Paper on Glossip versus Gross in Lethal Injection and Death Penalty

Glossip versus Gross in Lethal Injection and Death Penalty

Introduction

The “Glossip v. Gross” was a case brought about by petitioners lead by Richard E. Glossip and respondents lead by Kelvin J. Gross, which was argued on 29 April, 2015 and decided on 29 June, 2015 (One 271). The case was brought about by several Oklahoma inmates seeking to avert their execution by the procedure of lethal injection.  A number of death row prisoners (all of whom had been convicted of atrocious crimes) filled a lawsuit seeking to enjoin their executions. They argued that the lethal drugs used for execution subjects victims to great risk of severe pain and therefore violated the Eight Amendment’s prohibition on what was termed as “cruel and unusual punishments.”

The convicted inmates had filed a motion for a lethal injunction and opined that a 500-milligram dose of midazolam meant to induce unconsciousness would not render the victims unable to feel pain associated with administration of the second and third drugs (One 271). The case received three day hearing, with a mixed reaction from the panel of judges. The court ruled against Glossip petition, in a ruling of 5-to-4 decision. In the decision making, the dissenting members of the court included: Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. On the other hand, Chief Justice John G. Roberts, Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr and Clarence Thomas were on the majority opinion that ruled against Glossip’s petition.  However, the Supreme Court held that this protocol drug does not, in any way, violate the 8th Amendment prohibition which burrs cruel and unusual punishments.

Background

The Eighth Amendment to the US constitution is a critical part of US bill of rights that burrs the federal government from using cruel and unusual punishment (Millar 3). Capital punishment is a constitutional procedure that required specified constitutional mean to be undertaken. Amendment VIII was adopted in 1791 as a subsection of the Bill of Right (Lindhorst 10). In 1689, England adopted a significant Bill of Right that would prohibit “cruel and unusual punishment”.  In the year 1776, George Mason, a Virginia politician, introduced the prohibition of cruel and unusual punishment in his own draft of Declaration of Rights for the Commonwealth of Virginia. When the US constitution was ratified at first by the states, the Bill of Rights was absent, and there was no prohibition of cruel and unusual punishment. These vital protections were not included until after the United States constitution was ratified.

The year prior to the case of Glossip versus Gross, the new lethal mixture had failed its test. Clayton Lockett’s (convicted of murder and rape) execution using the new lethal drug combination delivered unexpected reactions that compelled his execution to be halted for some time. Instead of losing consciousness and passing on as expected, Lockett went into and out of consciousness. He acted vigorously, twitching and convulsing and making loud shouts. After the execution was halted, he later died of a cardiac arrest.

The use of midazolam was not only controversial in Oklahoma but also in other states such as Ohio and Arizona (Goldberg 1). It was suspected that the use of this drug was the main cause of torture in the execution process. The execution process, though it amounted to death of convicts, was expected to be a peaceful process. The main concern in the case of Glossip versus Gross was that the condemned persons may not sufficiently fall to consciousness and thus could be subjected to great pain when the second and the third dosage was administered. Such painful mode of execution would have acted contrary to the Amendment VIII of the US constitution.

Formerly, lethal injection was administered using three drug sequence (Goldberg 1). The first drug that was injected to those condemned to lethal execution was sodium thiopental which is considered an anesthetic. The second injection contained pancuronium bromide which acts as paralytic agent.  The third and the final drug was potassium chloride, which was used to induce cardiac arrest which ultimately leads to death.

However, as a result of several challenges, the three dose protocol was altered for a more convenient option. One of the major challenges that the courts in United States have faced in the recent year is increased lawsuits against the lethal injection methods (Lindhorst 7). On the other hand, the supply of these lethal drugs has become quite challenging. The only FDA approved producer of sodium thiopental in United States stopped manufacturing the drug, compelling the federal government to reconsider other options in their execution of capital punishment. When the supply of sodium thiopental was cut, the State had to rely on European pharmaceutical manufacturers for the supply of this drug. However, in the bid to oppose capital punishment, the European Union blocked companies from selling the lethal drug to United States making the lethal injection execution rather difficult.

In order to overcome the challenge of drug supply, Oklahoma along with other states chose a new combination of lethal drug for execution purposes. Oklahoma considered midazolam a suitable substitute for sodium thiophintal (Lindhorst 10). However, the substitute drug has been criticized often on its failure to measuring to the effectiveness offered by sodium thiopental.

Glossip versus Gross

After unsuccessful execution in Lockett’s case, there was need to review the three drug combination to avoid another failed attempt in future. In the bid to ovoid similar incidence, an appeal was made to the Supreme Court by death row inmates led by Richard Glossip. In his appeal, he argued that the use of midazolam was against Amendment VIII of the US constitution, in that it subject victims to great risk of severe pain. The petitioners maintained that the current drug protocol that was used to execute inmates was a barbarous mode of punishment that did not meet the expectations of Eighth Amendment of the US constitution. Although after Lockett’s incident, Oklahoma made some modifications in its three drug protocol, the distasteful experience of Lockets execution imposed necessary momentum for the review of the lethal injection (Millar 15).

Though Cruel and Unusual Punishment is the most controversial clause in the Amendment VIII, it is the most crucial section (One 273). In most cases, the clause is masked in mystery, with many victims challenging its application. The conflict of interest is in the understanding of what it means for punishment to be considered “cruel and unusual”.

By asking certain question, it would help lead to significant solutions. Question such as, how do you measure the intensity of cruelty? And if the punishment is considered cruel, how does it become as “unusual”? The controversy on this clause is peddled by lack of clarity in the modalities that the federal government will use to ascertain whether the punishment is unconstitutionally cruel. Should the first standard (adopted in 1791) be reviewed? Should the federal government exercise its own moral judgment, irrespective of whether it has support from societal consensus? Should the federal government create other standards? The main question that the court needed to answer in the case of Glossip v. Gross was; does the three-drug lethal injection create  substantial risk of severe pain which amounts to violation of the Eighth Amendment when the first drug (midazolam) is highly likely to cause unconsciousness and insensate during the remainder of the execution procedure?

The court did not rule in the favor of Glossip, claiming that there was insufficient evidence to ascertain that the use of midazolam as the first drug in the execution protocol would lead to substantial risk of severe pain in comparison to known and any available alternative, in the violation of Amendment VIII. The fact that capital punishment is considered constitutional process, the risk of pain is inherent in the entire process of execution (Goldberg 3). Also, the judges argued that the Amendment VIII does not require the prescribed constitutional method of execution to be free of any risk of pain. Instead, a successful Amendment VIII method of execution claim must identify a better alternative that imposes a significantly lower risk of pain, of which the petitioners failed to identify.

In support to the court verdict, Justice Antonin Scalia, one of the panel judges in the case of Glossip v. Gross opined that the constitution of United States expressly contemplates the death penalty when it considered the possibility that a person may be “deprived of his/her life”, and therefore, capital punishment cannot, in any way, become unconstitutional exercise. The argument that the method used is arbitrary and defective, and therefore cruel, is about certainty and not penalty itself.

On the contrary, Justice Sonia Sotomayor argued, in a separate dissent, that the court was wrong in holding its decision that the used of midazolam did not pose considerable risk of severe pain. Instead, there was scientific evidence supporting the opinion that, while midazolam can induce unconsciousness, it is not certainly sufficient to sustain unconsciousness through the effect of the other procedure of execution protocol (One 275). The dissent members felt that the petitioners sufficiently demonstrated the risk associated with the use of midazolam, and that its application violates the Amendment VIII of United states constitution that curbs the use of cruel and unusual punishment. In support, Justice Sotomayor opined that there was no requirement for the plaintiff to provide reasonable alternative. In her strongest objection, she argued that the lack of alternative did not warrant constitutionality to the only prescribed method of execution.

The courts denied the motion with the reasons that the complainants failed to identify a reasonable alternative that would act better than midazolam. It also urged that the plaintiffs failed to institute a likelihood of showing that the use of the prescribed drug protocol created a demonstrated risk of severe pain. On the other hand, Oklahoma argued that it had reasonably tweaked its dosage to include a higher dosage of midazolam to comprise 500mg rather than 100mg used in the Lockett’s case.

In dissent, the members of the court’s liberal wing argued that the available lethal execution option requirements lead to patently absurd consequences (Goldberg 3). In support of his decision in dissention, Justice Stephen G. Breyer argued that the constitutionality of the prescribed punishment must be evaluated based on currently prevailing legal social and social standard, which should not be overlooked when making a ruling on execution cases. The members in dissent team categorically pointed out key procedural errors, which resulted to complication during the application of lethal injection. This confirmed that the method used was questionable and lacked constitutional support considering the Eight Amendment that protects victims of death penalty against such complications.

Conclusion

Through the case between Glossip and Gross, the execution of death penalty through the use of lethal injection came under intensive scrutiny as to both its constitutionality and effectiveness. Glossip v. Gross is an example of many cases that subject the moral obligation of the court to a greater test. Though to some extend the ruling made by the court appears ‘inhuman’, there was a significant input in the case that expresses great contribution in the ways of justice. This clearly indicates that judgment should not be made based on emotional humanistic aspect but rather on the true values prescribed in the constitution. There are many sections of passionate disagreement on the meaning and practical application of Cruel and Unusual Punishments Clause. Therefore, there is need to have clarity on certain aspects of the clause in order to get a strong constitutional support.

 

Work Cited

Goldberg, Rose Carmen. “Safe and Effective for Human Executions? Glossip v. Gross and the Eighth Amendment Bar Against Off-Label Drug Lethal Injection.” Stanford Law Review Online 68 (2015): 1.

Lindhorst, Lisa J. “Ending the Unconstitutional Torture of Three-Drug Lethal Injections: A Rebuke of Glossip v. Gross and Plea for a Single-Drug Alternative.” (2015).

Millar, Nancy E. “The US Supreme Court is About to Re-Evaluate How Some States Carry Out Lethal Injections.” Available at SSRN 2668318 (2015).

One, N. Y. “Eighth Amendment—Death Penalty—Preliminary Injunctions—Glossip v. Gross In 2008, in Baze v. Rees, the Supreme Court considered an Eighth Amendment challenge to the use of a particular three-drug lethal injec-tion protocol. A three-Justice plurality opinion announced that, to pre.”HARVARD LAW REVIEW 129: 271.