The NCSL Blog


By Lisa Soronen

Even if your state doesn’t have the death penalty, but especially if it does, Glossip v. Gross is noteworthy.

Hands through jail barsReceiving much media attention, Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, suggests it is “highly likely” the death penalty violates the Eighth Amendment. He called for a “full briefing on the basic question” of whether capital punishment is unconstitutional.

The U.S. Supreme Court held 5-4 that death row inmates are unlikely to succeed on their claim that using midazolam as a lethal injection drug amounts to cruel and unusual punishment in violation of the Eighth Amendment.

All death penalty states and the federal government use lethal injection. In Baze v. Rees (2008), the court approved a three-drug protocol that begins with a sedative, sodium thiopental, followed by a paralytic agent and a drug that causes cardiac arrest.

Anti-death penalty advocates have persuaded U.S. and foreign manufacturers to stop producing sodium thiopental and an alternative, pentobarbital. So Oklahoma and other states began using midazolam. Oklahoma increased the dose from 100 milligrams to 500 milligrams after Clayton Lockett was moving and talking after being administered 100 milligrams of midazolam. (An investigation into Lockett’s execution concluded that problems establishing IV access was the “single greatest factor that contributed to the difficulty in administering the execution drugs.”)

The prisoners claim that Oklahoma’s use of sodium thiopental violates the Eighth Amendment prohibition against “cruel and unusual punishment” because it fails to render them insensate (lacking any sensation).

In Justice Samuel Alito’s majority opinion, the court concluded that the use of midazolam does not likely violate the Eighth Amendment.

First, in Baze, the court stated that prisoners challenging a lethal injection protocol must identify a known and available alternative method of execution.

The prisoners in this case did not do so and claimed they did not have to. Second, the court concluded the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam causes a substantial risk of severe pain.

The inmates’ experts acknowledged that no scientific proof establishes that a 500-milligram dose of midazolam would not render a person sufficiently unconscious to “resist the noxious stimuli which would occur with the application of the second and third drugs.”

While midazolam may have a “ceiling effect,” where an increased dose produces no more effect, only “speculative evidence” suggests that it renders prisoners unable to feel pain.    

Receiving much less attention but equally interesting is Alito’s observation that Justice Sonia Sotomayor’s dissent, joined by Justices Stephen Breyer, Ginsburg and Elena Kagan, implies that only method of capital punishment that is constitutional is lethal injection:

“[i]f States cannot return to any of the ‘more primitive’ methods used in the past and if no drug that meets with the principal dissent’s approval is available for use in carrying out a death sentence, the logical conclusion is clear.” 

The majority opinion effectively answers whether the use of midazolam in executions is constitutional: It is. So states may continue to carry out lethal injection executions using it.

However, Breyer’s dissent invites a case challenging the general constitutionality of capital punishment—a case that could have far-reaching and significant implications for states where the death penalty is used.

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.



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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.