An overview of Glossip v. Gross and the university press books behind the case.
Injectable midazolam—a benzodiazepine used in lethal injection. CC-BY-3.0 via Wikipedia.
All manner of execution methods have been challenged before the Supreme Court, from firing squad to the electric chair, and not once in the court’s history has it ever invalidated any state’s chosen execution procedure. This streak continued in last week's Glossip v. Gross decision in which the Supreme Court ruled (in a contentious 5-4 split) that lethal injection and the three-drug cocktail administered in recent executions meets constitutional standards.
While crafting their opinions Justices drew from sources as diverse as Enlightenment-era philosophy, to pharmacology, to Slate articles.
“Welcome to Groundhog Day,” was the colorful opening of Justice Antonin Scalia’s opinion—likely a reference to the similarities between Glossip and a 2007 déja vu-inducing case, Baze v. Rees, which similarly challenged the constitutionality of lethal injection (also to no avail). The petitioners in Baze—two death row inmates from Kentucky—lost their suit when the Supreme Court (in a less divisive 7-2 decision) sanctioned the three-drug cocktail commonly used in lethal injection: a sedative to render the condemned insensate to pain, a paralytic agent, and finally a drug that induces cardiac arrest.
In the wake of the decision, anti-death-penalty advocates turned their attention to the source, pressuring pharmaceutical companies to stop supplying the sedatives used in the first round of injection—sodium thiopental and pentobarbital. The companies gradually capitulated to public pressure, with some manufacturers ceasing production of the contested drugs altogether. These embargoes and market exits left death penalty states like Oklahoma and Florida scrambling for a substitute sedative that would render death row inmates unconscious throughout their executions and oblivious to the pain induced by the second and third stages of injection.
Enter midazolam, a sedative of the benzodiazepine family, cousin to other commercially available “benzos” such as Valium and Xanax. With sodium thiopental and pentobarbital off the table, midazolam has been used to induce unconsciousness for a number of recent executions, including last year’s executions of Joseph Wood and Clayton Lockett—both of which sparked outcry when the inmates awoke during their executions, writhing, thrashing, gasping, snorting, and—in Lockett’s case—even speaking. It was his botched injection in Oklahoma, highly popularized in the media, that became the catalyst for Glossip. Both Lockett's and Wood's miscarried executions were largely attributed to midazolam's failings, and its capacity to maintain unconsciousness in the face of agonizing stimuli was called into question before the courts.
The petitioners in the Glossip—all convicted murderers awaiting death row in Oklahoma—challenged the drug protocol used during Lockett’s execution on the grounds that it ran undue risk of cruel and unusual punishment. They argued that midazolam’s unreliability in ensuring a state of unconsciousness introduced the possibility of unnecessary pain, thus violating their Eighth Amendment rights.
Ultimately, the court disagreed. Writing in the majority opinion, Justice Samuel Alito argued that
because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. 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 essentially all risk of pain would effectively outlaw the death penalty altogether.
While a majority of Justices (Alito, Scalia, Thomas, Roberts, and Kennedy) agreed with the court opinion, dissenting Justice, Stephen Breyer, called for nothing less than a serious reevaluation of the death penalty’s constitutionality writ large.
Citing a number of issues, ranging from wrongful conviction to protracted wait periods between sentencing and execution, Justice Breyer’s 44-page opinion (46, including the appendices) exceeded the scope of the case to question the broader implications of the death penalty—a tactic that elicited a spirited response from Justice Scalia in his opinion. Meanwhile, Justice Sonia Sotomayor penned another dissent (joined by Justices Breyer, Kagan, and Ginsburg) siding with Glossip’s petitioners on account of the perceived unreliability of midazolam as a sufficient sedation mechanism.
While capital punishment ultimately remains unchanged and unchallenged by last week's Supreme Court ruling, Glossip v. Gross signifies the complexity of the practical and ethical issues swirling around the death penalty, not to mention the contentious takes on its constitutionality. While crafting their opinions Justices drew from sources as diverse as Enlightenment-era philosophy, to pharmacology, to Slate articles, and cited over a dozen books on the topic—including no less than ten university press titles. For those interested in reading up on the American death penalty, here are a few suggestions on where to start straight from the Supreme Court's Glossip v. Gross syllabus:
#ReadUP: Glossip v. Gross
(All of the following books were cited in Glossip v. Gross. Hover over titles to see which Justices cited them).
Gruesome Spectacles
Botched Executions and America's Death Penalty
by AUSTIN SARAT
CITED BY SOTOMAYOR
Stanford University Press, 2014
Read More »
Mercy on Trial
What It Means to Stop an Execution
by AUSTIN SARAT
CITED BY BREYER
Princeton University Press, 2005
Read More »
The Death Penalty in America
Current Controversies
ed. HUGO ADAM BEDAU
CITED IN THE COURT OPINION
Oxford University Press, 1998
Read More »
The Papers of John Marshall
Volume II
eds. CHARLES T. CULLEN & HERBERT A. JOHNSON
CITED BY BREYER
University of North Carolina Press, 1977
Read More »
Justice Lewis F. Powell
A Biography
by JOHN C. JEFFRIES, JR.
CITED BY BREYER
Fordham University Press, 2001
Read More »
An Expendable Man
The Near-Execution of Earl Washington, Jr.
by MARGARET EDDS
CITED BY BREYER
New York University Press, 2006
Read More »
The Wrong Carlos
Anatomy of a Wrongful Execution
by JAMES S. LIEBMAN
CITED BY BREYER
Columbia University Press, 2014
Read More »
Wilkie Collins's The Dead Alive
The Novel, The Case, and Wrongful Convictions
ed. ROB WARDEN
CITED BY BREYER
Northwestern University Press, 2005
Read More »
Convicting the Innocent
Where Criminal Prosecutions Go Wrong
by BRANDON L. GARRETT
CITED BY BREYER
Harvard University Press, 2012
Read More »
The Death Penalty
An American History
by STUART BANNER
CITED BY BREYER
Harvard University Press, 2009
Read More »
#ReadUP is a hashtag used by the American Association of University Presses (AAUP), its member presses, and their communities, to encourage readers to discover the rich scholarship and literature coming out of UPs today.