The U.S. Supreme Court, in Glossip v. Gross decided June 29, upheld Oklahoma’s use of midazolam in its execution protocol.

The Court ruled 5-4 that the plaintiffs — death-sentenced inmates who challenged the drug’s use — failed to identify a known, available alternative execution method that carried a lesser risk of pain.  The Court also held that the district court did not commit clear error when it found that the inmates failed to prove use of midazolam entails a substantial risk of severe pain.

In a dissent that has attracted much attention, Justice Breyer, joined by Justice Ginsburg, said the death penalty “highly likely” violates the Eighth Amendment.  Their dissent provides a roadmap for defense counsel seeking to mount a death-penalty challenge.


After other drugs used for executions became unavailable due to manufacturers’ opposition to using them for that purpose, Oklahoma adopted midazolam as the first drug in its three-drug execution protocol.

Several death-sentenced inmates brought a Sec. 1983 action, contending the State’s protocol violated the Eighth Amendment because it created an unacceptable risk of severe pain, since it may fail to render an inmate insensate to pain.

The district court, after an evidentiary hearing with conflicting expert testimony, rejected the inmates’ claim.  The Tenth Circuit affirmed.

The Supreme Court affirmed.  “[B]ecause it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out,’” the Court said.  “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.”

Given the preliminary injunction posture of the case, the Court held that the inmates were required to prove “both that Oklahoma’s lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.” 

The majority concluded the inmates’ claim failed both tests. 

“First, petitioners have not proved that any risk posed by midazolam is substantial when compared to known and available alternative methods of execution,” the Court said.

Second, “[a]lthough petitioners expend great effort attacking peripheral aspects of [the State expert’s] testimony, they make little attempt to prove what is critical, i.e., that the evidence they presented to the District Court establishes that the use of midazolam is sure or very likely to result in needless suffering,” the Court said.

Dissenters Call for Full Briefing on Constitutionality of Death Penalty

Justice Breyer, joined by Justice Ginsburg, dissented, and called for full briefing on the “more basic question” of whether the death penalty itself violates the Eighth Amendment.

Reviewing application of the death penalty since the Court’s reinstatement of the death penalty in 1976, as well as his own experience on the Court during the past 20 years, Breyer said the current “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.”

The death penalty is unreliable, Breyer said, because there is “convincing evidence” that innocent people have been executed in the past 30 years, and 115 people originally sentenced to death have later been exonerated.  This “evidence of unreliability” is “stronger than the evidence we had before,” Breyer said.
“Four decades ago, the Court believed it was possible to interpret the Eighth Amendment in ways that would significantly limit the arbitrary application of the death sentence,” Breyer said.  “But that no longer seems likely.”

Breyer said that factors that should affect application of the death penalty, such as the comparatively egregiousness of the crime, often do not.  But improper factors such as race, gender and geography – both between states and within states — often do.

Long delays on death row are cruel, and undermine the death penalty’s penological purpose, Breyer said.  But those delays are necessary to try to ensure fairness and reliability.

“[W]e can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application.  We cannot have both,” Breyer said.

Breyer concluded by noting that the death penalty is “increasingly” becoming “unusual” in that, nationwide, fewer people are being sentenced to death than before, and fewer states have the death penalty or actual executions.

Justices Sotomayor and Kagan dissented on narrower grounds.  They said the district court was “factually wrong” in finding that midazolam does not pose an intolerable risk of severe pain.  They also said it was “legally indefensible” to find that the inmates were required to show an “alternative means by which the State may kill them.”

The Court relied on a “flawed syllogism,” they said.  “If the death penalty is constitutional, the Court reasons, then there must be a means of accomplishing it, and thus some available method of execution must be constitutional.” 

But, they said, “if all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and unusual punishment.”

Justices Scalia and Thomas wrote concurring opinions rebutting the dissenters.

The Glossip opinions suggest there now may be four votes on the Supreme Court to strike down the death penalty.  Whether that happens depends on finding a fifth vote, as well as the future composition of the Court.