throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2014
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` GLOSSIP ET AL. v. GROSS ET AL.
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE TENTH CIRCUIT
` No. 14–7955. Argued April 29, 2015—Decided June 29, 2015
`
`Because capital punishment is constitutional, there must be a constitu-
`tional means of carrying it out. After Oklahoma adopted lethal injec-
`
`tion as its method of execution, it settled on a three-drug protocol of
`(1) sodium thiopental (a barbiturate) to induce a state of uncon-
`
`sciousness, (2) a paralytic agent to inhibit all muscular-skeletal
`movements, and (3) potassium chloride to induce cardiac arrest. In
`Baze v. Rees, 553 U. S. 35, the Court held that this protocol does not
`violate the Eighth Amendment’s prohibition against cruel and unu-
`
`sual punishments. Anti-death-penalty advocates then pressured
`pharmaceutical companies to prevent sodium thiopental (and, later,
`another barbiturate called pentobarbital) from being used in execu-
`tions. Unable to obtain either sodium thiopental or pentobarbital,
`Oklahoma decided to use a 500-milligram dose of midazolam, a seda-
`tive, as the first drug in its three-drug protocol.
`
`
`Oklahoma death-row inmates filed a 42 U. S. C. §1983 action
`
`
`claiming that the use of midazolam violates the Eighth Amendment.
`Four of those inmates filed a motion for a preliminary injunction and
`argued that a 500-milligram dose of midazolam will not render them
`unable to feel pain associated with administration of the second and
`third drugs. After a three-day evidentiary hearing, the District Court
`denied the motion. It held that the prisoners failed to identify a
`known and available alternative method of execution that presented
`a substantially less severe risk of pain. It also held that the prison-
`ers failed to establish a likelihood of showing that the use of midazo-
`lam created a demonstrated risk of severe pain. The Tenth Circuit
`affirmed.
`Held: Petitioners have failed to establish a likelihood of success on the
`merits of their claim that the use of midazolam violates the Eighth
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
`
`
`2
`
`
`GLOSSIP v. GROSS
`
`
`Syllabus
`
`Amendment. Pp. 11–29.
`
`(a) To obtain a preliminary injunction, petitioners must establish,
`among other things, a likelihood of success on the merits of their
`claim. See Winter v. Natural Resources Defense Council, Inc., 555
`U. S. 7, 20. To succeed 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. Baze, su-
`pra, at 61 (plurality opinion). Pp. 11–13.
`
`(b) Petitioners failed to establish that any risk of harm was sub-
`stantial when compared to a known and available alternative method
`of execution. Petitioners have suggested that Oklahoma could exe-
`cute 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. Petitioners argue that the Eighth Amend-
`
`ment does not require them to identify such an alternative, but their
`argument is inconsistent with the controlling opinion in Baze, which
`imposed a requirement that the Court now follows. Petitioners also
`argue that the requirement to identify an alternative is inconsistent
`with the Court’s pre-Baze decision in Hill v. McDonough, 547 U. S.
`
`
`573, but they misread that decision. Hill concerned a question of civ-
`il procedure, not a substantive Eighth Amendment question. That
`
`
`case held that §1983 alone does not require an inmate asserting a
`method-of-execution claim to plead an acceptable alternative. Baze,
`on the other hand, made clear that the Eighth Amendment requires a
`
`prisoner to plead and prove a known and available alternative.
`Pp. 13–16.
`
`
`(c) The District Court 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.
`Pp. 16–29.
`(1) Several initial considerations bear emphasis. First, the Dis-
`trict Court’s factual findings are reviewed under the deferential
`“clear error” standard. Second, petitioners have the burden of per-
`suasion on the question whether midazolam is effective. Third, the
`
`fact that numerous courts have concluded that midazolam is likely to
`render an inmate insensate to pain during execution heightens the
`deference owed to the District Court’s findings. Finally, challenges to
`lethal injection protocols test the boundaries of the authority and
`competency of federal courts, which should not embroil themselves in
`ongoing scientific controversies beyond their expertise. Baze, supra,
`
`at 51. Pp. 16–18.
`
`
`(2) The State’s expert presented persuasive testimony that a 500-
`
`milligram dose of midazolam would make it a virtual certainty that
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
`
`Cite as: 576 U. S. ____ (2015)
`
`
`Syllabus
`an inmate will not feel pain associated with the second and third
`drugs, and petitioners’ experts acknowledged that they had no con-
`trary scientific proof. Expert testimony presented by both sides lends
`
`
`
`support to the District Court’s conclusion. Evidence suggested that a
`500-milligram dose of midazolam will induce a coma, and even one of
`petitioners’ experts agreed that as the dose of midazolam increases, it
`is expected to produce a lack of response to pain. It is not dispositive
`that midazolam is not recommended or approved for use as the sole
`anesthetic during painful surgery. First, the 500-milligram dose at
`issue here is many times higher than a normal therapeutic dose.
`Second, the fact that a low dose of midazolam is not the best drug for
`
`maintaining unconsciousness says little about whether a 500-
`milligram dose is constitutionally adequate to conduct an execution.
`Finally, the District Court did not err in concluding that the safe-
`guards adopted by Oklahoma to ensure proper administration of
`midazolam serve to minimize any risk that the drug will not operate
`as intended. Pp. 18–22.
`(3) Petitioners’ speculative evidence regarding midazolam’s “ceil-
`ing effect” does not establish that the District Court’s findings were
`clearly erroneous. The mere fact that midazolam has a ceiling above
`which an increase in dosage produces no effect cannot be dispositive,
`and petitioners provided little probative evidence on the relevant
`question, i.e., whether midazolam’s ceiling effect occurs below the
`
`level of a 500-milligram dose and at a point at which the drug does
`not have the effect of rendering a person insensate to pain caused by
`the second and third drugs. Petitioners attempt to deflect attention
`from their failure of proof on this point by criticizing the testimony of
`the State’s expert. They emphasize an apparent conflict between the
`State’s expert and their own expert regarding the biological process
`
`that produces midazolam’s ceiling effect. But even if petitioners’ ex-
`
`pert is correct regarding that biological process, it is largely beside
`
`
`the point. What matters for present purposes is the dosage at which
`the ceiling effect kicks in, not the biological process that produces the
`
`effect. Pp. 22–25.
`
`
`
`(4) Petitioners’ remaining arguments—that an expert report pre-
`sented in the District Court should have been rejected because it ref-
`erenced unreliable sources and contained an alleged mathematical
`error, that only four States have used midazolam in an execution,
`and that difficulties during two recent executions suggest that mid-
`azolam is ineffective—all lack merit. Pp. 26–29.
`776 F. 3d 721, affirmed.
`ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
`and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a con-
`
`
`
`3
`
`
`
`
`
`
`
`
`
`
`
`

`
`4
`
`
`GLOSSIP v. GROSS
`
`
`Syllabus
`curring opinion, in which THOMAS, J., joined. THOMAS, J., filed a con-
`curring opinion, in which SCALIA, J., joined. BREYER, J., filed a dissent-
`ing opinion, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dis-
`senting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
`
`
`
`
`

`
`
`
`
`Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 14–7955
`_________________
` RICHARD E. GLOSSIP, ET AL., PETITIONERS v.
`
`
`
`KEVIN J. GROSS, ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE TENTH CIRCUIT
`
`[June 29, 2015]
`
`JUSTICE ALITO delivered the opinion of the Court.
`Prisoners sentenced to death in the State of Oklahoma
`
`filed an action in federal court under Rev. Stat. §1979, 42
`U. S. C. §1983, contending that the method of execution
`now used by the State violates the Eighth Amendment
`because it creates an unacceptable risk of severe pain.
`
`They argue that midazolam, the first drug employed in the
`State’s current three-drug protocol, fails to render a per-
`son insensate to pain. After holding an evidentiary hear-
`ing, 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 Ap-
`peals 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 alterna-
`tive 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
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`2
`
`
`GLOSSIP v. GROSS
`
`Opinion of the Court
`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.
`
`I
`
`
`
`
`A
`
`The death penalty was an accepted punishment at the
`
`time of the adoption of the Constitution and the Bill of
`Rights. In that era, death sentences were usually carried
`out by hanging. The Death Penalty in America: Current
`Controversies 4 (H. Bedau ed. 1997). Hanging remained
`the standard method of execution through much of the
`19th century, but that began to change in the century’s
`later years. See Baze, supra, at 41–42. In the 1880’s, the
`Legislature of the State of New York appointed a commis-
`sion to find “‘the most humane and practical method
`known to modern science of carrying into effect the sen-
`tence of death in capital cases.’” In re Kemmler, 136 U. S.
`436, 444 (1890). The commission recommended electrocu-
`tion, and in 1888, the Legislature enacted a law providing
`for this method of execution. Id., at 444–445. In subse-
`quent years, other States followed New York’s lead in the
`
`“‘belief that electrocution is less painful and more humane
`than hanging.’” Baze, 553 U. S., at 42 (quoting Malloy v.
`South Carolina, 237 U. S. 180, 185 (1915)).
`
`In 1921, the Nevada Legislature adopted another new
`
`method of execution, lethal gas, after concluding that this
`was “the most humane manner known to modern science.”
`State v. Jon, 46 Nev. 418, 437, 211 P. 676, 682 (1923). The
`Nevada Supreme Court rejected the argument that the
`use of lethal gas was unconstitutional, id., at 435–437, 211
`P., at 681–682, and other States followed Nevada’s lead,
`see, e.g., Ariz. Const., Art. XXII, §22 (1933); 1937 Cal.
`Stats. ch. 172, §1; 1933 Colo. Sess. Laws ch. 61, §1; 1955
`
`Md. Laws ch. 625, §1, p. 1017; 1937 Mo. Laws p. 222, §1.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`3
`
`
`
`
`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`Nevertheless, hanging and the firing squad were retained
`in some States, see, e.g., 1961 Del. Laws ch. 309, §2 (hang-
`ing); 1935 Kan. Sess. Laws ch. 155, §1 (hanging); Utah
`Code Crim. Proc. §105–37–16 (1933) (hanging or firing
`squad), and electrocution remained the predominant
`method of execution until the 9-year hiatus in executions
`
`that ended with our judgment in Gregg v. Georgia, 428
`U. S. 153 (1976). See Baze, supra, at 42.
`After Gregg reaffirmed that the death penalty does not
`
`violate the Constitution, some States once again sought a
`more humane way to carry out death sentences. They
`eventually adopted lethal injection, which today is “by far
`the most prevalent method of execution in the United
`States.” Baze, supra, at 42. Oklahoma adopted lethal
`injection in 1977, see 1977 Okla. Sess. Laws p. 89, and it
`eventually settled on a protocol that called for the use of
`three drugs: (1) sodium thiopental, “a fast-acting barbitu-
`rate sedative that induces a deep, comalike unconscious-
`
`ness when given in the amounts used for lethal injection,”
`(2) a paralytic agent, which “inhibits all muscular-skeletal
`movements and, by paralyzing the diaphragm, stops respi-
`ration,” and (3) potassium chloride, which “interferes with
`the electrical signals that stimulate the contractions of the
`
`
`heart, inducing cardiac arrest.” Baze, supra, at 44; see
`also Brief for Respondents 9. By 2008, at least 30 of the
`36 States that used lethal injection employed that particu-
`lar three-drug protocol. 553 U. S., at 44.
`
`While methods of execution have changed over the
`years, “[t]his Court has never invalidated a State’s chosen
`procedure for carrying out a sentence of death as the
`infliction of cruel and unusual punishment.” Id., at 48. In
`Wilkerson v. Utah, 99 U. S. 130, 134–135 (1879), the Court
`
`upheld a sentence of death by firing squad. In In re
`
`Kemmler, supra, at 447–449, the Court rejected a chal-
`
`lenge to the use of the electric chair. And the Court did
`not retreat from that holding even when presented with a
`
`
`
`
`
`

`
`4
`
`
`GLOSSIP v. GROSS
`
`Opinion of the Court
`case in which a State’s initial attempt to execute a pris-
`oner by electrocution was unsuccessful. Louisiana ex rel.
`Francis v. Resweber, 329 U. S. 459, 463–464 (1947) (plu-
`rality opinion). Most recently, in Baze, supra, seven Jus-
`tices agreed that the three-drug protocol just discussed
`does not violate the Eighth Amendment.
`
`Our decisions in this area have been animated in part
`by the recognition that because it is settled that capital
`punishment is constitutional, “[i]t necessarily follows that
`there must be a [constitutional] means of carrying it out.”
`Id., at 47. And because some risk of pain is inherent in
`any method of execution, we have held that the Constitu-
`tion does not require the avoidance of all risk of pain.
`
`Ibid. After all, while most humans wish to die a painless
`death, many do not have that good fortune. Holding that
`the Eighth Amendment demands the elimination of essen-
`tially all risk of pain would effectively outlaw the death
`penalty altogether.
`
`
`
`
`
`B
`Baze cleared any legal obstacle to use of the most com-
`
`mon three-drug protocol that had enabled States to carry
`out the death penalty in a quick and painless fashion. But
`a practical obstacle soon emerged, as anti-death-penalty
`advocates pressured pharmaceutical companies to refuse
`to supply the drugs used to carry out death sentences.
`The sole American manufacturer of sodium thiopental, the
`first drug used in the standard three-drug protocol, was
`persuaded to cease production of the drug. After suspend-
`ing domestic production in 2009, the company planned to
`resume production in Italy. Koppel, Execution Drug Halt
`
`Raises Ire of Doctors, Wall Street Journal, Jan. 25, 2011,
`p. A6. Activists then pressured both the company and the
`Italian Government to stop the sale of sodium thiopental
`for use in lethal injections in this country. Bonner, Letter
`
`from Europe: Drug Company in Cross Hairs of Death
`
`
`
`

`
`5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`Penalty Opponents, N. Y. Times, Mar. 30, 2011; Koppel,
`Drug Halt Hinders Executions in the U. S., Wall Street
`Journal, Jan. 22, 2011, p. A1. That effort proved success-
`ful, and in January 2011, the company announced that it
`would exit the sodium thiopental market entirely. See
`Hospira, Press Release, Hospira Statement Regarding
`PentothalTM (sodium thiopental) Market Exit (Jan. 21,
`2011).
`After other efforts to procure sodium thiopental proved
`
`unsuccessful, States sought an alternative, and they even-
`tually replaced sodium thiopental with pentobarbital,
`another barbiturate. In December 2010, Oklahoma be-
`came the first State to execute an inmate using pentobar-
`bital. See Reuters, Chicago Tribune, New Drug Mix Used
`
`in Oklahoma Execution, Dec. 17 2010, p. 41. That execu-
`tion occurred without incident, and States gradually shifted
`to pentobarbital as their supplies of sodium thiopental
`ran out. It is reported that pentobarbital was used in all
`of the 43 executions carried out in 2012. The Death
`Penalty Institute, Execution List 2012, online at www.
`
`Internet
`deathpenaltyinfo.org/execution-list-2012
`(all
`materials as visited June 26, 2015, and available in Clerk
`of Court’s case file). Petitioners concede that pentobarbi-
`tal, like sodium thiopental, can “reliably induce and main-
`tain a comalike state that renders a person insensate to
`pain” caused by administration of the second and third
`drugs in the protocol. Brief for Petitioners 2. And courts
`across the country have held that the use of pentobarbital
`in executions does not violate the Eighth Amendment.
`
`See, e.g., Jackson v. Danberg, 656 F. 3d 157 (CA3 2011);
`Beaty v. Brewer, 649 F. 3d 1071 (CA9 2011); DeYoung v.
`Owens, 646 F. 3d 1319 (CA11 2011); Pavatt v. Jones, 627
`F. 3d 1336 (CA10 2010).
`Before long, however, pentobarbital also became una-
`
`vailable. Anti-death-penalty advocates lobbied the Danish
`
`manufacturer of the drug to stop selling it for use in exe-
`
`
`
`
`
`

`
`6
`
`
`GLOSSIP v. GROSS
`
`Opinion of the Court
`cutions. See Bonner, supra. That manufacturer opposed
`the death penalty and took steps to block the shipment of
`pentobarbital for use in executions in the United States.
`Stein, New Obstacle to Death Penalty in U. S., Washing-
`ton Post, July 3, 2011, p. A4. Oklahoma eventually be-
`
`came unable to acquire the drug through any means. The
`District Court below found that both sodium thiopental
`
`and pentobarbital are now unavailable to Oklahoma. App.
`67–68.
`
`
`
`
`
`
`
`
`
`C
`Unable to acquire either sodium thiopental or pentobar-
`
`bital, some States have turned to midazolam, a sedative in
`the benzodiazepine family of drugs. In October 2013,
`Florida became the first State to substitute midazolam for
`pentobarbital as part of a three-drug lethal injection pro-
`tocol. Fernandez, Executions Stall As States Seek Differ-
`ent Drugs, N. Y. Times, Nov. 9, 2013, p. A1. To date,
`Florida has conducted 11 executions using that protocol,
`which calls for midazolam followed by a paralytic agent
`and potassium chloride. See Brief for State of Florida as
`Amicus Curiae 2–3; Chavez v. Florida SP Warden, 742
`
`F. 3d 1267, 1269 (CA11 2014). In 2014, Oklahoma also
`substituted midazolam for pentobarbital as part of its
`three-drug protocol. Oklahoma has already used this
`three-drug protocol twice: to execute Clayton Lockett in
`April 2014 and Charles Warner in January 2015. (Warner
`was one of the four inmates who moved for a preliminary
`injunction in this case.)
`The Lockett execution caused Oklahoma to implement
`
`new safety precautions as part of its lethal injection proto-
`col. When Oklahoma executed Lockett, its protocol called
`for the administration of 100 milligrams of midazolam, as
`
`compared to the 500 milligrams that are currently re-
`quired. On the morning of his execution, Lockett cut
`himself twice at “‘the bend of the elbow.’” App. 50. That
`
`
`
`
`
`

`
`7
`
`
`
`
`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
` evening, the execution team spent nearly an hour making
`
`at least one dozen attempts to establish intravenous (IV)
`access to Lockett’s cardiovascular system, including at his
`arms and elsewhere on his body. The team eventually
`believed that it had established intravenous access
`through Lockett’s right femoral vein, and it covered the
`injection access point with a sheet, in part to preserve
`Lockett’s dignity during the execution. After the team
`administered the midazolam and a physician determined
`that Lockett was unconscious, the team next administered
`the paralytic agent (vecuronium bromide) and most of the
`potassium chloride. Lockett began to move and speak, at
`which point the physician lifted the sheet and determined
`that the IV had “infiltrated,” which means that “the IV
`fluid, rather than entering Lockett’s blood stream, had
`leaked into the tissue surrounding the IV access point.”
`
`
`Warner v. Gross, 776 F. 3d 721, 725 (CA10 2015) (case
`below). The execution team stopped administering the
`
`remaining potassium chloride and terminated the execu-
`tion about 33 minutes after the midazolam was first in-
`jected. About 10 minutes later, Lockett was pronounced
`dead.
`
`An investigation into the Lockett execution concluded
`that “the viability of the IV access point was the single
`greatest factor that contributed to the difficulty in admin-
`istering the execution drugs.” App. 398. The investiga-
`tion, which took five months to complete, recommended
`several changes to Oklahoma’s execution protocol, and
`Oklahoma adopted a new protocol with an effective date of
`September 30, 2014. That protocol allows the Oklahoma
`Department of Corrections to choose among four different
`drug combinations. The option that Oklahoma plans to
`use to execute petitioners calls for the administration of
`500 milligrams of midazolam followed by a paralytic agent
`
`
`
`
`
`

`
`8
`
`
`
`
`GLOSSIP v. GROSS
`
`Opinion of the Court
` and potassium chloride.1 The paralytic agent may be
`
`
` pancuronium bromide, vecuronium bromide, or rocuronium
`bromide, three drugs that, all agree, are functionally
`equivalent for purposes of this case. The protocol also
`includes procedural safeguards to help ensure that an
`inmate remains insensate to any pain caused by the ad-
`ministration of the paralytic agent and potassium chlo-
`ride. Those safeguards include: (1) the insertion of both a
`primary and backup IV catheter, (2) procedures to confirm
`the viability of the IV site, (3) the option to postpone an
`execution if viable IV sites cannot be established within an
`hour, (4) a mandatory pause between administration of
`the first and second drugs, (5) numerous procedures for
`monitoring the offender’s consciousness, including the use
`of an electrocardiograph and direct observation, and
`(6) detailed provisions with respect to the training and
`preparation of the execution team. In January of this
`
`year, Oklahoma executed Warner using these revised
`procedures and the combination of midazolam, a paralytic
`agent, and potassium chloride.
`
`II
`
`
`
`A
`
`
`In June 2014, after Oklahoma switched from pentobar-
`
`bital to midazolam and executed Lockett, 21 Oklahoma
`death row inmates filed an action under 42 U. S. C. §1983
`challenging the State’s new lethal injection protocol. The
`complaint alleged that Oklahoma’s use of midazolam
`violates the Eighth Amendment’s prohibition of cruel and
`
`unusual punishment.
`
`
`In November 2014, four of those plaintiffs—Richard
`
`——————
` 1The three other drug combinations that Oklahoma may admin-
`
`ister are: (1) a single dose of pentobarbital, (2) a single dose of
`sodium thiopental, and (3) a dose of midazolam followed by a dose of
`hydromorphone.
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`Glossip, Benjamin Cole, John Grant, and Warner—filed a
`
`motion for a preliminary injunction. All four men had
`been convicted of murder and sentenced to death by Okla-
`homa juries. Glossip hired Justin Sneed to kill his em-
`ployer, Barry Van Treese. Sneed entered a room where
`Van Treese was sleeping and beat him to death with a
`baseball bat. See Glossip v. State, 2007 OK CR 12, 157
`P. 3d 143, 147–149. Cole murdered his 9-month-old
`daughter after she would not stop crying. Cole bent her
`body backwards until he snapped her spine in half. After
`the child died, Cole played video games. See Cole v. State,
`2007 OK CR 27, 164 P. 3d 1089, 1092–1093. Grant, while
`serving terms of imprisonment totaling 130 years, killed
`Gay Carter, a prison food service supervisor, by pulling
`her into a mop closet and stabbing her numerous times
`with a shank. See Grant v. State, 2002 OK CR 36, 58
`P. 3d 783, 789. Warner anally raped and murdered an 11-
`month-old girl. The child’s injuries included two skull
`
`fractures, internal brain injuries, two fractures to her jaw,
`a lacerated liver, and a bruised spleen and lungs. See
`Warner v. State, 2006 OK CR 40, 144 P. 3d 838, 856–857.
`
`
`The Oklahoma Court of Criminal Appeals affirmed the
`murder conviction and death sentence of each offender.
`Each of the men then unsuccessfully sought both state
`postconviction and federal habeas corpus relief. Having
`
`exhausted the avenues for challenging their convictions
`and sentences, they moved for a preliminary injunction
`against Oklahoma’s lethal injection protocol.
`B
`
`In December 2014, after discovery, the District Court
`held a 3-day evidentiary hearing on the preliminary in-
`junction motion. The District Court heard testimony from
`17 witnesses and reviewed numerous exhibits. Dr. David
`Lubarsky, an anesthesiologist, and Dr. Larry Sasich, a
`doctor of pharmacy, provided expert testimony about
`
`
`
`
`
`
`
`9
`
`
`
`
`
`

`
`
`
`
`
`10
`
`
`GLOSSIP v. GROSS
`
`Opinion of the Court
`midazolam for petitioners, and Dr. Roswell Evans, a
`
`for
`doctor of pharmacy, provided expert testimony
`respondents.
`
`
`After reviewing the evidence, the District Court issued
`an oral ruling denying the motion for a preliminary in-
`junction. The District Court first rejected petitioners’
`challenge under Daubert v. Merrell Dow Pharmaceuticals,
`
`Inc., 509 U. S. 579 (1993), to the testimony of Dr. Evans.
`It concluded that Dr. Evans, the Dean of Auburn Universi-
`ty’s School of Pharmacy, was well qualified to testify about
`midazolam’s properties and that he offered reliable testi-
`
`mony. The District Court then held that petitioners failed
`to establish a likelihood of success on the merits of their
`claim that the use of midazolam violates the Eighth
`Amendment. The court provided two independent reasons
`for this conclusion. First, the court held that petitioners
`failed to identify a known and available method of execu-
`tion that presented a substantially less severe risk of pain
`than the method that the State proposed to use. Second,
`the court found that petitioners failed to prove that Okla-
`homa’s protocol “presents a risk that is ‘sure or very likely
`to cause serious illness and needless suffering,’ amounting
`to ‘an objectively intolerable risk of harm.’” App. 96 (quot-
`ing Baze, 553 U. S., at 50). The court emphasized that the
`Oklahoma protocol featured numerous safeguards, includ-
`ing the establishment of two IV access sites, confirmation
`of the viability of those sites, and monitoring of the offend-
`er’s level of consciousness throughout the procedure.
`
`The District Court supported its decision with findings
`of fact about midazolam. It found that a 500-milligram
`dose of midazolam “would make it a virtual certainty that
`any individual will be at a sufficient level of unconscious-
`ness to resist the noxious stimuli which could occur from
`
`the application of the second and third drugs.” App. 77.
`Indeed, it found that a 500-milligram dose alone would
`
`likely cause death by respiratory arrest within 30 minutes
`
`
`
`
`
`
`
`

`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`
`
`
` 11
`
`
`
`or an hour.
`
`The Court of Appeals for the Tenth Circuit affirmed.
`776 F. 3d 721. The Court of Appeals explained that our
`decision in Baze requires a plaintiff challenging a lethal
`
`injection protocol to demonstrate that the risk of severe
`pain presented by an execution protocol is substantial
`“‘when compared to the known and available alterna-
`tives.’” Id., at 732 (quoting Baze, supra, at 61). And it
`agreed with the District Court that petitioners had not
`identified any such alternative. The Court of Appeals
`added, however, that this holding was “not outcome-
`determinative in this case” because petitioners additionally
`failed to establish that the use of midazolam creates a
`
`demonstrated risk of severe pain. 776 F. 3d, at 732. The
`
`Court of Appeals found that the District Court did not
`abuse its discretion by relying on Dr. Evans’ testimony,
`and it concluded that the District Court’s factual findings
`about midazolam were not clearly erroneous. It also held
`that alleged errors in Dr. Evans’ testimony did not render
`his testimony unreliable or the District Court’s findings
`clearly erroneous.
`
`Oklahoma executed Warner on January 15, 2015, but
`we subsequently voted to grant review and then stayed
`the executions of Glossip, Cole, and Grant pending the
`
`resolution of this case. 574 U. S. ___ (2015).
`
`III
`
`“A plaintiff seeking a preliminary injunction must estab-
`lish that he is likely to succeed on the merits, that he is
`likely to suffer irreparable harm in the absence of prelimi-
`nary relief, that the balance of equities tips in his favor,
`and that an injunction is in the public interest.” Winter v.
`Natural Resources Defense Council, Inc., 555 U. S. 7, 20
`(2008). The parties agree that this case turns on whether
`
`petitioners are able to establish a likelihood of success on
`the merits.
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`12
`
`
`GLOSSIP v. GROSS
`
`Opinion of the Court
`The Eighth Amendment, made applicable to the States
`
`through the Fourteenth Amendment, prohibits the inflic-
`tion of “cruel and unusual punishments.” The controlling
`opinion in Baze outlined what a prisoner must establish to
`succeed on an Eighth Amendment method-of-execution
`claim. Baze involved a challenge by Kentucky death row
`inmates to that State’s three-drug lethal injection protocol
`of sodium thiopental, pancuronium bromide, and potassium
`
`chloride. The inmates conceded that the protocol, if
`properly administered, would result in a humane and
`constitutional execution because sodium thiopental would
`render an inmate oblivious to any pain caused by the
`second and third drugs. 553 U. S., at 49. But they argued
`
`that there was an unacceptable risk that sodium thiopen-
`tal would not be properly administered. Ibid. The in-
`mates also maintained that a significant risk of harm
`could be eliminated if Kentucky adopted a one-drug proto-
`col and additional monitoring by trained personnel. Id., at
`51.
`The controlling opinion in Baze first concluded that
`
`prisoners cannot successfully challenge a method of execu-
`tion unless they establish that the method presents a risk
`that is “‘sure or very likely to cause serious illness and
`
`needless suffering,’ and give rise to ‘sufficiently imminent
`dangers.’” Id., at 50 (quoting Helling v. McKinney, 509
`U. S. 25, 33, 34–35 (1993)). To prevail on such a claim,
`“there must be a ‘substantial risk of serious harm,’ an
`‘objectively intolerable risk of harm’ that prevents prison
`officials from pleading that they were ‘subjectively blame-
`
`less for purposes of the Eighth Amendment.’” 553 U. S.,
`at 50 (quoting Farmer v. Brennan, 511 U. S. 825, 846, and
`n. 9 (1994)). The controlling opinion also stated that
`prisoners “cannot successfully challenge a State’s method
`of execution merely by showing a slightly or marginally
`safer alternative.” 553 U. S., at 51. Instead, prisoners
`
`must identify an alternative that is “feasible, readily
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.