Glossip v. Gross, No. 14–7955 , ___ U.S. ___ (June 29, 2015).

Justice Alito delivered the opinion of the Court.

Prisoners sentenced to death in the State of Oklahoma … 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.

For two independent reasons, we also affirm. First, the prisoners failed to identify a known and available alternative 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.

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The challenge in Baze failed both because the Kentucky inmates did not show that the risks they identified were substantial and imminent, id., at 56, and because they did not establish the existence of a known and available alternative method of execution that would entail a significantly less severe risk, id., at 57–60. Petitioners’ arguments here fail for similar reasons. First, petitioners have not proved that any risk posed by midazolam is substantial when compared to known and available alternative methods of execution. Second, they have failed to establish that the District Court committed clear error when it found that the use of midazolam will not result in severe pain and suffering. We address each reason in turn.

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…[T]he District Court found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma’s Department of Corrections. The Court of Appeals affirmed that finding, and it is not clearly erroneous. On the contrary, the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so.

Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows. [Footnote omitted.]

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We also affirm for a second reason: The District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution. We emphasize four points at the outset of our analysis.

First, we review the District Court’s factual findings under the deferential “clear error” standard. This standard does not entitle us to overturn a finding “simply because [we are] convinced that [we] would have decided the case differently.” Anderson v. Bessemer City, 470 U. S. 564, 573 (1985).

Second, petitioners bear the burden of persuasion on this issue. Baze, supra, at 41. Although petitioners expend great effort attacking peripheral aspects of Dr. Evans’ testimony, they make little attempt to prove what is critical, i.e., that the evidence they presented to the District Court establishes that the use of midazolam is sure or very likely to result in needless suffering.

Third, numerous courts have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride. [Citations omitted.] … Our review is even more deferential where, as here, multiple trial courts have reached the same finding, and multiple appellate courts have affirmed those findings. [Citations omitted.]

Fourth, challenges to lethal injection protocols test the boundaries of the authority and competency of federal courts. Although we must invalidate a lethal injection protocol if it violates the Eighth Amendment, federal courts should not “embroil [themselves] in ongoing scientific controversies beyond their expertise.” Baze, supra, at 51. Accordingly, an inmate challenging a protocol bears the burden to show, based on evidence presented to the court, that there is a substantial risk of severe pain.

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Petitioners emphasize that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery, but there are two reasons why this is not dispositive. First, as the District Court found, the 500- milligram dose at issue here “is many times higher than a normal therapeutic dose of midazolam.” [Record citation omitted.] The effect of a small dose of midazolam has minimal probative value about the effect of a 500-milligram dose. Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution. We recognized this point in Baze, where we concluded that although the medical standard of care might require the use of a blood pressure cuff and an electrocardiogram during surgeries, this does not mean those procedures are required for an execution to pass Eighth Amendment scrutiny. 553 U. S., at 60.

Oklahoma has also adopted important safeguards to ensure that midazolam is properly administered. The District Court emphasized three requirements in particular: The execution team must secure both a primary and backup IV access site, it must confirm the viability of the IV sites, and it must continuously monitor the offender’s level of consciousness. The District Court did not commit clear error in concluding that these safeguards help to minimize any risk that might occur in the event that midazolam does not operate as intended. Indeed, we concluded in Baze that many of the safeguards that Oklahoma employs—including the establishment of a primary and backup IV and the presence of personnel to monitor an inmate—help in significantly reducing the risk that an execution protocol will violate the Eighth Amendment. Id., at 55–56. And many other safeguards that Oklahoma has adopted mirror those that the dissent in Baze complained were absent from Kentucky’s protocol in that case. For example, the dissent argued that because a consciousness check before injection of the second drug “can reduce a risk of dreadful pain,” Kentucky’s failure to include that step in its procedure was unconstitutional. Id., at 119 (opinion of Ginsburg, J.). The dissent also complained that Kentucky did not monitor the effectiveness of the first drug or pause between injection of the first and second drugs. Id., at 120–121. Oklahoma has accommodated each of those concerns.

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Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” Post, at 28. That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.

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Justice Scalia, with whom Justice Thomas joins, concurring.

I join the opinion of the Court, and write to respond to Justice Breyer’s plea for judicial abolition of the death penalty.

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… A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.” Nevertheless, today Justice Breyer takes on the role of the abolitionists in this long-running drama, arguing that the text of the Constitution and two centuries of history must yield to his “20 years of experience on this Court,” and inviting full briefing on the continued permissibility of capital punishment, post, at 2 (dissenting opinion).

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Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.

Justice Thomas, with whom Justice Scalia joins, concurring.

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The thrust of Justice Breyer’s argument is that empirical studies performed by death penalty abolitionists reveal that the assignment of death sentences does not necessarily correspond to the “egregiousness” of the crimes, but instead appears to be correlated to “arbitrary” factors, such as the locality in which the crime was committed. Relying on these studies to determine the constitutionality of the death penalty fails to respect the values implicit in the Constitution’s allocation of decisionmaking in this context. The Donohue study, on which Justice Breyer relies most heavily, measured the “egregiousness” (or “deathworthiness”) of murders by asking lawyers to identify the legal grounds for aggravation in each case, and by asking law students to evaluate written summaries of the murders and assign “egregiousness” scores based on a rubric designed to capture and standardize their moral judgments.

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We owe victims more than this sort of pseudoscientific assessment of their lives. It is bad enough to tell a mother that her child’s murder is not “worthy” of society’s ultimate expression of moral condemnation. But to do so based on cardboard stereotypes or cold mathematical calculations is beyond my comprehension. In my decades on the Court, I have not seen a capital crime that could not be considered sufficiently “blameworthy” to merit a death sentence (even when genuine constitutional errors justified a vacatur of that sentence). [Footnote omitted.]

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Whatever one’s views on the permissibility or wisdom of the death penalty, I doubt anyone would disagree that each of these crimes was egregious enough to merit the severest condemnation that society has to offer. The only constitutional problem with the fact that these criminals were spared that condemnation, while others were not, is that their amnesty came in the form of unfounded claims. Arbitrariness has nothing to do with it. [Footnote omitted.] To the extent that we are ill at ease with these disparate outcomes, it seems to me that the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means.

Justice Breyer, with whom Justice Ginsburg joins, dissenting.

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In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death penalty violates the Eighth Amendment. A death penalty system that is unreliable or procedurally unfair would violate the Eighth Amendment. Woodson, 428 U. S., at 305 (plurality opinion); Hall, 572 U. S., at ___ (slip op., at 22); Roper, 543 U. S., at 568. And so would a system that, if reliable and fair in its application of the death penalty, would serve no legitimate penological purpose. Furman, 408 U. S., at 312 (White, J., concurring); Gregg, supra, at 183 (joint opinion of Stewart, Powell, and Stevens, JJ.); Atkins, supra, at 319.

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For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.

With respect, I dissent.

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Justice Sotomayor, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting.

…The State plans to execute petitioners using three drugs: midazolam, rocuronium bromide, and potassium chloride. The latter two drugs are intended to paralyze the inmate and stop his heart. But they do so in a torturous manner, causing burning, searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious. Petitioners claim that midazolam cannot be expected to perform that function, and they have presented ample evidence showing that the State’s planned use of this drug poses substantial, constitutionally intolerable risks.

Nevertheless, the Court today turns aside petitioners’ plea that they at least be allowed a stay of execution while they seek to prove midazolam’s inadequacy. The Court achieves this result in two ways: first, by deferring to the District Court’s decision to credit the scientifically unsupported and implausible testimony of a single expert witness; and second, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions. On both counts the Court errs. As a result, it leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.

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I begin with the second of the Court’s two holdings: that the District Court properly found that petitioners did not demonstrate a likelihood of showing that Oklahoma’s execution protocol poses an unconstitutional risk of pain. In reaching this conclusion, the Court sweeps aside substantial evidence showing that, while midazolam may be able to induce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli. Instead, like the District Court, the Court finds comfort in Dr. Evans’ wholly unsupported claims that 500 milligrams of midazolam will “paralyz[e] the brain.” In so holding, the Court disregards an objectively intolerable risk of severe pain.

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The Court not only disregards this record evidence of midazolam’s inadequacy, but also fails to fully appreciate the procedural posture in which this case arises. Petitioners have not been accorded a full hearing on the merits of their claim. They were granted only an abbreviated evidentiary proceeding that began less than three months after the State issued its amended execution protocol; they did not even have the opportunity to present rebuttal evidence after Dr. Evans testified. They sought a preliminary injunction, and thus were not required to prove their claim, but only to show that they were likely to succeed on the merits. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008); Hill v. McDonough, 547 U. S. 573, 584 (2006).

Perhaps the State could prevail after a full hearing, though this would require more than Dr. Evans’ unsupported testimony. At the preliminary injunction stage, however, petitioners presented compelling evidence suggesting that midazolam will not work as the State intends. The State, by contrast, offered absolutely no contrary evidence worth crediting. Petitioners are thus at the very least likely to prove that, due to midazolam’s inherent deficiencies, there is a constitutionally intolerable risk that they will be awake, yet unable to move, while chemicals known to cause “excruciating pain” course through their veins. Baze, 553 U. S., at 71 (Stevens, J., concurring in judgment).

III

The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is factually wrong. The Court’s conclusion that petitioners’ challenge also fails because they identified no available alternative means by which the State may kill them is legally indefensible.

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This Court has long recognized that certain methods of execution are categorically off-limits. …

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The Court today, however, would convert this categorical prohibition into a conditional one. A method of execution that is intolerably painful—even to the point of being the chemical equivalent of burning alive—will, the Court holds, be unconstitutional if, and only if, there is a “known and available alternative” method of execution. Ante, at 15. It deems Baze to foreclose any argument to the contrary. Ante, at 14.

Baze held no such thing. …

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In reengineering Baze to support its newfound rule, the Court appears to rely on a flawed syllogism. If the death penalty is constitutional, the Court reasons, then there must be a means of accomplishing it, and thus some available method of execution must be constitutional. … But a method of execution that is “barbarous,” Rhodes, 452 U. S., at 345, or “involve[s] torture or a lingering death,” Kemmler, 136 U. S., at 447, does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. If a State wishes to carry out an execution, it must do so subject to the constraints that our Constitution imposes on it, including the obligation to ensure that its chosen method is not cruel and unusual. Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.

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“By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his or her own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price. I dissent.

 

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