Glossip v. Gross, Docket No. 14-7955,
on Appeal from the Tenth Circuit
“From this day forward, I shall no longer tinker with the machinery of death. For more than twenty years I have endeavored—indeed. I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation is eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”
In the current term of the United States Supreme Court, the Justices are set to decide a case which almost literally questions the “machinery of death” and the “death penalty experiment.”
The question the Court is presented in Glossip involves whether, (1) under the Eighth Amendment, state can continue to carry out lethal injections using a drug formula that they know does not sufficiently numb an inmate’s pain, after evidence of this failure has been manifested in prior executions; and (2) whether an inmate invoking the Eighth Amendment must identify an alternative method of execution in order to avoid an execution method. These issues should be of particular relevance to practitioners, especially those involved in capital defense, capital prosecution, habeas corpus, post-conviction representation, and criminal appellate practice. Glossip provides the Court an opportunity to fundamentally change the operation of the death penalty in all of the United States, especially in states that are struggling to deal with drug shortage.
The case of Glossip v. Gross primarily arises out of a major shortage of drugs used in lethal injection “cocktails.” European pharmaceutical companies have cancelled further sales to American states because they do not want their products used in executions, leaving states to try new manners of mixing lethal injection drugs or seek creative ways of finding the drug, such as underground markets. Glossip reached the Court after Oklahoma executed Clayton Lockett using a new drug formula experiment. The formula failed, as Lockett’s execution last for forty-three minutes and was characterized with loud moans and visible struggling. Lockett had previously applied for a stay of execution, invoking the Eighth Amendment prohibition on cruel and unusual punishment. Prior to Lockett’s execution, the Court had denied a challenge by another Oklahoma inmate, Charles Warner, who ultimately also experienced a long and visibly painful execution. The Court declined to stay the execution on the grounds that they did not see any feasible alternatives to the lethal injection formula. However, the Justices decided to hear the case of Glossip and three other inmates on Oklahoma’s death row inmates who sued after Lockett’s botched execution. The inmates sue on the basis that Oklahoma is in violation of the Eighth Amendment because they are prepared to carry out the executions despite the previous failure of their cocktail to painlessly execute Lockett.
There is not a particular wealth of Supreme Court case precedent to address the shortage of death penalty drugs. The last case that the Court addressed on the subject was the 2008 case of Baze v. Rees, in which a plurality Court rejected a prisoner’s Eighth Amendment claim regarding newer drug cocktails. However, the Court left open the possibility that should a death penalty procedure be sure to incite pain and suffering or threaten pain and suffering, it could fail the “cruel and unusual punishment standard.” The Court held that if an inmate can show severe likelihood of imminent pain, the Eighth Amendment can block the execution.
The second issue in the case involves whether an inmate must identify a different method of execution in order to succeed in an Eighth Amendment claim. Baze does not offer much guidance on this particular matter, as it was not addressed by the Court. Further Baze held that showing an alternative execution method was not sufficient basis for inmates to show an Eighth Amendment challenge. The Court heard a similar question in their denial of a stay to Warner, the case immediately preceding Glossip. The Court held that an inmate must identify a feasible alternative. The Court seems poised to reassess that issue in the Glossip case, particularly given the fact that there is evidence of physical pain that may fit the Baze standard.
Glossip and the other petitioners are hoping that the prior executions, in which there was visible pain and suffering by the inmate, will satisfy the Baze standard and stay their executions. Glossip’s case also hinges on whether the Court will view lower courts’ holdings favorably. In Cooey v. Kasich,the federal district court held that Ohio’s new drug experimentation violated the Eighth Amendment, as evidence showed the drug combination would likely cause severe pain. Similarly, in Arthur v. Thomas, the Eleventh Circuit reversed a lower court’s decision to proceed with an execution under a new drug formula primarily on the grounds that using new formulas subjected inmates to a severe risk of pain thus could not be valid under the Eighth Amendment.
On the second issue, Glossip will particularly argue that the Warner case was wrongly decided in the light of the new factual record. They will primarily assert that an inmate’s rights under the Eighth Amendment should not be subject to their ability to identify other methods of execution. There is little precedential basis to determine how the Court will further proceed. Cooey may also provide Glossip further basis, as the court held that a state cannot use a cruel and unusual drug cocktail in lethal injections for the sake of convenience or efficiency. Glossip can also find some support for this argument among some of the justices, as Justice Sotomayor wrote a harsh dissent in the Warner case, stating “It would be odd if the constitutionality of being burned alive, for example, turned on a challenger’s ability to point to an available guillotine.”
Oklahoma’s arguments in the case will be more centered on precedents that have upheld the death penalty as constitutionally valid under the Eighth Amendment. The Court affirmed as much is Baze, while also holding that states are allowed to experiment and seek new methods of drugs. The Court also held that it is permissible for an execution to involve pain to an inmate, so long as the pain is such that is inevitable from an execution. The states can also assert that the evidence that the inmates’ execution is not pervasive enough to constitute an “objectively intolerable risk of harm” that qualifies as cruel and unusual. Further, the respondent will rely on the 5-4 majority decision in the Warner case that inmates challenging an execution method must indicate an alternative method. The petitioners have not identified an alternative method in their filings. Oklahoma is hoping that the previous 5-4 majority will still hold in the Glossip case.
The Court’s decision in Glossip v. Gross has the potential to alter the current “machinery of death” and the future of capital punishment. The outcome is also fairly difficult to predict, as the Justices have a different factual distinction between Baze and the preceding cases. However, based on the Baze opinions, it would be reasonable to expect Ginsburg, Breyer, Sotomayor, and Kagan to side with Glossip. Roberts wrote the plurality opinion of Baze, in which Alito and Kennedy joined. Alito wrote a separate opinion asserting that claims similar to Baze would be fact-specific and case-by-case, in which Kennedy, Scalia, and Thomas joined. Therefore, it is unclear how the Court will decide, but it is likely that the Court will avoid a broad ruling staying executions on a broad level similar to the Court’s landmark decision of Furman v. Georgia, particularly since the conservative block of the justices do have a preference to defer to states on matters of the death penalty. Regardless, the Court’s decision will have various and substantial impacts on states’ implementation of the death penalty that will be relevant as long as the drug shortage continues to be pervasive.
Staffer, Criminal Law Practitioner