Glossip v. Gross

Following is the case brief for Glossip v. Gross, 135 S. Ct. 2726 (2015)

Case Summary of Glossip v. Gross:

  • Following a botched execution by lethal injection and an investigation into the incident, Oklahoma approved a lethal injection method that incorporated the same drug used in the botched execution.
  • Death row inmates sued to enjoin the use of one drug in particular – midazolam.
  • The district court denied the injunction, finding that the inmates would not be able to show that midazolam would result in the substantial risk of severe pain, and that they failed to identify any reasonable alternatives.
  • The U.S. Supreme Court affirmed the district court.  It found that the inmates did not demonstrate that use of midazolam presented a substantial risk of severe pain, and that the inmates had the burden to present a reasonable alternative.

Glossip v. Gross Case Brief

Statement of the Facts:

Oklahoma executed Clayton Lockett using a three-drug cocktail as the lethal injection procedure.  Lockett woke up after the first of three injections, however, and it took him 40 minutes to die.  Oklahoma then investigated the injection procedure that proved faulty for Lockett.  It made modifications to the lethal injection procedure.

When Oklahoma was unable to obtain certain drugs for the lethal injection cocktail, it permitted the use of midazolam, which was the drug used in the botched Lockett execution.  Accordingly, death row inmates sued, arguing that the use of midazolam violated the Eighth Amendment.  Four death row inmates called for an injunction to prevent any further Oklahoma executions.

Procedural History:

  • The federal district court denied the injunction. It held that the inmates failed to identify any available alternative to midazolam.
  • The Tenth Circuit Court of Appeals affirmed.
  • The U.S. Supreme Court granted certiorari upon a second petition from the inmates.

Issue and Holding:

Does Oklahoma’s use of midazolam during its executions by lethal injection violate the Eighth Amendment’s prohibition of cruel and unusual punishment?  No.


The decision of the Tenth Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

Insufficient evidence that midazolam causes a demonstrated risk of severe pain means that it does not violate the Eighth Amendment.


Capital punishment has been held to be constitutional, and some risk of pain is involved in any execution.  Thus, the Eighth Amendment does not require that an execution be free of any risk of pain.

To be successful on an Eighth Amendment claim regarding the method of an execution, the claimant must identify a reasonable alternative that presents a significantly lower risk of pain.  The inmates in this case were unable to do that.  The medical testimony supports the district court’s view that midalozam does not create a substantial risk of severe pain, especially given the safeguards in Oklahoma’s lethal injection protocol.

Finally, the district court here should be accorded a high degree of deference.  The inmates are unable to show that the district court’s findings were clearly erroneous.

Concurring and Dissenting Opinions:

Concurring Opinion (Scalia):

The death penalty is constitutional because the Fifth Amendment states that no person shall be “deprived of life” without due process.  Accordingly, Justice Breyer’s argument is “gobbledy-gook” in suggesting that the death penalty is unconstitutional.

Concurring Opinion (Thomas):

The studies used by Justice Breyer to demonstrate that the imposition of the death penalty is arbitrary are themselves inherently unreliable.  Trying to quantify concepts like “depravity” is not possible to do objectively.

Dissenting Opinion (Breyer):

There should be a full briefing on the question of whether the death penalty violates the Constitution.  Because we have a living Constitution that incorporates today’s standards of “cruel and unusual punishment,” it may be time to find that the death penalty itself violates the Eighth Amendment.

Dissenting Opinion (Sotomayor):

The district court was incorrect because midazolam does create a substantial risk of severe pain.  Petitioners demonstrated the substantial risk of severe pain, and Oklahoma’s safeguards do not sufficiently mitigate that risk.  Further, it is wholly unprecedented to create an obligation on a condemned inmate to identify an available means for his or her own execution.


Glossip v. Gross is important because it signifies yet another shift from an Eighth Amendment jurisprudence that was moving towards more humane treatment of inmates to a mindset, using originalism principles, to permit execution methods that are inhumane based on today’s standards.  Further, the Court seems to have imposed on the death row inmates the burden of providing an alternative form of execution – for their own executions.

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments