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Law School Case Brief

Glossip v. Gross - 135 S. Ct. 2726 (2015)


The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishments, and the United States Supreme Court's opinion in Baze v. Rees outlines what a prisoner must establish to succeed on an Eighth Amendment method-of-execution claim. In Baze, the Court concluded that prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is sure or very likely to cause serious illness and needless suffering, and gives rise to sufficiently imminent dangers. To prevail on such a claim, there must be a substantial risk of serious harm, an objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment. The Court also stated that prisoners cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative. Instead, prisoners must identify an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain. 


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 person insensate to pain. After holding an evidentiary hearing, 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 Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.


Did Oklahoma’s use of midazolam as the first drug in the execution protocol, violate the Eight Amendment’s prohibition against cruel and unusual punishment?




Petitioners have failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment. Petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution. Petitioners have suggested that Oklahoma could execute them using sodium thiopental or pentobarbital, but the District Court did not commit a clear error when it found that those drugs are unavailable to the State. Petitioners argue that the Eighth Amendment does not require them to identify such an alternative, but their argument is inconsistent with the controlling opinion in Baze, which imposed a requirement that the Court now follows. Petitioners also argued that the requirement to identify an alternative is inconsistent with the Court's pre-Baze decision in Hill v. McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44, but they misread that decision. Hill concerned a question of civil procedure, not a substantive Eighth Amendment question. That case held that § 1983 alone does not require an inmate asserting a method-of-execution claim to plead an acceptable alternative. Petitioners' speculative evidence regarding midazolam's “ceiling effect” does not establish that the District Court's findings were clearly erroneous.

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