576 U.S. ___, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015)
Oklahoma has long used a three-drug protocol for executions.1 The first drug, a barbiturate, is intended to induce a state of unconsciousness.2 The second drug, a paralytic, is intended to paralyze the inmate and stop breathing.3 The third drug, potassium chloride, is intended to stop the heart.4
In 2009, Oklahoma began using a three-drug protocol consisting of sodium thiopental, pancuronium bromide, and potassium chloride.5 In 2010, after the sole American manufacturer of sodium thiopental announced that it would no longer produce the drug, Oklahoma began using pentobarbital in place of sodium thiopental.6 In 2013, after that manufacturer also ceased production of pentobarbital, Oklahoma announced that it would use midazolam in place of the barbiturate.7
On January 15, 2014, Oklahoma executed Charles Warner using the new protocol.8 Warner had filed a §1983 action challenging the constitutionality of Oklahoma’s lethal injection protocol, but the District Court denied his motion for a preliminary injunction, and the Court of Appeals for the Tenth Circuit affirmed.910 On the day of Warner’s execution, petitioners, all Oklahoma death row inmates, filed a §1983 action in federal district court.11 They contended that the use of midazolam in Oklahoma’s execution protocol violates the Eighth Amendment because it is incapable of rendering a person insensate to pain.12
In December 2014, after discovery, the District Court held a 3-day evidentiary hearing on the preliminary injunction motion. The District Court denied the motion for a preliminary injunction.13 The Court of Appeals for the Tenth Circuit affirmed. Oklahoma executed Warner on January 15, 2015, but the Supreme Court subsequently stayed the executions of Glossip, Cole, and Grant pending the resolution of this case.14
Whether the facts of the case establish the background for petitioners' Eighth Amendment challenge to Oklahoma's lethal injection protocol?15
The death penalty was an accepted punishment at the time of the adoption of the Constitution and the Bill of Rights.16
Yes. Oklahoma has long used a three-drug protocol for executions. The first drug, a barbiturate, is intended to induce a state of unconsciousness. The second drug, a paralytic, is intended to paralyze the inmate and stop breathing.
The third drug, potassium chloride, is intended to stop the heart. In 2009, Oklahoma began using a three-drug protocol consisting of sodium thiopental, pancuronium bromide, and potassium chloride. In 2010, after the sole American manufacturer of sodium thiopental announced that it would no longer produce the drug, Oklahoma began using pentobarbital in place of sodium thiopental. In 2013, after that manufacturer also ceased production of pentobarbital, Oklahoma announced that it would use midazolam in place of the barbiturate.
On January 15, 2014, Oklahoma executed Charles Warner using the new protocol. Warner had filed a §1983 action challenging the constitutionality of Oklahoma’s lethal injection protocol, but the District Court denied his motion for a preliminary injunction, and the Court of Appeals for the Tenth Circuit affirmed. On the day of Warner’s execution, petitioners, all Oklahoma death row inmates, filed a §1983 action in federal district court. They contended that the use of midazolam in Oklahoma’s execution protocol violates the Eighth Amendment because it is incapable of rendering a person insensate to pain.
In December 2014, after discovery, the District Court held a 3-day evidentiary hearing on the preliminary injunction motion. The District Court denied the motion for a preliminary injunction. The Court of Appeals for the Tenth Circuit affirmed. Oklahoma executed Warner on January 15, 2015, but the Supreme Court subsequently stayed the executions of Glossip, Cole, and Grant pending the resolution of this case.
The facts establish the procedural and factual foundation for petitioners' challenge to the constitutionality of Oklahoma's lethal injection protocol under the Eighth Amendment.17
Whether the Eighth Amendment method-of-execution claim requires the prisoner to identify a known and available alternative method of execution?
To prevail on an Eighth Amendment method-of-execution claim, a prisoner must establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.
Yes. The petitioners proposed the use of a single drug, either pentobarbital or sodium thiopental, but the District Court found that both drugs are unavailable to Oklahoma.18 The manufacturer of pentobarbital has refused to sell the drug for use in executions, and the manufacturer of sodium thiopental has ceased production.19 Petitioners also proposed the use of the firing squad, but the District Court found that this method is not available in Oklahoma because Oklahoma law provides for lethal injection as the method of execution.20
The District Court's findings are not clearly erroneous.21
Petitioners have failed to establish a likelihood of success on the merits of their claim.22
Related opinions on this issue
Joined by Justice Thomas
Justice Scalia joined the Court's opinion in full but wrote separately to respond to Justice Breyer's dissent.23 The dissent’s argument that the death penalty is unconstitutional because it is unreliable rests on a flawed premise.24 The death penalty is constitutional.25
The Eighth Amendment does not prohibit the death penalty.26 It prohibits punishments that are cruel and unusual.2728 The death penalty is neither.29
Scalia further contended that the dissent's argument that the death penalty is unconstitutional because it is imposed arbitrarily also fails.30 The death penalty is imposed pursuant to statutes that provide for individualized sentencing.31 The Constitution does not require perfect consistency in the application of the death penalty.32
He emphasized that the petitioners' claim is not supported by the text of the Constitution or precedents, and that the Court should not effectively overrule its prior decisions upholding capital punishment.
Joined by Justice Scalia
Justice Thomas joined the Court's opinion and wrote separately to emphasize that the petitioners' claim is not supported by the text of the Constitution or our precedents.33 The Eighth Amendment does not guarantee a prisoner a painless death.34 It prohibits punishments that are cruel and unusual.
Lethal injection is not cruel and unusual.35 Thomas stressed that the petitioners have not shown that Oklahoma’s protocol is sure or very likely to cause severe pain.3637 The District Court’s findings are entitled to deference.38
He reiterated that the Eighth Amendment was understood to bar only those punishments that added terror, pain, or disgrace to an otherwise permissible capital sentence, and that the petitioners' arguments fail under that standard.
Joined by Justice Ginsburg
Justice Breyer dissented, arguing that the petitioners have shown a likelihood of success on the merits of their claim that Oklahoma’s lethal injection protocol violates the Eighth Amendment. He contended that the evidence before the District Court showed that midazolam is not likely to render a prisoner insensate to pain.39 The petitioners' experts testified that midazolam does not suppress brain activity to the degree necessary to prevent the experience of severe pain.40
The State's expert testimony was not sufficient to overcome this evidence.41 Breyer further argued that the petitioners have identified feasible alternative methods of execution that would significantly reduce the risk of severe pain. The use of pentobarbital or sodium thiopental is feasible, and the State has not shown that these drugs are unavailable.42
For these reasons, he would reverse the judgment of the Court of Appeals. Breyer also raised broader concerns about the death penalty's reliability, arbitrariness, and delays in his separate opinion.
Whether the District Court clearly erred in finding that midazolam is highly likely to render a prisoner unconscious and insensate during an execution?
The District Court’s factual findings are reviewed under the deferential clear error standard.43
No. The District Court found that midazolam is highly likely to render a prisoner unconscious and insensate during an execution.44 This finding is not clearly erroneous.4546 At the evidentiary hearing, petitioners presented testimony from two experts.47 Dr. David Lubarsky testified that midazolam is not effective in rendering a person insensate to pain.48
Oklahoma’s expert, Dr. Michael Buffington, testified that midazolam is effective in rendering a prisoner unconscious and insensate.49 The District Court credited Dr. Buffington’s testimony and found that midazolam is highly likely to render a prisoner unconscious and insensate.50 This finding is not clearly erroneous.
The District Court did not commit clear error when it found that midazolam is highly likely to render a prisoner unconscious and insensate during an execution.
Related opinions on this issue
Joined by Justice Ginsburg
Justice Breyer dissented from the majority's conclusion on midazolam, arguing that the evidence before the District Court showed that midazolam is not likely to render a prisoner insensate to pain. The petitioners' experts testified that midazolam does not suppress brain activity to the degree necessary to prevent the experience of severe pain. The State's expert testimony was not sufficient to overcome this evidence.
He emphasized that the District Court's findings were clearly erroneous given the conflicting expert testimony and the lack of scientific support for the State's position that a 500-milligram dose would reliably maintain unconsciousness throughout the execution process.
Whether petitioners established a likelihood of success on the merits of their claim that Oklahoma's lethal injection protocol violates the Eighth Amendment?
To obtain a preliminary injunction, petitioners must establish, among other things, a likelihood of success on the merits of their claim.
No. Petitioners have failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution. Petitioners have suggested that Oklahoma could execute them using sodium thiopental or pentobarbital, but the District Court did not commit a clear error when it found that those drugs are unavailable to the State. The District Court also did not commit clear error when it found that midazolam is likely to render a person unable to feel pain associated with administration of the paralytic agent and potassium chloride. Petitioners' speculative evidence regarding midazolam's ceiling effect does not establish that the District Court's findings were clearly erroneous.
Petitioners have failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment.