Bench Memos

Supreme Court Upholds Midazolam for Lethal Injection, 5-4

Just now the Supreme Court ruled in Glossip v. Gross that Oklahoma does not violate the Eighth Amendment prohibition on cruel and unusual punishment by using a particular cocktail of drugs involving midazolam. A method-of-execution claim requires a demonstrated risk of severe pain that is substantial compared to the known and available alternatives. This was a particularly important case because the district court made factual findings about the likelihood of pain and the plaintiffs had essentially argued that the appellate courts should find them “clear error,” which would be quite a stretch.  The other major development is that plaintiffs now have to plead the existence of an alternative method of execution. In sum: “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.’” Justice Alito wrote for the majority, which included Chief Justice Roberts, Justice Scalia, Justice Kennedy, and Justice Thomas. Justices Scalia and Thomas each wrote and joined each other’s separate concurring opinions. Justice Sotomayor wrote the principal dissent, joined by the Court’s remaining liberal justices, and Justice Breyer wrote a dissent joined by Justice Ginsburg.​

This post has been updated.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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