2015 SCMR 1601

RICHARD E. GLOSSIP, ET AL VS KEVIN J. GROSS, ET AL

Petitioner: RICHARD E. GLOSSIP, ET AL VS Respondent: KEVIN J. GROSS, ET ALHonorable Justice JUSTICE ALITO

Full Judgment Text & Judicial Ruling

2015 S C M R 1601

[Supreme Court of the United States]

Present: John G. Roberts, C.J., Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Samuel Anthony Alito and Clarence Thomas, JJ

RICHARD E. GLOSSIP, ET AL---Petitioners

versus

KEVIN J. GROSS, ET AL---Respondents

Decided on 29th June, 2015.

(On writ of Certiorari to the United States Court of Appeals for the Tenth Circuit No.14-7955)

Per Samuel Anthony Alito, JSC; John G. Roberts, CJ, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, JJSC, agreeing; Stephen G. Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, JJSC, dissenting.

(a) Criminal trial---

Following are the reasons for allowing the use of the sedative in question, as a part of the three-drug injection formula for executing death-row prisoners.

Petitioners failed to identify and prove a known and available alternative method of execution that entailed a lesser risk of pain, a requirement of all method of execution claims [under the Eighth Amendment (Amendment VIII) to the United States Constitution]; failed to satisfy their burden of establishing that any risk of harm by using the sedative in question was substantial when compared to a known and available alternative method of execution, and also failed to establish that the State's use of a massive dose of the sedative in its execution protocol entailed a substantial risk of severe pain.

Baze v. Rees, 553 U.S. 35, 61 (2008) ref.

Hill v. McDonough, 547 U.S. 573 (2006) distinguished.

Case record showed that the State had been unable to procure alternative drugs/sedatives, suggested by the petitioners, despite a good-faith effort to do so. Petitioners had not identified any available drug or drugs that could be used in place of those suggested by the petitioners, which the State was now unable to obtain.

Expert evidence presented by both sides in the present case supported the conclusion that the sedative in question could render a person insensate to pain.

Chavez v. Florida SP Warden, 742 F. 3d 1267; Banks v. State, 150 So. 3d 797 (Fla. 2014); Howell v. State, 133 So. 3d 511 (Fla. 2014) and Muhammad v. State, 132 So. 3d 176 (Fla. 2013) ref.

Some risk of pain was inherent in any method of execution. Constitution (of the United States of America) did not require the avoidance of all risk of pain. Holding that the prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution] demanded the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

State in question had also adopted important safeguards to ensure that the sedative was properly administered. Such safeguards helped to minimize any risk that might occur in the event that the sedative did not operate as intended.

Petitioners had contended that the sedative had a "ceiling effect" above which any increase in dosage produced no effect, because of which it was wrong to assume that a high dose of 500 milligrams of the sedative used by the State had a much greater effect than a therapeutic dose of about 5 milligrams. Burden of proving such fact was on the petitioners, however they did not meet such burden in the present case. Mere fact that the sedative had such a "ceiling effect" could not be dispositive. Expert evidence on record suggested that all drugs essentially had a ceiling effect. Relevant question in the present case was whether the sedative's ceiling effect occurred below the level of a 500 milligram dose and at a point at which the drug did not have the effect of rendering a person insensate to pain caused by the second and third drugs. Petitioners provided little probative evidence on such point, and the speculative evidence that they did present to the District Court below did not come close to establishing the sedative did not have the ability to render a prisoner insensate to pain caused by the second and third drugs in the lethal injection protocol.

(b) Criminal trial---

----Sentence---Death sentence---Method of carrying out a death sentence--- Different methods of carrying out death sentences adopted in the United States of America since the time of the adoption of the United States Constitution and the Bill of Rights to ensure that death sentences were executed in the most humane manner stated.

----Sentence---Death sentence---Method of carrying out a death sentence---When it was settled that capital punishment was Constitutional, it necessarily followed that there must be a Constitutional means of carrying it out.

Per Antonin Scalia, JSC; Clarence Thomas, JSC, concurring.

(d) Criminal trial---

----Sentence---Death sentence, Constitutionality of---Observations and reasons recorded in support of the view that punishment of death sentence was permissible and explicitly contemplated by the Constitution (of the United States of America) stated---Critique of the dissenting opinions in the present case which suggest that the death penalty was cruel, unconstitutional and not a significant deterrent stated.

Per Clarence Thomas, JSC; Antonin Scalia, JSC, concurring.

(e) Criminal trial---

Per Stephen G. Breyer, JSC; dissenting with Samuel Anthony Alito, Antonin Scalia and Clarence Thomas, JJSC. [Minority view]

(f) Criminal trial---

---Sentence---Death sentence, Constitutionality of---Critique of the use of the death penalty in the United States of America---Arbitrary imposition of punishment was the antithesis of the rule of law---Death penalty in general may violate the prohibition against the infliction of "cruel and unusual punishments" [Eighth Amendment (Amendment VIII) to the United States Constitution]---Use of death penalty in present times involved fundamental Constitutional defects, namely, serious unreliability; arbitrariness in application, and unconscionably long periods of time spent by prisoners on death row, which aggravated the cruelty of the death penalty and undermined its penological purpose---Survey of case-law and research studies (in the US) from the last four decades showed that innocent people had been executed; that exonerations occurred far more frequently where capital convictions, rather than ordinary criminal convictions, were at issue; that in cases of capital punishment there was a greater likelihood of an initial wrongful conviction because the crimes at issue were typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction; that flawed forensic evidence/testimonies had been used in securing death sentences; that in many instances courts sentenced defendants to death without complying with the necessary procedures; that death sentences were imposed capriciously and randomly, i.e., without the reasonable consistency legally necessary to reconcile its use with the Constitution's commands; that factors that most clearly ought to determine as to who received the death penalty, namely, comparative egregiousness of the crime, often did not, while circumstances that ought not to significantly determine application of the death penalty, such as race, gender, local geography, and resources and community biases, often did; that the capital justice system was warped by political pressures; that whatever interest in retribution might be served by the death penalty as presently administered, that interest could be served almost as well by a sentence of life in prison without parole, and that statistical and empirical evidence did not suggest that the death penalty had a significant deterrent effect---System of death penalty that sought procedural fairness and reliability brought with it delays that severely aggravated the cruelty of capital punishment and significantly undermined the rationale for imposing a sentence of death in the first place---Compensation of attorneys for death penalty representation remained inadequate, and it had not proved possible to increase capital defense funding significantly---Nearly all prisoners on death row were in isolation for most of the day, and such prolonged solitary confinement produced numerous deleterious harms---Dehumanizing effect of solitary confinement was aggravated by uncertainty as to whether a death sentence would in fact be carried out---Furthermore, given the negative effects of confinement and uncertainty, many death row inmates volunteered to be executed, abandoning further appeals or considered committing suicide---Detailed reasons stated. [Minority view]

Kansas v. Marsh, 548 U.S. 163, 207-211 (2006); Atkins, 536 U.S., at 320, n. 25; National Registry of Exonerations (http://www.law.umich.edu/special/exoneration/Pages/about. aspx (all Internet materials as visited June 25, 2015); Gross, Jacoby, Matheson, Montgomery & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531-533 (2005); Gross & O'Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical L. Studies 927, 956-957(2008); B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011); Rozelle, The Principled Executioner: Capital Juries' Bias and the Benefits of True Bifurcation, 38 Ariz. S.L.J. 769, 772-793, 807 (2006); Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification, 10 Roger Williams Univ. L. Rev. 211, 214-223 (2004); Gross, O'Brien, Hu, & Kennedy, Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proceeding of the National Academy of Sciences 7230 (2014); Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007); Gelman, Liebman, West, & Kiss, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical L. Studies 209, 217 (2004); Earley, A Pink Cadillac, An IQ of 63, and A Fourteen-Year-Old from South Carolina: Why I Can No Longer Support the Death Penalty, 49 U. Rich. L. Rev. 811, 813 (2015); Furman v. Georgia, 408 U. S. 238 (1972) (per curiam); Eddings v. Oklahoma, 455 U. S. 104, 112 (1982); Donohue, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities? 11 J. Empirical Legal Studies 637 (2014); Shatz & Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1245-1251 (2013); Smith, The Geography of the Death Penalty and its Ramifications, 92 B. U. L. Rev. 227, 231-232 (2012); Goelzhauser, Prosecutorial Discretion Under Resource Constraints: Budget Allocations and Local Death Charging Decisions, 96 Judicature 161, 162-163 (2013); Barnes, Sloss, & Thaman, Place Matters (Most): An Empirical Study of Prosecutorial Decision Making in Death-Eligible Cases, 51Ariz. L. Rev. 305 (2009); Donohue,An Empirical Evaluation of the Connecticut Death Penalty System, at 681 (Connecticut); Marceau, Kamin, & Foglia, Death Eligibility in Colorado: Many Are Called, Few Are Chosen, 84 U. Colo. L. Rev. 1069 (2013); Liebman & Clarke, Minority Practice, Majority's Burden: The Death Penalty Today, 9 Ohio S. J. Crim. L. 255, 274 (2011); Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835 (1994); Smith, The Supreme Court and the Politics of Death, 94 Va. L. Rev. 283, 355 (2008); Callins v. Collins, 510 U. S. 1141, 1153 (1994); Gomez v. Fierro, 519 U. S. 918 (1996); Lackey v. Texas, 514 U. S. 1045 (1995); Knight v. Florida, 528 U. S. 990, 993 (1999); Thompson v. McNeil, 556 U. S. 1114, 1115 (2009); ACLU, A Living Death:Life Without Parole for Nonviolent Offenses 11, and n. 10 (2013); Atkins, 536 U. S., at 319 and Enmund v. Florida, 458 U. S. 782, 798 (1982) ref.

(g) Criminal trial---

----Sentence---Death sentence, constitutionality of---Significant decline in the use of death penalty in the United States of America in the last few decades illustrated through statistics warranting a reconsideration of the Constitutionality of the death penalty stated. [Minority view]

Per Sonia Sotomayor, JSC; dissenting with Samuel Anthony Alito, Antonin Scalia and Clarence Thomas, JJSC. [Minority view]

(h) Criminal trial---

----Sentence--- Death sentence---Method of carrying out death sentence---Prohibition against carrying out death sentence by a method that was cruel and created a demonstrable risk of severe pain---Death sentence carried out through administration of lethal injection---Death sentences were carried out by the State in question through a three-drug protocol administered through injections, in which the first drug, a sedative rendered the prisoner unconscious, so that he did not feel the severe pain caused by the second and third injected drugs, which paralyzed the prisoner and stopped the heart---Petitioners, who were death-row prisoners, challenged the use of the sedative as the first drug in the lethal injection process by contending that evidence suggested that the sedative failed to render a person insensate to the pain caused by the administration of the second and third drugs, thus its use to carry out executions, violated their Constitutional right of prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution]---Validity---Where a State wished to vary out a death sentence, it must do so subject to the constraints that the Constitution (of the United States of America) imposed on it, including the obligation to ensure that its chosen method was not cruel and unusual---Method of executing a condemned prisoner that was barbarous or involved torture or a lingering death, did not become less so just because it was the only method currently available---Where all available means of conducting an execution constituted cruel and unusual punishment, then conducting the execution would constitute cruel and usual punishment---Nothing compelled a State to perform an execution---Prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution] should have barred the State in question from using the disputed sedative drug as part of a lethal injection protocol because it could not be trusted to render and keep a condemned prisoner unconscious, leaving him open to pain at the later stages of his execution---District Court below relied on scientifically implausible testimony of State's expert witnesses to determine the effectiveness of the sedative in question in rendering a person insensate to pain---Such expert evidence was unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of the sedative's properties, and apparently premised on basic logical errors---In stark contrast to the State's expert evidence, petitioners' experts cited multiple sources to point to objective evidence indicating that sedative in question could not serve as an effective anesthetic that rendered a person insensate to pain, and that it had a ceiling effect, which meant that there was a point at which increasing the dose of the sedative did not result in any greater effect---Such evidence alone provided ample reason to doubt the sedative's efficacy---Petitioners only had to establish an intolerable risk of pain, not a certainty---Petitioners failure in the present case to identify a known and available alternative method of execution that entailed a lesser risk of pain was irrelevant as a condemned prisoner had no duty to devise or pick a Constitutional instrument of his or her own death---Safeguards adopted by the State in the present case to ensure that the disputed sedative was properly administered did not seem to mitigate the substantial risk that the such sedative would not work---Petitioners in the present case had no part in creating the shortage of execution drugs, that had been effectively and successfully used for executions before the use of the disputed sedative; it was odd to punish the petitioners for the actions of pharmaceutical companies and others who sought to disassociate themselves from the death penalty---Execution protocols that States hurriedly devised as to locate new and untested drugs, such as the disputed sedative in the present case, were all the more likely to be cruel and unusual---Presumably, such drugs would have been the States' first choice were they in fact more effective---Courts' review of execution methods should be more, not less, searching when States were engaged in what was in effect human experimentation---By protecting even those convicted of heinous crimes, the prohibition on cruel and unusual punishment [Eighth Amendment (Amendment VIII) to the United States Constitution] reaffirmed the duty of the government to respect the dignity of all persons. Detailed reasons stated. [Minority view]

Date of hearing: 29th April, 2015.

JUDGMENT

JUSTICE ALITO delivered the opinion of the Court.

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. 1979, 42 U.S.C. 1983, 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 per son insensate to pain. After holding an evidentiary hear ing, the District Court denied four prisoners' application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The Court of Ap peals for the Tenth Circuit affirmed and accepted the District Court's finding of fact regarding midazolam's efficacy.

For two independent reasons, we also affirm. First, the prisoners failed to identify a known and available alterna tive method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of -execution claims. See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion). Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma's use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

I A

The death penalty was an accepted punishment at the time of the adoption of the Constitution and the Bill of Rights. In that era, death sentences were usually carried out by hanging. The Death Penalty in America: Current Controversies 4 (H. Bedau ed. 1997). Hanging remained the standard method of execution through much of the 19th century, but that began to change in the century's later years. See Baze, supra, at 41-42. In the 1880's, the Legislature of the State of New York appointed a commis sion to find "'the most humane and practical method known to modern science of carrying into effect the sen tence of death in capital cases.'' In re Kemmler, 136 U.S. 436, 444 (1890). The commission recommended electrocu tion, and in 1888, the Legislature enacted a law providing for this method of execution. Id., at 444-445. In subse quent years, other States followed New York's lead in the "'belief that electrocution is less painful and more humane than hanging.'' Baze, 553 U.S., at 42 (quoting Malloy v. South Carolina, 237 U.S. 180, 185 (1915)).

In 1921, the Nevada Legislature adopted another new method of execution, lethal gas, after concluding that this was "the most humane manner known to modern science.' State v. Jon, 46 Nev. 418, 437, 211 P. 676, 682 (1923). The Nevada Supreme Court rejected the argument that the use of lethal gas was unconstitutional, id., at 435-437, 211 P., at 681-682, and other States followed Nevada's lead, see, e.g., Ariz. Const., Art. XXII, 22 (1933); 1937 Cal. Stats. ch. 172, 1; 1933 Colo. Sess. Laws ch. 61, 1; 1955 Md. Laws ch. 625, 1, p. 1017; 1937 Mo. Laws p. 222, 1. Nevertheless, hanging and the firing squad were retained in some States, see, e.g., 1961 Del. Laws ch. 309, 2 (hang ing); 1935 Kan. Sess. Laws ch. 155, 1 (hanging); Utah Code Crim. Proc. 105-37-16 (1933) (hanging or firing squad), and electrocution remained the predominant method of execution until the 9-year hiatus in executions that ended with our judgment in Gregg v. Georgia, 428 U. S. 153 (1976). See Baze, supra, at 42.

After Gregg reaffirmed that the death penalty does not violate the Constitution, some States once again sought a more humane way to carry out death sentences. They eventually adopted lethal injection, which today is "by far the most prevalent method of execution in the United States." Baze, supra, at 42. Oklahoma adopted lethal injection in 1977, see 1977 Okla. Sess. Laws p. 89, and it eventually settled on a protocol that called for the use of three drugs: (1) sodium thiopental, "a fast-acting barbitu rate sedative that induces a deep, comalike unconscious ness when given in the amounts used for lethal injection," (2) a paralytic agent, which "inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respi ration," and (3) potassium chloride, which "interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest." Baze, supra, at 44; see also Brief for Respondents 9. By 2008, at least 30 of the 36 States that used lethal injection employed that particu lar three-drug protocol. 553 U.S., at 44.

While methods of execution have changed over the years, "[t]his Court has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Id., at 48. In Wilkerson v. Utah, 99 U.S. 130, 134-135 (1879), the Court upheld a sentence of death by firing squad. In In re Kemmler, supra, at 447-449, the Court rejected a chal lenge to the use of the electric chair. And the Court did not retreat from that holding even when presented with a case in which a State's initial attempt to execute a prisoner by electrocution was unsuccessful. Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463-464 (1947) (plu rality opinion). Most recently, in Baze, supra, seven Jus tices agreed that the three-drug protocol just discussed does not violate the Eighth Amendment.

Our decisions in this area have been animated in part by the recognition that…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

Browse all judgments from Supreme Court of Pakistan
Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
Analyze this case with Al Wakeelo AI Legal Assistant