Glossip v. Gross

Justia Summary

After Oklahoma adopted lethal injection as its method of execution, it used a three-drug protocol of sodium thiopental (a barbiturate) to induce a state of unconsciousness; a paralytic agent to inhibit all muscular-skeletal movements; and potassium chloride to induce cardiac arrest. In 2008 the Supreme Court held that that protocol did not violate the Eighth Amendment’s prohibition against cruel and unusual punishments. Anti-death-penalty advocates pressured pharmaceutical companies to prevent sodium thiopental and another barbiturate (pentobarbital) from being used in executions. Oklahoma substituted a 500-milligram dose of midazolam, a sedative. Oklahoma death-row inmates filed suit under 42 U.S.C. 1983, arguing that a 500-milligram dose of midazolam will not render them unable to feel pain associated with administration of the second and third drugs. The Tenth Circuit and Supreme Court affirmed rejection of their request for a preliminary injunction. The prisoners failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution. The Eighth Amendment requires a prisoner to plead and prove a known and available alternative. The state’s expert presented persuasive testimony that a 500-milligram dose of midazolam would make it virtually certain that an inmate will not feel pain associated with the second and third drugs; the prisoners’ experts acknowledged that they had no contrary scientific proof. It is not dispositive that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery. The Court upheld a conclusion that the safeguards adopted by Oklahoma to ensure proper administration of midazolam minimize any risk that the drug will not operate as intended.

X