Glossip v. Gross

On January 7, 1997, Justin Sneed beat Barry Van Treese to death with a baseball bat.[https://theintercept.com/2015/07/09/oklahoma-prepares-resume-executions-richard-glossip-first-line-die/ Liliana Segura & Jordan Smith, What Happened in Room 102], The Intercept (July 9, 2015). The killing occurred at the Best Budget Inn in Oklahoma City, Oklahoma, where Van Treese was the owner, Sneed was the maintenance-man, and Richard Glossip was the manager. In exchange for avoiding the death penalty, Sneed confessed and told police that Glossip had instructed him to commit the murder.

Glossip insisted on his actual innocence and refused to accept a plea bargain. In July 1998, an Oklahoma jury convicted Glossip of the murder and sentenced him to death. In 2001, the unanimous Oklahoma Court of Criminal Appeals threw out that conviction, calling the case "extremely weak" and finding Glossip had received unconstitutionally ineffective assistance of counsel.[https://scholar.google.com/scholar_case?case=1903408540700431318&hl=en&as_sdt=2006 Glossip v. Oklahoma], 29 P.3d 597, 2001 O.K. C.R. 21 (Okla. Crim. App. 2001).

In August 2004, a second Oklahoma jury convicted Glossip of the murder and sentenced him to death. Glossip complained that prosecutors had intimidated his defense attorney into resigning, but, in April 2007, the Oklahoma Court of Criminal Appeals affirmed the death sentence, with two judges in the majority, one judge specially concurring, and two judges dissenting.[https://scholar.google.com/scholar_case?case=2141767757833512191&hl=en&as_sdt=2006 Glossip v. Oklahoma], 157 P.3d 143, 2007 O.K. C.R. 12 (Okla. Crim. App. 2007). Glossip attracted the advocacy of Sister Helen Prejean, but failed to get the clemency board to consider letters from Sneed's family, who believe Sneed is lying.

After a three-justice plurality opinion of the U.S. Supreme Court upheld the use of the sedative sodium thiopental during lethal injections in Baze v. Rees (2008), disconcerted pharmaceutical companies began refusing to supply states with the drug.[http://cdn.harvardlawreview.org/wp-content/uploads/2015/11/glossip_v_gross.pdf The Supreme Court, 2014 Term — Leading Cases] {{Webarchive|url=https://web.archive.org/web/20161220101657/http://cdn.harvardlawreview.org/wp-content/uploads/2015/11/glossip_v_gross.pdf |date=December 20, 2016 }}, 129 HARV. L. REV. 171 (2015).

File:Midazolam.svg

Oklahoma replaced the general anaesthetic with an untested off-label use of midazolam, keeping the drug's origin secret.[https://www.theatlantic.com/magazine/archive/2015/06/execution-clayton-lockett/392069/ Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett], The Atlantic (June 2015). Condemned prisoners Clayton Lockett and Charles Warner sued, and the state trial court found the secrecy law unconstitutional. However, pending an appeal by Oklahoma Attorney General Scott Pruitt, the Oklahoma Court of Criminal Appeals refused to then stay the plaintiffs' imminent executions, so, on April 21, 2014, the Oklahoma Supreme Court did.[https://scholar.google.com/scholar_case?case=17475261789157502476&hl=en&as_sdt=2006 Lockett v. Evans], 356 P.3d 58, 2014 O.K. 33 (Okla. 2014) (per curiam). Faced with conflicting court orders, Governor Mary Fallin decided to disobey the supreme court order, explaining the "attempted stay of execution is outside the constitutional authority of that body".{{cite news|last1=Cohen|first1=Andrew|title=Oklahoma just neutered its state Supreme Court|url=http://theweek.com/articles/447457/oklahoma-just-neutered-state-supreme-court|access-date=13 December 2016|work=The Week|date=29 April 2014}} The day after the Oklahoma House of Representatives drafted articles of impeachment against the supreme court justices, the court withdrew its stay of execution and reversed the trial court's holding against the state.[https://scholar.google.com/scholar_case?case=6435045014685206274&hl=en&as_sdt=2006 Lockett v. Evans], 330 P.3d 488, 2014 O.K. 34 (Okla. 2014) (per curiam).

On April 29, 2014, Oklahoma used midazolam in the execution of Clayton Lockett. After executioners had performed the lethal injection, Lockett began to struggle on the gurney, reportedly groaning "this shit is fucking with my mind" and "the drugs aren't working." Lockett died forty-three minutes after the lethal injection. Oklahoma decided to delay the execution of Warner, who was scheduled to die later that night.{{cite news|last1=Eckholm|first1=Erik|title=One Execution Botched, Oklahoma Delays the Next|url=https://www.nytimes.com/2014/04/30/us/oklahoma-executions.html |access-date=13 December 2016|work=The New York Times|date=30 April 2014|page=A1}}

After an investigation, Oklahoma elected to continue using midazolam in executions. On June 25, 2014, Warner, Glossip, and nineteen other Oklahoma death row inmates sued in the United States District Court for the Western District of Oklahoma, alleging Oklahoma's use of midazolam violated the Eighth Amendment to the United States Constitution. At the end of a three-day hearing, U.S. District Judge Stephen P. Friot orally denied the condemned prisoners' request for a preliminary injunction prohibiting the use of midazolam in their executions.Warner v. Gross, {{cite court |litigants=|vol= |reporter=No. |opinion=5:14-cv-00665 |pinpoint= |court=W.D. Okla. |date=Dec. 22, 2014 |url=https://www.courtlistener.com/docket/4364869/173/glossip-v-gross/ |accessdate=2018-01-03 |quote=}} On January 12, 2015, Tenth Circuit Judge Mary Beck Briscoe, joined by (future Supreme Court justice) Neil Gorsuch and Scott Matheson Jr., affirmed.Warner v. Gross, {{cite court |litigants=|vol=776 |reporter=F.3d |opinion=721 |pinpoint= |court=10th Cir. |date=2015 |url=https://scholar.google.com/scholar_case?case=7269001916936070482 |accessdate= |quote=}}

On January 13, 2015, the condemned prisoners petitioned for a writ of certiorari and stays of their executions from the U.S. Supreme Court. The petitioners argued that the midazolam, intended to be used as sedative, would not render them unable to feel the pain of the other two drugs.{{cite web|url=https://www.yahoo.com/health/supreme-court-allows-use-of-controversial-sedative-122732664547.html|title=Supreme Court Allows Use of Controversial Sedative for Lethal Injection: What This Means for the Death Penalty|work=Yahoo Health|date=30 June 2015|author=Jennifer Gerson Uffalussy}} On January 15, 2015, the Court denied lead petitioner Warner's application for a stay of execution, over the written dissent of Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.[https://scholar.google.com/scholar_case?case=11342984943193350328&hl=en&as_sdt=2006 Warner v. Gross], 135 S. Ct. 824 (2015) (Sotomayor, J., dissenting from denial of stays of execution). Oklahoma executed Warner later that day.

However, on January 23, the Supreme Court decided to hear the case, staying the surviving petitioners' executions. The proceeding was then renamed, with Richard Glossip as lead petitioner.{{cite web|url=https://www.nytimes.com/2015/01/27/opinion/the-humane-death-penalty-charade.html?_r=0|title=The Humane Death Penalty Charade|work=New York Times|date=2015-01-27|author=Editorial Board}} One hour of arguments were heard on April 29.{{cite web |url=http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2015/04/glossip_v_gross_supreme_court_justices_argue_about_lethal_injection_abolition.html |title=A Horrifying Day at Court: Death brings out the worst in the justices. |first=Dahlia |last=Lithwick |work=Slate |date=April 30, 2015}} At oral arguments, four conservative justices expressed impatience with obstructionist unavailability caused, Justice Scalia said, "by the abolitionists putting pressure on the companies that manufacture" the drugs.{{cite news|last1=Lyle Denniston|title=Argument analysis: Impatience with death-penalty resistance|url=http://www.scotusblog.com/2015/04/argument-analysis-impatience-with-death-penalty-resistance/|access-date=20 April 2017|work=SCOTUSblog|date=29 April 2015|author1-link=Lyle Denniston}} Justice Alito called this "guerrilla war against the death penalty", and Justice Kennedy insisted to have an answer from the petitioners on whether the court should take this element into account. Four liberal justices, conversely, harshly questioned Oklahoma Solicitor General Patrick Wyrick, with Justice Kagan describing the execution protocol as "burning alive, from the inside."

File:Justice Alito official.jpg found the prisoners "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment."]]

On June 29, 2015, the last day of the term, the Supreme Court ruled against the condemned prisoners in a 5–4 decision.{{cite news|last1=Adam Liptak|title=Justices Approve Execution Drug in a 5-to-4 Vote - A Sharp Clash of Views - Two in Dissent Question Constitutionality of the Death Penalty|url=https://www.nytimes.com/2015/06/30/us/supreme-court-execution-drug.html?_r=0|access-date=14 December 2016|work=The New York Times|date=30 June 2015|page=A1|author1-link=Adam Liptak}} At the opinion announcement, Justices Sotomayor and Breyer read aloud their dissents from the bench, while Scalia also read aloud a statement criticizing the Court's "unrealistic" restrictions of the death penalty for "over the past 30 years" and the proposal then by two Justices to eliminate the death penalty entirely.[https://www.oyez.org/cases/2014/14-7955 "Glossip v. Gross."] Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Dec 13, 2016.

Justice Samuel Alito delivered the opinion of the Court, joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.{{ussc|name=Glossip v. Gross|volume=576|docket=14-7955}}, 135 S. Ct. 2726 (2015). According to the Court, the Eighth Amendment requires prisoners to show there is a known and available alternative method of execution. The prisoners had failed to do this, the Court found, because the alternative drugs they proposed were unavailable to Oklahoma.{{Bluebook journal | first=Eric | last=Berger | title=Gross Error | volume=91 | journal=Wash. L. Rev. | page=929 | pin= | url=https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1618/91wlr0929.pdf | year=2016}} The Court explained that Hill v. McDonough (2006) did not apply.Glossip, 135 S. Ct. at 2738.

Secondly, the Court found the Eighth Amendment requires prisoners to show the challenged method of execution poses a demonstrated risk of severe pain, emphasizing the burden of proof was on the prisoners, not the state. Although midazolam is not recommended or approved by the Food and Drug Administration as an anesthetic, the Court explained that a constitutionally adequate method of execution does not need to meet the medical standard of care.{{Bluebook journal | first=Paul | last=Litton | title=On the Argument that Execution Protocol Reform is Biomedical Research | volume=90 | journal=Wash. L. Rev. Online | page=87 | pin= | url=http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1470/90WLRO87.pdf?sequence=1&isAllowed=y | year=2015}}

The Court credited the testimony of Dr. Roswell Lee Evans, Oklahoma's expert witness, that there is "a virtual certainty" prisoners will feel no pain during lethal injection, rejecting the prisoners' "speculative evidence" of midazolam's ceiling effect. Finally, the Court found there was no merit to the prisoners' criticisms that Dr. Evans' report overused unreliable sources, such as drugs.com, and that it contained mathematical errors.

Justice Scalia, joined by Justice Thomas, concurred. Scalia attacked Breyer for offering "a white paper devoid of any meaningful legal argument".135 S. Ct. at 2747 (Scalia, J., concurring). Mocking Breyer's use of statistics, Scalia wrote "if only Aristotle, Aquinas, and Hume knew that moral philosophy could be so neatly distilled into a pocket-sized, vade mecum 'system of metrics{{'"}}.135 S. Ct. at 2748 (Scalia, J., concurring). Scalia then cited several studies concluding that the death penalty is more deterrent than life in jail.135 S. Ct. at 2749 (Scalia, J., concurring) citing [http://ageconsearch.umn.edu/bitstream/43889/2/zimmerman.pdf Zimmerman, "State Executions, Deterrence, and the Incidence of Murder"], 7 J. Applied Econ. 163, 166 (2004); Dezhbakhsh, Rubin, & Shepherd, "Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data", 5 Am. L. & Econ. Rev. 344 (2003) {{doi| 10.1093/aler/ahg021}}; [http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/sunstein1.pdf Sunstein & Vermeule, "Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs"], 58 Stan. L. Rev. 703, 713 (2005).

Given Breyer's call to review precedent, Scalia added his own call to counsel to brief whether Trop v. Dulles (1958) should be overruled.135 S. Ct. at 2749 (Scalia, J., concurring). Noting that the capital punishment debate in the United States had been deliberately left open by the Founders, Scalia concluded "by arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment."135 S. Ct. at 2750 (Scalia, J., concurring).

Justice Thomas, joined by Justice Scalia, concurred. Thomas wrote 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". Thomas wrote separately to clarify that he believes the Eighth Amendment only prohibits executions "deliberately designed to inflict pain."135 S. Ct. at 2750 (Thomas, J., concurring). Calling Breyer's use of statistics "pseudoscientific", Thomas found one study's use of "depravity points" dehumanizing.135 S. Ct. at 2752 (Thomas, J., concurring) citing [http://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1387&context=blr McCord, Lightning Still Strikes], 71 Brooklyn L. Rev. 797, 833–834 (2005).

Thomas rejected Breyer's example of a double murderer arbitrarily receiving a lighter sentence than a murderer, citing news reports on WRAL-TV as explanation.135 S. Ct. at 2752 fn. 3 (Thomas, J., concurring) citing [http://www.wral.com/news/local/story/109648 Charbonneau, Andre Edwards Sentenced to Life in Prison for 2001 Murder], WRAL, Mar. 26, 2004; [http://www.wral.com/news/local/story/109563 Charbonneau, Jury Finds Andre Edwards Guilty of First-Degree Murder], WRAL, Mar. 23, 2004. Noting that, "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", Thomas concluded by spending several paragraphs graphically describing some of those crimes, including several rapes and several murders committed by the mentally retarded and by juveniles.135 S. Ct. at 2752-2755 (Thomas, J., concurring).

File:Stephen Breyer, SCOTUS photo portrait.jpg wrote in dissent "I believe it highly likely that the death penalty violates the Eighth Amendment."]]

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented. Explaining that the Constitution did not enshrine the standards of the Bloody Assizes or those found in Blackstone's Commentaries on the Laws of England, Breyer believed that circumstances have radically changed since the death penalty was restored by the Court in Gregg v. Georgia (1976).135 S. Ct. at 2755 (Breyer, J., dissenting) citing 4 W. Blackstone, Commentaries on the Laws of England 369–370 (1769) (listing mutilation and dismembering, among other punishments). Breyer gives four reasons he believed the death penalty is unconstitutionally cruel and unusual punishment:

1) Serious unreliability: Breyer believed the wrongful execution of innocent men was cruel, listing Carlos DeLuna, Cameron Todd Willingham, Joe Arridy, and William Jackson Marion as examples.135 S. Ct. at 2756 (Breyer, J., dissenting) citing e.g., Liebman, Fatal Injustice; Carlos DeLuna’s Execution Shows That a Faster, Cheaper Death Penalty is a Dangerous Idea, L. A. Times, June 1, 2012, p. A19, The Wrong Carlos: Anatomy of a Wrongful Execution (2014) {{ISBN|9780231167239}}; [http://www.newyorker.com/magazine/2009/09/07/trial-by-fire Grann, Trial By Fire: Did Texas Execute An Innocent Man?] The New Yorker, Sept. 7, 2009, p. 42 (Willingham). See also, e.g., Press Release: Gov. Ritter Grants Posthumous Pardon in Case Dating Back to 1930s, Jan. 7, 2011, p. 1 (Arridy); R. Warden, Wilkie Collins’s The Dead Alive: The Novel, the Case, and Wrongful Convictions 157–158 (2005) {{ISBN|0810122944}} (Marion). Breyer cited to research that indicates those convicted of capital crimes are more likely to be exonerated.135 S. Ct. at 2757 (Breyer, J., dissenting) citing [http://www.law.umich.edu/special/exoneration/Pages/about.aspx National Registry of Exonerations, Exonerations in the United States], 1989–2012, pp. 6–7 (2012); accord, [http://www.deathpenaltyinfo.org/innocence-and-death-penalty Death Penalty Information Center (DPIC), Innocence: List of Those Freed from Death Row.] Breyer then described the examples of the conviction and exoneration of Glenn Ford,135 S. Ct. at 2757 (Breyer, J., dissenting) citing Stroud, Lead Prosecutor Apologizes for Role in Sending Man to Death Row, Shreveport Times, Mar. 27, 2015 Henry Lee McCollum (whom Antonin Scalia had previously cited to support his views on the death penalty),135 S. Ct. at 2757 (Breyer, J., dissenting) citing {{cite news |last1=Katz |last2=Eckholm |name-list-style=amp |title=DNA Evidence Clears Two Men in 1983 Murder |newspaper=N. Y. Times |date=September 3, 2014 |page=A1 |url=https://www.nytimes.com/2014/09/03/us/2-convicted-in-1983-north-carolina-murder-freed-after-dna-tests.html }} and Anthony Ray Hinton.135 S. Ct. at 2757 (Breyer, J., dissenting) citing Blinder, Alabama Man on Death Row for Three Decades Is Freed as State’s Case Erodes, N. Y. Times, Apr. 4, 2014, p. A11.

From this, Breyer concluded that the "intense community pressure" involved in capital cases increases the likelihood of convicting the wrong person.135 S. Ct. at 2758 (Breyer, J., dissenting) citing [http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7186&context=jclc Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003], 95 J. Crim. L. & C. 523, 531– 533 (2005); {{Bluebook journal | first=Samuel R. | last=Gross | first2=Barbara | last2=O’Brien | title=Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases | volume=5 | journal=J. Empirical Legal Stud. | page=927 | pin=956–57 | url=http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1249&context=facpubs | year=2008 |punct=}}; see also [http://www.hup.harvard.edu/catalog.php?isbn=9780674066113 B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong] (2011) {{ISBN|9780674066113}} Breyer was also concerned the search for a death-qualified jury might cause bias.135 S. Ct. at 2758 (Breyer, J., dissenting) citing {{Bluebook journal | first=Susan D. | last=Rozelle | title=The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation | volume=38 | journal=Ariz. St. L. J. | page=769 | pin=772–93, 807 | url=https://digitalcommons.law.seattleu.edu/faculty/459 | year=2006 |punct=}}; {{Bluebook journal | first=Jesse | last=Nason | title=Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification | volume=10 | journal=Roger Williams U. L. Rev. | page=211 | pin=214–23 | url=https://docs.rwu.edu/rwu_LR/vol10/iss1/5 | year=2004}} Breyer further questioned the reliability of forensic testimony, citing problems with hair analysis.135 S. Ct. at 2758 (Breyer, J., dissenting) citing FBI, National Press Releases, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review, Apr. 20, 2015. See also Hsu, FBI Admits Errors at Trials: False Matches on Crime-Scene Hair, Washington Post, Apr. 19, 2015, p. A1. Breyer cited one study concluding that 4% of those sentenced to death are actually innocent.135 S. Ct. at 2758 (Breyer, J., dissenting) citing {{cite journal | pmid = 24778209 | doi=10.1073/pnas.1306417111 | volume=111 | title=Rate of false conviction of criminal defendants who are sentenced to death | pmc=4034186 | year=2014 | journal=Proc Natl Acad Sci U S A | pages=7230–5 | last1 = Gross | first1 = SR | last2 = O'Brien | first2 = B | last3 = Hu | first3 = C | last4 = Kennedy | first4 = EH| issue=20 | bibcode=2014PNAS..111.7230G | doi-access=free }}; [http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7269&context=jclc Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate], 97 J. Crim. L. & C. 761 (2007). Regardless of the actual innocence of the accused, Breyer cited research identifying prejudicial error in 68% of capital cases.135 S. Ct. at 2759 (Breyer, J., dissenting) citing {{Bluebook journal | first=Andrew | last=Gelman | first2=James S.| last2=Liebman | first3=Valerie | last3=West | first4=Alexander | last4=Kiss | title=A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States | volume=1 | journal=J. Empirical Legal Stud. | page=209 | pin=217 | url=http://www.stat.columbia.edu/~gelman/research/published/jels.pdf | year=2004}} Breyer then included editorials by former Virginia Attorney General Mark Earley rejecting the death penalty.135 S. Ct. at 2759 (Breyer, J., dissenting) citing [http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Earley-493.pdf 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] {{Webarchive|url=https://web.archive.org/web/20170421063433/http://lawreview.richmond.edu/wp/wp-content/uploads/2015/04/Earley-493.pdf |date=2017-04-21 }}, 49 U. Rich. L. Rev. 811, 813 (2015); [https://www.theguardian.com/commentisfree/2014/may/12/death-penalty-supporters-argument-conservatives Earley, I Oversaw 36 Executions. Even Death Penalty Supporters Can Push for Change], Guardian, May 12, 2014.

2) Arbitrariness in application: Breyer believed it is cruel that the death penalty is imposed without reasonable consistency. To show this, he cited a study that attempted to measure the "egregiousness" of different crimes, finding that most death row inmates had not committed worse crimes than those sentenced to life in prison.135 S. Ct. at 2760 (Breyer, J., dissenting) citing {{Bluebook journal | first=John J. | last=Donohue III | title=An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities? | volume=11 | journal=J. Empirical Legal Stud. | page=637 | pin= | url=http://law.stanford.edu/wp-content/uploads/sites/default/files/publication/768834/doc/slspublic/Donohue%2011%20Journal%20Empirical%20Legal%20Studes%20637%20December%202014.pdf | year=2014}} Rather, Breyer believed the race and gender of the victim is much more important.135 S. Ct. at 2761 (Breyer, J., dissenting) citing [http://www.gao.gov/assets/220/212180.pdf GAO, Report to the Senate and House Committees on the Judiciary: Death Penalty Sentencing] 5 (GAO/GGD–90–57, 1990); {{Bluebook journal | first=Steven F. | last=Shatz| | first2=Terry | last2=Dalton | title=Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study | volume=34 | journal=Cardozo L. Rev. | page=1227 | pin=1245–51 | url=https://www.scribd.com/document/280534690/Challenging-the-Death-Penalty-With-Statistics | year=2013}} Because fewer than 2% of counties accounted for the majority of death sentences imposed nationwide from 1976 through 2012,135 S. Ct. at 2761 (Breyer, J., dissenting) citing {{Bluebook journal | first=Robert J. | last=Smith | title=The Geography of the Death Penalty and its Ramifications | volume=92 | journal=B.U. L. Rev. | page=227 | pin=231–32 | url=http://www.bu.edu/law/journals-archive/bulr/documents/smith_001.pdf | year=2012 |punct=}}; [http://www.deathpenaltyinfo.org/documents/TwoPercentReport.pdf DPIC, The 2% Death Penalty: How A Minority of Counties Produce Most Death Cases At Enormous Costs to All] 9 (Oct. 2013). Breyer postulated that the real driver of inconsistent penalties are the local prosecutors,135 S. Ct. at 2761 (Breyer, J., dissenting) citing {{Bluebook journal | first=Greg | last=Goelzhauser | title=Prosecutorial Discretion Under Resource Constraints: Budget Allocations and Local Death-Charging Decisions | volume=96 | journal=Judicature | page=161 | pin=162–63 | url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209911 | year=2013}}; {{Bluebook journal | first=Katherine | last=Barnes | first2=David | last2=Sloss | first3=Stephen | last3=Thaman | title=Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases | volume=51 | journal=Ariz. L. Rev. | page=305 | pin= | url=http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1290&context=facpubs | year=2009 |punct=}}; {{Bluebook journal | first=Justin | last=Marceau | first2=Sam | last2=Kamin | first3=Wanda | last3=Foglia| title=Death Eligibility in Colorado: Many Are Called, Few Are Chosen | volume=84 | journal=U. Colo. L. Rev. | page=1069 | pin= | url=http://lawreview.colorado.edu/wp-content/uploads/2013/11/12.-Marceau_610_s.pdf | year=2013}} public defender funding,135 S. Ct. at 2761 (Breyer, J., dissenting) citing {{Bluebook journal | first=James S. | last=Liebman | title=Minority Practice, Majority’s Burden: The Death Penalty Today | volume=9 | journal=Ohio S. J. Crim. L. | page=255 | pin=274 | url=https://kb.osu.edu/bitstream/handle/1811/73376/OSJCL_V9N1_255.pdf?sequence=1 | year=2011}}; see generally {{Bluebook journal | first=Stephen B. | last=Bright | title=Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer | volume=103 | journal=Yale L.J. | page=1835 | pin= | url=http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4500&context=fss_papers | year=1994}}. See also {{Bluebook journal | first=Stephen F. | last=Smith | title=The Supreme Court and the Politics of Death | volume=94 | journal=Va. L. Rev. | page=283 | pin= | url=https://scholarship.law.nd.edu/law_faculty_scholarship/360 | year=2008 |punct=}}; [http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2226&context=hlr American Bar Assn. (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 9.1, Commentary (rev. ed. Feb. 2003)], in 31 Hofstra L. Rev. 913, 985 (2003) and race distribution.135 S. Ct. at 2762 (Breyer, J., dissenting) citing {{Bluebook journal | first= | last=Levinson | first2= | last2=Smith | first3= | last3=Young | title=Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States | volume=89 | journal=N.Y.U. L. Rev. | page=513 | pin=533–36 | url=https://deathpenaltyinfo.org/documents/LevinsonSmithYoung.pdf | year=2014 |punct=}}; cf. {{Bluebook journal | first=G. Ben | last=Cohen | first2=Robert J. | last2=Smith | title=The Racial Geography of the Federal Death Penalty' | volume=85 | journal=Wash. L. Rev. | page=425 | pin= | url=https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/470/Racial%20Geography%20of%20the%20Federal%20Death%20Penalty.pdf?sequence=1 | year=2010}} Criticizing the absence of proportionality review,135 S. Ct. at 2763 (Breyer, J., dissenting) citing {{Bluebook journal | first=Timothy V. | last=Kaufman-Osborn | title=Capital Punishment, Proportionality Review, and Claims of Fairness (with Lessons from Washington State) | volume=79 | journal=Wash. L. Rev. | page=775 | pin=791–92 | url=https://digital.lib.washington.edu/dspace-law/handle/1773.1/61 | year=2004}} Breyer goes on to cite several anecdotal examples from news media that he felt were particularly arbitrary.135 S. Ct. at 2763 (Breyer, J., dissenting) citing [http://www.wral.com/news/local/story/109648 Charbonneau, Andre Edwards Sentenced to Life in Prison for 2001 Murder], WRAL, Mar. 26, 2004; Shea, Judge Gives Consecutive Life Sentences for Triple Murder, Philadelphia Inquirer, June 29, 2004, p. B5.

3) Excessive delays: Breyer believed it is cruel that there is a lengthy delay between sentencing and execution, noting that since 1960, the average delay grew from two years to 18.135 S. Ct. at 2764 (Breyer, J., dissenting) citing {{Bluebook journal | first=Dwight | last=Aarons | title=Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment? | volume=29 | journal=Seton Hall L. Rev. | page=147 | pin=181 | url= | year=1998 |punct=}}; Dept. of Justice, Bureau of Justice Statistics (BJS), T. Snell, Capital Punishment, 2013—Statistical Tables 14 (Table 10) (rev. Dec. 2014); [http://www.deathpenaltyinfo.org/execution-list-2014 DPIC, Execution List 2014.] Firstly, Breyer believed longer delays are cruel, noting that solitary confinement had been criticized by the United Nations Special Rapporteur on Torture.135 S. Ct. at 2765 (Breyer, J., dissenting) citing [https://www.aclu.org/feature/death-dying American Civil Liberties Union (ACLU), A Death Before Dying: Solitary Confinement on Death Row] 5 (July 2013); [http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_treatmentprisoners.html ABA Standards for Criminal Justice: Treatment of Prisoners] 6 (3d ed. 2011); {{cite journal | doi = 10.1177/0011128702239239 | volume=49 | title=Mental Health Issues in Long-Term Solitary and "Supermax" Confinement | year=2003 | journal=Crime & Delinquency | pages=124–156 [124, 130] | last1 = Haney | first1 = Craig| s2cid=145380807 }}; {{Bluebook journal | first=Stuart | last=Grassian | title=Psychiatric Effects of Solitary Confinement | volume=22 | journal=Wash. U. J.L. & Pol'y | page=325 | pin=331 | url= https://openscholarship.wustl.edu/law_journal_law_policy/vol22/iss1/24 | year=2006}} Repeatedly issuing and then revoking death warrants is, according to Breyer, also cruel, noting that, before being exonerated, Willie Jerome Manning,135 S. Ct. at 2766 (Breyer, J., dissenting) citing Robertson, With Hours to Go, Execution is Postponed, N. Y. Times, Apr. 8, 2015, p. A17; Nave, Why Does the State Still Want to Kill Willie Jerome Manning? Jackson Free Press, Apr. 29, 2015. Randall Dale Adams,135 S. Ct. at 2766 (Breyer, J., dissenting) citing Martin, Randall Adams, 61, Dies; Freed With Help of Film, N. Y. Times, June 26, 2011, p. 24. Clarence Brandley,citing N. Davies, White Lies 231, 292, 298, 399 (1991) {{ISBN|0679401679}}. and Earl Washington, Jr.135 S. Ct. at 2766 (Breyer, J., dissenting) citing M. Edds, An Expendable Man 93 (2003) {{ISBN|0814722393}}. had all come within days or hours of being executed, multiple times. In light of the death row phenomenon, Breyer did not find it surprising that many inmates volunteer to be executed.135 S. Ct. at 2766 (Breyer, J., dissenting) citing {{Bluebook journal | first=Meredith Martin | last=Rountree | title=Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures | volume=82 | journal=UMKC L. Rev. | page=295 | pin= | url=https://deathpenaltyinfo.org/documents/VolunteersForExecution.pdf | year=2014 |punct=}}; {{Bluebook journal | first=G. Richard | last=Strafer | title=Volunteering for Execution: Competency, Voluntariness and the Propriety of Third Party Intervention | volume=74 | journal=J. Crim. L. & Criminology | page=860 | pin=869 | url=http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6382&context=jclc | year=1983}} Breyer next noted the hostility foreign common law courts have shown to delays before executions in Pratt v A-G for Jamaica (1993), S v Makwanyane (1995, South Africa), Soering v United Kingdom (1989, members of the European Convention on Human Rights), and United States v Burns (2001, Canada).135 S. Ct. at 2767 (Breyer, J., dissenting).

Secondly, Breyer believed the only punishment rationales for the death penalty are deterrence and retributive justice. Breyer believed that the death penalty has no deterrent value.135 S. Ct. at 2767 (Breyer, J., dissenting) citing Sorensen, Wrinkle, Brewer, & Marquart, Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas, 45 Crime & Delinquency 481 (1999) {{doi|10.1177/0011128799045004005}}; Bonner & Fessenden, Absence of Executions: A Special Report, States With No Death Penalty Share Lower Homicide Rates, N. Y. Times, Sept. 22, 2000, p. A1; [http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6901&context=jclc Radelet & Akers, Deterrence and the Death Penalty: The Views of the Experts], 87 J. Crim. L. & C. 1, 8 (1996); [http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/donohue_0.pdf Donohue & Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate], 58 Stan. L. Rev. 791, 794 (2005); National Research Council, Deterrence and the Death Penalty 2 (D. Nagin & J. Pepper eds. 2012) {{doi|10.17226/13363}}. Likewise, Breyer believed that retribution is almost as well achieved by life in prison without parole.135 S. Ct. at 2769 (Breyer, J., dissenting) citing Austin Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) {{ISBN|9781400826728}}; [https://www.aclu.org/feature/living-death ACLU, A Living Death: Life Without Parole for Nonviolent Offenses] 11, and n. 10 (2013)). Breyer did not believe the Founders could have contemplated decades long delays when they wrote the Eighth Amendment.135 S. Ct. at 2769 (Breyer, J., dissenting) citing P. Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776– 1861, p. 17 (1982) {{ISBN|082404861X}}; [https://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0064 Thomas Jefferson, A Bill for Proportioning Crimes and Punishments (1779)], reprinted in The Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John Marshall 207–209 (C. Cullen & H. Johnson eds. 1977) (describing petition for commutation based in part on 5-month delay). Breyer highlighted that, after retiring from the Court, Justice Lewis F. Powell Jr. testified to Congress that he had changed his mind and now thought excessive delays made the death penalty unconstitutional.135 S. Ct. at 2764 (Breyer, J., dissenting) citing [https://www.c-span.org/video/?9848-1/federal-habeas-corpus-reform-part-1 Habeas Corpus Reform, Hearings before the Senate Committee on the Judiciary], 100th Cong., 1st and 2d Sess., 35 (1989 and 1990).

4) Most places within the United States have abandoned its use: Beside being cruel, Breyer believed the death penalty is also unusual because it has become rare. Noting that 41 states had the death penalty before the Court blocked it in 1972,135 S. Ct. at 2773 (Breyer, J., dissenting) citing E. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America 145 (2013) {{ISBN|0393348962}}. now there are 27, and only three, Texas, Missouri, and Florida, account for 80% of executions.135 S. Ct. at 2773 (Breyer, J., dissenting) citing [https://time.com/deathpenalty/ von Drehle, Bungled Executions, Backlogged Courts, and Three More Reasons the Modern Death Penalty Is a Failed Experiment], Time, June 8, 2015, p. 26. After listing execution statistics, Breyer next considered polling data and an American Law Institute report.135 S. Ct. at 2764 (Breyer, J., dissenting) citing [https://www.washingtonpost.com/blogs/govbeat/wp/2014/06/05/support-for-death-penalty-still-high-but-down Wilson, Support for Death Penalty Still High, But Down], Washington Post, GovBeat, June 5, 2014; see also [https://www.ali.org/media/filer_public/3f/ae/3fae71f1-0b2b-4591-ae5c-5870ce5975c6/capital_punishment_web.pdf ALI, Report of the Council to the Membership on the Matter of the Death Penalty] 4 (Apr. 15, 2009) (withdrawing Model Penal Code section on capital punishment). Breyer finally considered the death penalty as even more unusual by looking at a vote by the United Nations General Assembly, reports by the International Commission Against the Death Penalty and Amnesty International statistics.135 S. Ct. at 2775 (Breyer, J., dissenting) citing [https://news.vice.com/article/un-vote-against-death-penalty-highlights-global-abolitionist-trend-and-leaves-the-us-stranded Oakford, "UN Vote Against Death Penalty Highlights Global Abolitionist Trend-and Leaves the U.S. Stranded"], Vice News, Dec. 19, 2014,

Breyer appended to his dissent five pages of graphs, tables, and maps.135 S. Ct. at 2777-80 (Breyer, J., dissenting) citing [https://www.theatlantic.com/politics/archive/2015/04/the-death-penalty-becomes-unusual/390867/ Ford, "The Death Penalty's Last Stand"], The Atlantic, Apr. 21, 2015)

Justice Sonia Sotomayor filed a dissent, in which Justices Ginsburg, Breyer, and Elena Kagan joined. Sotomayor stated that "under the Court's new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designates." Sotomayor attacked the credence the Court gave to Oklahoma's expert witness, writing "Dr. Evans' conclusions were entirely unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of midazolam's properties, and apparently premised on basic logical errors."135 S. Ct. at 2788 (Sotomayor, J., dissenting) Sotomayor contended Dr. Evans' testimony that midazolam could "paralyze the brain" was directly refuted by peer-reviewed articles cited by the prisoners' expert witnesses.135 S. Ct. at 2784 (Sotomayor, J., dissenting) citing {{cite journal | pmid = 1422570 | volume=107 | title=Pharmacokinetic-EEG effect relationship of midazolam in aging BN/BiRij rats | pmc=1907602 | year=1992 | journal=Br J Pharmacol | pages=171–7 | last1 = Hovinga | first1 = S | last2 = Stijnen | first2 = AM | last3 = Langemeijer | first3 = MW | last4 = Mandema | first4 = JW | last5 = van Bezooijen | first5 = CF | last6 = Danhof | first6 = M | issue=1 | doi = 10.1111/j.1476-5381.1992.tb14482.x}}; {{cite journal | pmid = 3156545 | volume=62 | title=Midazolam: pharmacology and uses | date=March 1985 | journal=Anesthesiology | pages=310–24 | last1 = Reves | first1 = JG | last2 = Fragen | first2 = RJ | last3 = Vinik | first3 = HR | last4 = Greenblatt | first4 = DJ | issue=3 | doi = 10.1097/00000542-198503000-00017| s2cid=28308031 | doi-access = free }}; {{cite journal | pmid = 21245208 | doi=10.1124/pr.110.002717 | volume=63 | title=Enhancement of GABAergic activity: neuropharmacological effects of benzodiazepines and therapeutic use in anesthesiology | date=March 2011 | journal=Pharmacol. Rev. | pages=243–67 | last1 = Saari | first1 = TI | last2 = Uusi-Oukari | first2 = M | last3 = Ahonen | first3 = J | last4 = Olkkola | first4 = KT| issue=1 | s2cid=930379 }}.

The majority erred, Sotomayor argued, by "imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his or her own execution".135 S. Ct. at 2797 (Sotomayor, J., dissenting) Calling the Court's holding "legally indefensible", she argued the Court had failed to distinguish Hill v. McDonough (2006), and went on to criticize the Court for treating the plurality opinion in Baze v. Rees (2008) as precedent, noting that the Court was ignoring the concurring opinions necessary to achieve that judgment.135 S. Ct. at 2793 (Sotomayor, J., dissenting). Condemned prisoners should not be required to meet an additional burden of proof, in Sotomayor's view, simply because they face executions that "States hurriedly devise as they scramble to locate new and untested drugs".135 S. Ct. at 2796 (Sotomayor, J., dissenting) citing {{Bluebook journal | first=Deborah W. | last=Denno | title=Lethal Injection Chaos Post-Baze | volume=102 | journal=Geo. L.J. | page=1331 | pin=1335 | url=https://ir.lawnet.fordham.edu/faculty_scholarship/506/ | year=2014 |punct=}}; {{Bluebook journal | first=Deborah W. | last=Denno | title=The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty | volume=76 | journal=Ford. L. Rev. | page=49 | pin=65–79 | url=https://ir.lawnet.fordham.edu/flr/vol76/iss1/3/ | year=2007}} Finally, Sotomayor anticipated that, due to the prevalence of botched executions,135 S. Ct. at 2796 (Sotomayor, J., dissenting) citing A. Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, App. A, p. 177 (2014) {{ISBN|9780804789165}}. those condemned to die will increasingly choose execution by firing squad.135 S. Ct. at 2796 (Sotomayor, J., dissenting) citing Stuart Banner, The Death Penalty 203 (2002) {{ISBN|9780674010833}}; Johnson, Double Murderer Executed by Firing Squad in Utah, N. Y. Times, June 19, 2010, p. A12; C. Brandon, The Electric Chair: An Unnatural American History 39 (1999) {{ISBN|0786444932}}.

Oklahoma Attorney General Scott Pruitt scheduled Glossip to die on September 30, 2015.{{cite news|last1=Segura|first1=Liliana |last2=Smith|first2=Jordan|title=Oklahoma's Insane Rush to Execute|url=https://theintercept.com/2016/05/24/oklahomas-insane-rush-to-execute/|access-date=13 December 2016|work=The Intercept|date=24 May 2016}} However, Governor Mary Fallin ordered the sentence halted one hour before the execution, explaining that the state did not have in its possession the correct drugs. An Oklahoma grand jury report in May 2016 revealed that the state had obtained the wrong drugs during the execution of Charles Warner, lethally injecting him with potassium acetate instead of potassium chloride.

Commentators complained that the Court majority had applied the preliminary injunction factors from Winter v. Natural Resources Defense Council (2008) as four separate necessary elements, upsetting the balancing test and sliding scale approaches the circuit and district courts had been using to weigh the factors against each other.

Following the end of Oklahoma's moratorium on executions, on February 27, 2020, more than two dozen inmates filed a motion to reopen Glossip v. Gross in the United States District Court for the Western District of Oklahoma, claiming the new lethal injection protocol was incomplete.{{cite news |last1=Haynes |first1=Danielle |title=Appeals court reinstates several Oklahoma death row prisoners to lawsuit |url=https://www.upi.com/Top_News/US/2021/10/16/Oklahoma-executions-death-penalty-lawsuit/8581634391251/ |access-date=26 May 2022 |publisher=UPI |date=October 16, 2021}}{{cite web |title=MOTION TO REOPEN ACTION WHICH WAS ADMINISTRATIVELY CLOSED |url=https://storage.courtlistener.com/recap/gov.uscourts.okwd.90781/gov.uscourts.okwd.90781.283.0.pdf |access-date=27 May 2022}} Although the United States Supreme Court had ruled on the case at the preliminary injunction stage, the ruling had involved an earlier version of Oklahoma's lethal injection protocol. On March 19, 2020, the case was officially reopened and in July 2020 the case was renamed Glossip v. Chandler.{{cite news |last1=Shelden |first1=Dana |title=Oklahoma death row prisoners' secure right for new trial in their Eighth Amendment challenge to state lethal injection protocol |url=https://www.city-sentinel.com/community/oklahoma-death-row-prisoners-secure-right-for-new-trial-in-their-eighth-amendment-challenge-to/article_8a564a74-95d3-5d3f-a528-99678d103d1f.html |access-date=27 May 2022 |publisher=Oklahoma City Sentinel |date=August 11, 2021}}

{{cite web |title=THIRD AMENDED COMPLAINT |url=https://storage.courtlistener.com/recap/gov.uscourts.okwd.90781/gov.uscourts.okwd.90781.325.0_1.pdf |access-date=27 May 2022}}

• List of United States Supreme Court cases, volume 576
• Richard Glossip
• Baze v. Rees (2008)
• Bucklew v. Precythe (2019)
• Glossip v. Chandler
• Glossip v. Oklahoma (2025)
• Execution of Joseph Wood
• Execution of Clayton Lockett
• Roswell Lee Evans, a noted witness in the case

{{Reflist|30em}}

• {{cite journal |last=Malone |first=Linda A. |title=The Death Knell for the Death Penalty and the Significance of Global Realism to Its Abolition from Glossip v. Gross to Brumfield v. Cain |journal=Duke Journal of Constitutional Law & Public Policy |volume=11 |issue=1–2 |year=2016 |pages=107–44 |url=https://heinonline.org/HOL/P?h=hein.journals/dukpup11&i=107 |via=HeinOnline }}

• {{Wikisource-inline|Glossip v. Gross}}
• {{caselaw source

| case = Glossip v. Gross, {{ussc|volume=576|year=2015|docket=14-7955|el=no}}

| googlescholar = https://scholar.google.com/scholar_case?case=6027367229870790758

| justia =https://supreme.justia.com/cases/federal/us/576/14-7955/

| oyez =https://www.oyez.org/cases/2014/14-7955

| other_source1 = Supreme Court (slip opinion) (archived)

| other_url1 =https://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf

}}

• [http://www.scotusblog.com/case-files/cases/glossip-v-gross/ Case page] at SCOTUSblog

{{s-start}}

! colspan="3" | Executions carried out in Oklahoma

{{s-bef|before=Clayton Lockett|before2=

{{s-ttl|title=Charles Frederick Warner|years=January 15, 2015}}

{{s-aft|after=John Grant|after2=

|-

! colspan="3" | Executions carried out in the United States

{{s-bef|before=Andrew Howard Brannan – Georgia|before2=

{{s-ttl|title=Charles Frederick Warner – Oklahoma|years=January 15, 2015}}

{{s-aft|after=Johnny Shane Kormondy – Florida|after2=

{{s-end}}

{{US8thAmendment|punishment}}

Category:2015 in United States case law

Category:United States Supreme Court cases

Category:United States Supreme Court cases of the Roberts Court

Category:Cruel and Unusual Punishment Clause and death penalty case law

Category:Capital punishment in Oklahoma

Category:Lethal injection