Glossip v. Gross (2015)

576 U.S. _

Case Year: 2015

Case Ruling: 5-4, Affirmed

Opinion Justice: Alito

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Kennedy, Roberts, Scalia, Thomas


1st Concurring Opinion

Author: Scalia


1st Dissenting Opinion

Author: Breyer


2nd Concurring Opinion

Author: Thomas


2nd Dissenting Opinion

Author: Sotomayor


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Efforts during the latter part of the twentieth century to find a more humane way to administer executions eventually led to the adoption of lethal injection. Today lethal injection is the primary method of administering the death penalty in all U.S. jurisdictions that permit executions. In the past, most death penalty jurisdictions employed a three-drug protocol: 1) sodium thiopental, a barbiturate sedative that induces a deep unconsciousness, 2) a paralytic agent (pancuronium bromide) that stops muscular-skeletal movement and respiration; and 3) potassium chloride that results in cardiac arrest. In Baze v. Rees (2008), the Supreme Court rejected arguments that this method constituted cruel and unusual punishment.

Anti-death penalty groups responded by successfully pressuring manufacturers of sodium thiopental (and pentobarbital, an alternative drug) to cease production or refuse to make the drug available for executions. As supplies dwindled, states searched for a substitute sedative. Some states began using midazolam, a benzodiazepine sedative.

In November 2014, after Oklahoma switched to midazolam, four convicted murderers on that state’s death row, Richard Glossip, Benjamin Cole, John Grant, and Charles Warner, sued Kevin J. Gross and other members of the state Board of Corrections. They requested a preliminary injunction to stop their executions using the new drug protocol. All four had exhausted other procedural avenues to avoid execution. They claimed that midazolam was ineffective at eliminating the pain associated with the application of the second and third drugs.

The district court conducted a three-day evidentiary hearing involving 17 witnesses and numerous exhibits. Key testimony for the condemned petitioners was provided by Dr. David Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a doctor of pharmacy. The state’s key witness was Dr. Roswell Evans, a doctor of pharmacy. At the conclusion of the hearing, the judge found it a virtual certainty that a 500-milligram dose of midazolam would effectively induce a sufficient level of unconsciousness to remove the risk of severe pain. The court of appeals affirmed. Oklahoma executed Warner in January 2015, but the other three inmates were able to secure Supreme Court review.



Prisoners sentenced to death in the State of Oklahoma filed an action in federal court . . . 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. . . .

The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” The controlling opinion in Baze [v. Rees (2008)] outlined what a prisoner must establish to succeed on an Eighth Amendment method-of-execution claim. . . .

The controlling opinion summarized the requirements of an Eighth Amendment method-of-execution claim as follows: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. [And] [h]e must show that the risk is substantial when compared to the known and available alternatives.” The preliminary injunction posture of the present case thus requires petitioners to establish a likelihood that they can establish 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. . . .

Our first ground for affirmance is based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution. In their amended complaint, petitioners proffered that the State could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. But the District Court found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma’s Department of Corrections, [and] the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so.

Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion inBaze, which imposed a requirement that the Court now follows. . . .

We also affirm for a second reason: The District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution. . . .

[W]e review the District Court’s factual findings under the deferential “clear error” standard. This standard does not entitle us to overturn a finding “simply because [we are] convinced that [we] would have decided the case differently.”Anderson v. Bessemer City (1985). . . .

Petitioners attack the District Court’s findings of fact on two main grounds. First, they argue that even if midazolam is powerful enough to induce unconsciousness, it is too weak to maintain unconsciousness and insensitivity to pain once the second and third drugs are administered. Second, while conceding that the 500-milligram dose of midazolam is much higher than the normal therapeutic dose, they contend that this fact is irrelevant because midazolam has a “ceiling effect”—that is, at a certain point, an increase in the dose administered will not have any greater effect on the inmate. Neither argument succeeds.

The District Court found that midazolam is capable of placing a person “at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.” This conclusion was not clearly erroneous. Respondents’ expert, Dr. Evans, testified that the proper administration of a 500-milligram dose of midazolam would make it “a virtual certainty” that any individual would be “at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from application of the 2nd and 3rd drugs” used in the Oklahoma protocol. And petitioners’ experts acknowledged that they had no contrary scientific proof. . . .

Petitioners attempt to avoid this deficiency by criticizing respondents’ expert. They argue that the District Court should not have credited Dr. Evans’ testimony because he admitted that his findings were based on “ ‘extrapolat[ions]’ ” from studies done about much lower therapeutic doses of midazolam. But because a 500-milligram dose is never administered for a therapeutic purpose, extrapolation was reasonable. And the conclusions of petitioners’ experts were also based on extrapolations and assumptions. For example, Dr. Lubarsky relied on “extrapolation of the ceiling effect data.”

Based on the evidence that the parties presented to the District Court, we must affirm. Testimony from both sides supports the District Court’s conclusion that midazolam can render a person insensate to pain. Dr. Evans testified that although midazolam is not an analgesic, it can nonetheless “render the person unconscious and ‘insensate’ during the remainder of the procedure.” In his discussion about the ceiling effect, Dr. Sasich agreed that as the dose of midazolam increases, it is “expected to produce sedation, amnesia, and finally lack of response to stimuli such as pain (unconsciousness).” Petitioners argue that midazolam is not powerful enough to keep a person insensate to pain after the administration of the second and third drugs, but Dr. Evans presented creditable testimony to the contrary. Indeed, low doses of midazolam are sufficient to induce unconsciousness and are even sometimes used as the sole relevant drug in certain medical procedures. Dr. Sasich conceded, for example, that midazolam might be used for medical procedures like colonoscopies and gastroscopies.

Petitioners emphasize that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery, but there are two reasons why this is not dispositive. First, as the District Court found, the 500-milligram dose at issue here “is many times higher than a normal therapeutic dose of midazolam.” . . . Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution. . . .

Oklahoma has also adopted important safeguards to ensure that midazolam is properly administered. . . . The District Court did not commit clear error in concluding that these safeguards help to minimize any risk that might occur in the event that midazolam does not operate as intended. Indeed, we concluded in Baze that many of the safeguards that Oklahoma employs—including the establishment of a primary and backup IV and the presence of personnel to monitor an inmate—help in significantly reducing the risk that an execution protocol will violate the Eighth Amendment. . . .

Petitioners argue that midazolam has a “ceiling” above which any increase in dosage produces no effect. As a result, they maintain, it is wrong to assume that a 500-milligram dose has a much greater effect than a therapeutic dose of about 5 milligrams. But the mere fact that midazolam has such a ceiling cannot be dispositive. Dr. Sasich testified that “all drugs essentially have a ceiling effect.” The relevant question here is whether midazolam’s ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain caused by the second and third drugs.

Petitioners provided little probative evidence on this point, and the speculative evidence that they did present to the District Court does not come close to establishing that its factual findings were clearly erroneous. Dr. Sasich stated in his expert report that the literature “indicates” that midazolam has a ceiling effect, but he conceded that he “was unable to determine the midazolam dose for a ceiling effect on unconsciousness because there is no literature in which such testing has been done.” . . .

In their brief, petitioners attempt to deflect attention from their failure of proof regarding midazolam’s ceiling effect by criticizing Dr. Evans’ testimony. But it was petitioners’ burden to establish that midazolam’s ceiling occurred at a dosage below the massive 500-milligram dose employed in the Oklahoma protocol and at a point at which the drug failed to render the recipient insensate to pain. They did not meet that burden….

Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.

For these reasons, the judgment of the Court of Appeals for the Tenth Circuit is affirmed.

It is so ordered.


Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11–month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. They rely on this provision because it is the only provision they can rely on. They were charged by a sovereign State with murder. They were afforded counsel and tried before a jury of their peers—tried twice, once to determine whether they were guilty and once to determine whether death was the appropriate sentence. They were duly convicted and sentenced. They were granted the right to appeal and to seek post conviction relief, first in state and then in federal court. And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give.

The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist thatnow, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.” Nevertheless, today Justice Breyer takes on the role of the abolitionists in this long-running drama, arguing that the text of the Constitution and two centuries of history must yield to his “20 years of experience on this Court,” and inviting full briefing on the continued permissibility of capital punishment.

Historically, the Eighth Amendment was understood to bar only those punishments that added “ ‘terror, pain, or disgrace’ ” to an otherwise permissible capital sentence. Baze v. Rees (2008) (Thomas, J., concurring in judgment). Rather than bother with this troubling detail, Justice Breyer elects to contort the constitutional text. Redefining “cruel” to mean “unreliable,” “arbitrary,” or causing “excessive delays,” and “unusual” to include a “decline in use,” he proceeds to offer up a white paper devoid of any meaningful legal argument. . . .

If we were to travel down the path that Justice Breyer sets out for us and once again consider the constitutionality of the death penalty, I would ask that counsel also brief whether our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop [v. Dulles (1958)], should be overruled. That case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind. Justice Breyer’s dissent is the living refutation of Trop’s assumption that this Court has the capacity to recognize “evolving standards of decency.” Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes. Time and again, this Court has upheld that decision. And time and again, a vocal minority of this Court has insisted that things have “changed radically” and has sought to replace the judgments of the People with their own standards of decency.

Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.


I agree with the Court that petitioners’ Eighth Amendment claim fails. That claim has no foundation in the Eighth Amendment, which prohibits only those “method[s] of execution” that are “deliberately designed to inflict pain.” Baze v. Rees (2008) (Thomas, J., concurring in judgment). Because petitioners make no allegation that Oklahoma adopted its lethal injection protocol “to add elements of terror, pain, or disgrace to the death penalty,” they have no valid claim. That should have been the end of this case, but our precedents have predictably transformed the federal courts “into boards of inquiry charged with determining the ‘best practices’ for executions,” necessitating the painstaking factual inquiry the Court undertakes today. Although I continue to believe that the broader interpretation of the Eighth Amendment advanced in the plurality opinion in Baze is erroneous, I join the Court’s opinion in full because it correctly explains why petitioners’ claim fails even under that controlling opinion.


For the reasons stated in Justice Sotomayor’s opinion, I dissent from the Court’s holding. But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.

The relevant legal standard is the standard set forth in the Eighth Amendment. The Constitution there forbids the “inflict[ion]” of “cruel and unusual punishments.” The Court has recognized that a “claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia(2002). . . .

Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court’s view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. See Gregg v. Georgia (1976). The circumstances and the evidence of the death penalty’s application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.

In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. 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.

. . . [T]hose changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishment.” . . .

I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legislators, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here.

The answer is that . . . matters . . . such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.

Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. See Marbury v. Madison (1803). We have made clear that “the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” [Hall v. Florida (2014)].

For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.

With respect, I dissent.


Petitioners, three inmates on Oklahoma’s death row, challenge the constitutionality of the State’s lethal injection protocol. The State plans to execute petitioners using three drugs: midazolam, rocuronium bromide, and potassium chloride. The latter two drugs are intended to paralyze the inmate and stop his heart. But they do so in a torturous manner, causing burning, searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious. Petitioners claim that midazolam cannot be expected to perform that function, and they have presented ample evidence showing that the State’s planned use of this drug poses substantial, constitutionally intolerable risks.

Nevertheless, the Court today turns aside petitioners’ plea that they at least be allowed a stay of execution while they seek to prove midazolam’s inadequacy. The Court achieves this result in two ways: first, by deferring to the District Court’s decision to credit the scientifically unsupported and implausible testimony of a single expert witness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions. On both counts the Court errs. As a result, it leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake. . . .

I begin with the . . . the Court’s . . . holding . . . that the District Court properly found that petitioners did not demonstrate a likelihood of showing that Oklahoma’s execution protocol poses an unconstitutional risk of pain. In reaching this conclusion, the Court sweeps aside substantial evidence showing that, while midazolam may be able toinduce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli. Instead, like the District Court, the Court finds comfort in Dr. Evans’ wholly unsupported claims that 500 milligrams of midazolam will “paralyz[e] the brain.” In so holding, the Court disregards an objectively intolerable risk of severe pain. . . .

. . . Dr. Evans’ conclusions were entirely unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of midazolam’s properties, and apparently premised on basic logical errors. Given these glaring flaws, the District Court’s acceptance of Dr. Evans’ claim that 500 milligrams of midazolam would “paralyz[e] the brain” cannot be credited. This is not a case “[w]here there are two permissible views of the evidence,” and the District Court chose one; rather, it is one where the trial judge credited “one of two or more witnesses” even though that witness failed to tell “a coherent and facially plausible story that is not contradicted by extrinsic evidence.” Anderson v. Bessemer City (1985). In other words, this is a case in which the District Court clearly erred.

Setting aside the District Court’s erroneous factual finding that 500 milligrams of midazolam will necessarily “paralyze the brain,” the question is whether the Court is nevertheless correct to hold that petitioners failed to demonstrate that the use of midazolam poses an “objectively intolerable risk” of severe pain. I would hold that they made this showing. That is because, in stark contrast to Dr. Evans, petitioners’ experts were able to point to objective evidence indicating that midazolam cannot serve as an effective anesthetic that “render[s] a person insensate to pain caused by the second and third [lethal injection] drugs.”

. . . [T]hese experts cited multiple sources supporting the existence of midazolam’s ceiling effect. That evidence alone provides ample reason to doubt midazolam’s efficacy. Again, to prevail on their claim, petitioners need only establish an intolerable risk of pain, not a certainty. Here, the State is attempting to use midazolam to produce an effect the drug has never previously been demonstrated to produce, and despite studies indicating that at some point increasing the dose will not actually increase the drug’s effect. The State is thus proceeding in the face of a very real risk that the drug will not work in the manner it claims.

Moreover, and perhaps more importantly, the record provides good reason to think this risk is substantial. . .

. . . Dr. Lubarsky was quite clear. He . . . noted that “[t]he drug would never be used and has never been used as a sole anesthetic to give anesthesia during a surgery” and asserted that “the drug was not approved by the FDA as a sole anesthetic because after the use of fairly large doses that were sufficient to reach the ceiling effect and produce induction of unconsciousness, the patients responded to the surgery.” Thus, Dr. Lubarsky . . . could specify that at no level would midazolam reliably keep an in-mate unconscious once the second and third drugs were delivered. . . .

Finally, none of the State’s “safeguards” for administering these drugs would seem to mitigate the substantial risk that midazolam will not work, as the Court contends. Protections ensuring that officials have properly secured a viable IV site will not enable midazolam to have an effect that it is chemically incapable of having. Nor is there any indication that the State’s monitoring of the inmate’s consciousness will be able to anticipate whether the inmate will remain unconscious while the second and third drugs are administered. No one questions whether midazolam can induce unconsciousness. The problem . . . is that an unconscious inmate may be awakened by the pain and respiratory distress caused by administration of the second and third drugs. At that point, even if it were possible to determine whether the inmate is conscious—dubious, given the use of a paralytic—it is already too late. . . .

The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is factually wrong. . . .

“By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his or her own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price. I dissent.