court upholds use of lethal injection drug

• (OH) Record-Courier – Editorial: OUR VIEW: RULING ON DEATH DRUG WON’T END DEBATE

• Toledo Blade – Editorial: Executing vigilance. Given the experience of this state and others, Ohio should not use the drug midazolam for lethal injections

• (OK) Enid News & Eagle – Editorial: Death row doesn’t deserve cruel, unusual punishment

• The Oklahoman – Editorial: Breyer dissent will help fuel anti-death penalty push

• Tulsa World – Editorial: Supreme Court: Oklahoma following constitutional protocol in executions

• The (SC) Post and Courier – Editorial: Ultimate crime, ultimate penalty

• The Dallas Morning News – Editorial: Addressing the death penalty head-on

Opinion and Commentary About the Glossip v. Gross Decision:

• SCOTUSBlog – Deborah Denno, Symposium: “Groundhog Day” indeed

• SCOTUSBlog – Steven D. Schwinn, Symposium: The Wonderland rules for method-of-execution claims

• SCOTUSBlog – Kent Scheidegger, Symposium: A major setback for the antidemocratic war of attrition against the death penalty

• National Constitution Center – Lyle Denniston, Constitution Check: Is the end of the death penalty in sight?

• Washington Post – Commentary: Radley Balko, There’s nothing ‘enlightened’ about executing the innocent

Austin Sarat, SCOTUS Doesn’t Care How You Kill a Man (Politico Magazine, June 29, 2015)


The Supreme Court just guaranteed that America will continue its long-held tradition of botched executions. Today’s decision in Glossip v Gross, upholding the use of midazolam in lethal injections, is in keeping with the court’s history of tolerating inhumane execution methods. As Justice Sotomayor wrote in her dissent, ‘under the court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.’” (Click for full article)

• Bloomberg Business – Commentary: Matt Stroud, Where Do the Death Penalty Abolitionists Go From Here?

• The Business Insider – Commentary: Christina Sterbenz, The Supreme Court is ignoring a huge wave in American politics

• The Chicago Tribune – Column: Bill Press, Time to Bury the Death Penalty

• The Clarion-Ledger – Column: Sid Salter, Ruling may signal end of death penalty

• Dorf on Law – Commentary: Michael Dorf, Evolving Standards of Decency That Mark the Progress of Maturing Justices

• The Economist ‘Democracy in America’ Blog – Commentary: E.B., Last gasps

• Gawker – Commentary: Hamilton Nolan, One Step on the Road to the End of the Death Penalty

• The Intercept – Commentary: Liliana Segura, WHAT JUSTICE BREYER’S DISSENT ON LETHAL INJECTION SHOWED ABOUT THE DEATH PENALTY’S DEFENDERS

• Huffington Post – Commentary: Adam Banner, U.S. Supreme Court Reaffirms Stance on Death Penalty

• Huffington Post – Commentary: Brandon L. Garrett and Lee Kovarsky, Last Words for the Death Penalty

• The Marshall Project – Commentary: Garrett Felber, Justice Breyer and Malcolm X

• The Marshall Project – Commentary: Evan Mandery, What Was Justice Breyer Really Saying?

• Mother Jones – Commentary: Stephanie Mencimer, I Just Took the Controversial Drug Used for the Death Penalty. Here’s What It Was Like.

• The Nation – Commentary: Bruce Shapiro, The Good News Buried in the Supreme Court’s Lethal Injection Decision

• Slate – Opinion: Robert J. Smith, The End of the Death Penalty?

• Take Part – Column: David A. Love, Is America Close to Ending the Death Penalty? Supreme Court Justice Stephen Breyer’s dissent on a lethal injection case puts the death penalty on trial.

• Tampa Tribune – Column: Joe Henderson, Sometimes juries get it wrong in death penalty cases, and then what?

• Townhall – Commentary: Matt Vespa, Here We Go Again: Is The Death Penalty Unconstitutional?

• The Week – Opinion: Michael Brendan Dougherty, What the Supreme Court missed about lethal injection: It’s not just cruel. It’s unusual.

• The London (ON) Free Press/Post Media Network (Canada) – Column: Robin Baranyai, Convicted killers may as well be burned at stake

• The Kokomo (IN) Tribune – Column: Dave Bangert: Pick your death penalty poison, Indiana - or not

News Coverage of Glossip v. Gross:

• Associated Press – Kate Brumrack, In Supreme Court loss, death penalty foes see an opening

• Houston Chronicle – Allan Turner, Citing Texas cases, Supreme Court justices question death penalty constitutionality

• Los Angeles Times – David G. Savage and Timothy M. Phelps, Supreme Court dissenters signal historic challenge to death penalty

• NBC News — Pete Williams and Tracy Connor, Death Penalty Case Inflames Supreme Court Passions

• National Public Radio – Nina Totenberg, Lethal Injection Ruling Draws Out Justices’ Passionate Opinions

• New York Times – Manny Fernandez, States Snub Execution Drug Approved by Supreme Court

• Politico – Adam B. Lerner, Justice Stephen Breyer’s dissent: Death penalty may be unconstitutional

• Propublica – Annie Waldman, Justice Alito Defends Lethal Injection Expert Who Did His Research on Drugs.com

• Reuters – Heide Brandes and Jon Herskovitz, Oklahoma to quickly resume executions after Supreme Court decision

• TIME – Josh Sanburn, Supreme Court Ruling Won’t Stop Search for Execution Drugs

• Washington Post – Mark Berman, What the Supreme Court’s decision on lethal injection means for executions in the U.S.

• Washington Post – Mark Berman, How states are responding to the Supreme Court’s lethal injection decision

• The Arizona Capitol Times – Gary Grado, Court OKs drug use in executions, but lawyer says that could change

• The Oklahoman – Chris Casteel, Oklahoma attorney general talks about recent state, U.S. Supreme Court decisions