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The After The Trial blog presents insights on ongoing and recent trials around the state of Alabama, including weekly criminal law round-ups.


J.D. Lloyd - Saturday, July 25, 2015

Lethal Injection — Glossip v. Gross

J.D. Lloyd - Saturday, July 25, 2015



Oklahoma, like most states, uses a three-drug cocktail during its lethal injection procedure. The first drug induces unconsciousness. Until the manufacturer discontinued production, the drug used for this stage was a barbiturate, sodium thiopental or pentobarbital. The second drug is a paralytic that disables all muscular movements. The third drug stops the defendant’s heart.

Due to the manufacturer discontinuing production of the barbiturate used in the first stage of the execution protocol, Oklahoma adopted the used of midazolam, a strong sedative, for the first stage of the execution process. Oklahoma death-row inmates filed a challenge to the use of midazolam under 42 USC § 1983. Specifically, petitioners argued that the use of this drug would violate the Eighth Amendment’s ban on cruel or unusual punishment because this drug will not sufficiently sedate the inmates so they will not feel pain in the execution process.

The district court denied relief on two grounds: (1) the petitioners failed to identify an alternative method of execution that presented a substantially less severe risk of pain; and (2) the petitioners failed to demonstrate the use of midazolam created a risk of severe pain. The Tenth Circuit Court of Appeals affirmed the lower court’s decision.


In rejecting the inmates’ claim that the use of midazolam violates the Eighth Amendment, the Court reached two conclusions: (1) the drug does not create a substantial risk of severe pain; and (2) the petitioners failed to show a “known and reliable” alternative that presents a lower risk of pain.

1. The inmates failed to establish the use of midazolam creates a substantial risk of severe pain.

In Baze v. Rees, 553 U.S. 35 (2008), another case challenging the constitutionality of the three-drug cocktail used in lethal injections, the Court held that in any Eighth Amendment challenges to an execution protocol, a challenger must show the method employed will create the great risk of causing pain. Here, the Court found that inmates completely failed to meet that showing. The Court concluded that ample evidence was presented that midazolam did not create a risk of severe pain necessary to grant the inmate’s request for a permanent injunction.

2. Petitioners failed to identify a “known and available alternative” to the execution methods that would have lower risks of pain

Baze also requires a challenger to show that the risk of harm was substantial in comparison to a known and available alternative method of execution. Here, the Court found the inmates failed to satisfy this requirement of Baze. While the inmates argued that Oklahoma could use sodium thiopental or pentobarbital as the first drug in the three-drug cocktail, the Court rejected this argument because it was all but conceded that these drugs were no longer available to the States.

Dissent — Justice Breyer no longer believes the death penalty is constitutional.

Justice Breyer authored a thoughtful dissent where he calls into question the constitutionality of the death penalty. He focused his criticism on three main points: (1) his belief that the process suffers from “serious unreliability;” (2) that the ultimate penalty is arbitrarily applied; and (3) that the long delays in sentencing and execution undermine the penological purpose of the penalty.

The opinion is available here:

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