Glossip v. Gross
The Supreme Court ruled 5-4 that Oklahoma death-row inmates had not shown they were likely to win their challenge to the state's use of midazolam, a sedative, as the first drug in its three-drug lethal-injection protocol.
The decision lets Oklahoma keep using midazolam and reinforces a rule that inmates challenging any execution method must point to a known, available alternative that would cause less pain -- a requirement that drew a sharp dissent warning the ruling could tolerate extreme suffering.
How it got here: A federal district court denied the inmates' request for a preliminary injunction after an evidentiary hearing; the Tenth Circuit affirmed; the Supreme Court agreed to review that ruling.
The Case in Depth
What happened
Oklahoma sentenced Richard Glossip, John Grant, and Benjamin Cole to death for murders. After drug manufacturers refused to sell the barbiturates Oklahoma had previously used for lethal injection, the state substituted midazolam, a sedative, as the first of three execution drugs. The inmates sued, arguing midazolam cannot reliably keep a person unconscious and unable to feel the severe pain caused by the second and third drugs.
The question before the Court
Could Oklahoma use a sedative called midazolam as the first drug in its three-drug lethal-injection process without violating the Constitution's ban on cruel and unusual punishment?
The Court's answer
Yes — the Court ruled that Oklahoma's death-row inmates had not shown they were likely to win their claim that using midazolam violates the Eighth Amendment. The inmates first needed to identify a known, available alternative method of execution carrying less risk of pain, and the trial court did not clearly err in finding that the drugs they proposed, sodium thiopental and pentobarbital, were unavailable to the state.
The inmates also needed to show that midazolam itself creates a real risk of severe pain, and the Court found no clear error in the trial court's finding that a 500-milligram dose would reliably render a person unconscious and unable to feel pain from the other two drugs used in the execution.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Death-row inmates in Oklahoma and other states now face a demanding path to challenging lethal-injection drugs: they must identify a specific, available alternative that would hurt less. States struggling to obtain their preferred execution drugs, after manufacturers refused to sell them for executions, can keep substituting less-studied sedatives like midazolam without automatically running afoul of the Eighth Amendment.
What changes now
This is a final ruling on the inmates' request for a preliminary injunction, though the underlying lawsuit challenging Oklahoma's execution protocol could still continue in the lower courts. Oklahoma can proceed with executions using its three-drug midazolam protocol. The decision does not resolve broader questions about the death penalty's constitutionality, which Justice Breyer's dissent urged the Court to take up separately in a future case.
What this does not decide
The Court did not decide whether capital punishment itself is constitutional -- a question Justice Breyer's dissent urged the Court to reconsider through full briefing. It also did not rule that midazolam can never be challenged; it decided only that these inmates failed to show a likelihood of success at the preliminary-injunction stage.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia joined the majority in full but wrote separately to attack Justice Breyer's call to reconsider the death penalty's constitutionality. He argued the Constitution explicitly contemplates capital punishment, that the Court has never held it categorically unconstitutional, and that Breyer's reliability, arbitrariness, and delay arguments were internally inconsistent and unsupported.
Concurrence — Justice Thomas
Justice Thomas agreed the claim failed but argued the Eighth Amendment only bars methods of execution deliberately designed to inflict pain, not ones merely risky. He also rebutted Justice Breyer's claim that death sentences are arbitrarily applied, arguing the disparities reflect legitimate jury and local decision-making rather than unconstitutional randomness.
Dissent — Justice Breyer
Justice Breyer argued the death penalty itself likely violates the Eighth Amendment because of unreliability (wrongful convictions), arbitrary application, and decades-long delays that undermine any penological purpose, compounded by its declining use nationwide. He asked for full briefing on whether capital punishment should be found unconstitutional altogether.
Dissent — Justice Sotomayor
“Nevertheless, the Court today turns aside petitioners’ plea that they at least be allowed a stay of execution while they seek to prove midazolam’s inadequacy.”Sotomayor's opening objection to the majority's rejection of the inmates' request for a stay.
Justice Sotomayor argued the district court clearly erred by crediting the state's expert, whose testimony that midazolam could 'paralyze the brain' was scientifically unsupported and contradicted by the record. She also argued Baze never required inmates to identify an available alternative execution method, and that requiring one lets states impose intolerably painful methods so long as no better alternative is proven.
How the Court got there
The legal reasoning, step by step
- To win a preliminary injunction, the inmates had to show they were likely to succeed on the merits of their Eighth Amendment claim, one part of the general four-factor test courts use for preliminary injunctions.
- Under Baze v. Rees, the Court's earlier lethal-injection decision, a prisoner challenging an execution method must show both that the method creates a demonstrated risk of severe pain and that this risk is substantial when compared to a known and available alternative method of execution.
- The Court held the inmates failed the alternative-method requirement because the trial court did not clearly err in finding that sodium thiopental and pentobarbital -- the drugs the inmates proposed instead -- were genuinely unavailable to Oklahoma.
- The Court rejected the argument that an earlier case, Hill v. McDonough, eliminated this alternative-method requirement, explaining that Hill addressed only a civil-procedure pleading rule, not what the Eighth Amendment substantively demands.
- Reviewing the trial court's factual findings under the deferential 'clear error' standard, the Court concluded that the evidence -- including testimony that a 500-milligram dose of midazolam would render an inmate unconscious and insensate to pain -- supported the finding that midazolam would not create a substantial risk of severe pain.
- The Court found the inmates' evidence about midazolam's 'ceiling effect' (the point past which a larger dose produces no greater effect) too speculative to show that the trial court's factual findings were clearly wrong.
Doctrinal impact
Cases affected by this decision
Reaffirms Baze v. Rees (553 U. S. 35)
The Court relies on Baze's controlling opinion as still setting the legal test for method-of-execution challenges.
Distinguishes Hill v. McDonough (547 U. S. 573)
The Court says Hill only decided a civil-procedure pleading question, not the Eighth Amendment's substantive requirements.