By Linda Lindhorst

I.  Introduction

Oklahoma state officials escorted Clayton Lockett into the execution cham­ber and strapped him into the gurney.1 The State scheduled what was supposed to be a quick and painless lethal injection for 6:00 PM. The executioners began by injecting Lockett with midazolam, a controversial and largely un-tested muscle relaxant,2 followed by a drug to induce paralysis, and a final drug to induce cardiac arrest.3 Sixteen minutes later, after the execution staff should have pronounced Lockett dead, Lockett’s face contorted and body tensed. His head rose from the gurney and his feet kicked.4 Instead of the virtually instantaneous execution lethal injections are supposed to administer, Locket suffered for forty minutes before finally dying of a heart attack.5 Lockett’s botched execution fueled a fierce Eighth Amendment debate over the consti­tutionality of Oklahoma’s three-drug lethal injection protocol.6

On June 25, 2014, in response to Lockett’s execution, Charles Warner7 and twenty other Oklahoma death row inmates sued Oklahoma state officials under 42 U.S.C.§ 1983,8 challenging the state’s lethal injection procedures as a violation of the Eighth Amendment and seeking to stay their executions until a court ruled on the merits.9 Although the Supreme Court refused the stay,10 the Court granted certiorari on the constitutional issue. On June 29, 2015, in a fractured 5–4 decision, the majority declared Oklahoma’s three-drug lethal injection protocol constitutional over scathing dissenting opinions.11 Glossip v. Gross marks the second time that the Supreme Court has upheld the constitutionality of the lethal injection, which has been a controversial execution method since its inception in 1977.12 The Court first assessed the constitutionality of the lethal injection in its 2008 Baze v. Reese opinion,which ruled constitutional the particular three-drug lethal injection that states used at the time.13 The Baze Court also outlined an oft-cited Eighth Amendment test that declares a method of execution to be cruel and unusual punishment if it presents a “substantial” or “objectively intolerable” risk of “serious harm” compared to “known and available alternatives.”14

The lethal injection drugs the Baze Court analyzed are no longer available, and the new, largely untested drug combinations that states, such as Oklahoma, experiment with today fall far short of the Baze constitutionality standard.15 This article argues that the Gross majority opinion erred in declaring Okla­homa’s use of midazolam16 and the reckless manner in which prison officials administer three-drug lethal injections constitutional under the Baze test, and explains that a single-drug lethal injection is a viable, more consistent, and more humane alternative to the current torture regime. Given the current state of death penalty law, even anti-death penalty absolutists must recognize the importance of coupling their arguments for abolition with those urging smaller reforms that bring the law closer to that ultimate goal.

Part II surveys the controversy surrounding the lethal injection and the Supreme Court’s Eighth Amendment method-of-execution decisions, and then introduces both the Gross majority opinion and Justice Breyer’s scathing dissent, in which he questions the constitutionality of the  death penalty alto­gether. Part III applies the Baze test to Oklahoma’s three-drug lethal injection protocol and illustrates why, contrary to the Gross majority ruling, Oklahoma’s current lethal injection protocol is unconstitutional. Lastly, Part IV examines the status of the abolitionist argument in light of Justice Breyer’s dissent.

II. Background: criticism and jurisprudence concerning lethal injections

Although the procedures, doses, and drug types in lethal injection protocols vary considerably across states, lethal injection as a class is the primary execu­tion method in every state that institutes the death penalty.17 Some states still permit alternative execution methods,18 but society and lawmakers consider the lethal injection the most humane execution method available.19 Though humane in theory, the history of botched lethal injections in practice dem­onstrates otherwise.20 A study of all U.S. executions between 1890 and 2010 reveals that the rate of botched lethal injections alone more than doubles the rate of botched executions across all methods.21 The complications inherent in administering multi-drug lethal injections, paired with the largely untrained prison employees that administer these procedures and the frequent accidents that result, raise concern about the humaneness of this execution method. Section A describes the typical lethal injection procedure of administering three consecutive drugs and discusses the accidents that are symptomatic of this complicated procedure, especially when using the controversial drug, midazolam. Section B outlines Supreme Court jurisprudence in Eighth Amendment method-of-execution challenges, and Section C introduces the Court’s most recent case on this issue, Glossip v. Gross.

A. Criticism and evolution of the lethal injection

Although execution by lethal injection is supposed to be quick and painless, many aspects of the complicated three-drug procedure can and do go wrong, leaving the inmate in prolonged agony. Criticisms of this procedure center on the execution staff’s ineptitude, which causes frequent mishap.22 Additional criticisms of three-drug lethal injections focus on the trend amongst states such as Oklahoma, to incorporate midazolam—a controversial and largely untested drug—into what is already a very risky and complicated execution procedure. This section first discusses the procedure that states use in typical three-drug lethal injections, then overviews criticisms of the lethal injection procedure, and finally introduces a single-drug lethal injection alternative  many states are implementing.

  1. Procedural criticisms of three-drug lethal injection protocols

To understand why three-drug lethal injections commonly go wrong, it is important to understand what the procedure entails. First, prison guards strap the inmate to a gurney and insert intravenous (I.V.) lines into one of the inmate’s arms.23 Then, the prison employees inject the inmate with a lethal quantity of three drugs: an anesthetic (traditionally sodium thiopental24), fol­lowed by a muscle relaxant to paralyze the inmate (traditionally pancuronium bromide25), and finally potassium chloride to induce cardiac arrest.26 The first drug, if given in sufficient doses, protects the inmate from excruciating pain associated with the paralysis and cardiac arrest induced by the second two drugs.27 If the execution staff administers the procedure correctly, the inmate should die within minutes of the first injection.28

One common criticism of the three-drug lethal injection hinges on the ineptitude of the prison employees to administer such a complicated medical procedure.29 The concern is that prison employees perform this procedure with minimal training and with no medical professionals in the death chamber to assist.30 The most common accident in three-drug lethal injection procedures is the prison employees’ failure to properly administer the anesthetic.31 The failure to administer the anesthetic can occur by improperly inserting the catheter into the inmate’s vein or by using an ineffective dose of anesthetic.32 Determining the right dose is particularly challenging with condemned in­mates because—due to a history of intravenous drug use, obesity, and other aspects of poor health—they are at particular risk of being immune to the anesthetic effects of the drugs.33 With at-risk inmates such as these, it is es­pecially important that the prison staff monitor the delivery and reaction to the anesthesia to ensure unconsciousness.34 Prisons do not, however, permit anyone to monitor the inmate’s sedation level before the next two painful drugs are administered.35 Without sufficient anesthetic, the inmate will remain conscious as the second drug suffocates him by paralyzing his diaphragm, and the third drug—potassium chloride—“inflame[s] . . . [his] sensory nerve fibers, literally burning up [his] veins as it travels to [his] heart.”36 An inmate in complete agony will still appear calm to witnesses due to the partial paralysis that prevents him from crying out.37

The complications inherent in three-drug lethal injections, paired with the medical incompetence of the execution staff, results in frequent botched executions throughout the nation. In Oklahoma’s execution of Lockett, the prison staff struggled to find a vein in his arm, so they tried to set an I.V. into his groin, which blew out one of his veins and caused blood to squirt on him.38 In a Kentucky execution, an improperly trained prison guard faced similar struggles and decided to inject the lethal chemicals into the inmate’s neck.39 In Florida, the prison staff “pushed [the needles] all the way through the blood vessels into surrounding soft tissue,” leaving chemical burns and causing severe pain.40 In Texas, an inmate took forty minutes to die after the I.V. popped out of his vein and sprayed the lethal chemicals toward  witnesses.41 In Missouri, the prison staff strapped the inmate so tightly to the gurney that the chemicals stopped circulating, and he was left convulsing.42 In Illinois, a kink in the I.V. tube prevented the drugs from reaching the inmate.43 And, in another case, the drugs unexpectedly clogged the I.V. tube and prolonged the execution.44 Anesthesiologists blamed the inexperienced prison officials, saying that an “I.V. 101” class would have prevented the error.45 In Ohio, prison guards inserted needles into the inmate eighteen times in their pursuit of a usable vein, and at one point the inmate tried to help them locate a vein.46 These are just a few of the countless accidents that occur during complicated three-drug lethal injection procedures.

  1. Criticisms of the inclusion of midazolam in lethal injections

In addition to the complications inherent in three-drug lethal injection pro­tocols, states such as Oklahoma add greater complication and risk by includ­ing a largely-untested drug called midazolam as an experimental anesthetic replacement. Before 2009, states across the nation uniformly administered a standard, well-tested, three-drug cocktail that included the powerful anesthetic, sodium thiopental.47 Then, international and domestic laws that abolished capital punishment,48 paired with the political resistance to aiding capital punishment, forced international pharmaceutical companies to stop selling sodium thiopental to the United States for use in lethal injections.49 In 2009, the Food and Drug Administration (FDA) stopped licensing U.S. pharmaceutical companies to sell sodium thiopental for that purpose as well.50 In order to continue killing inmates, capital punishment states were forced to come up with new lethal-injection cocktails.51 Without avenues for rigorously testing lethal drugs before use, however, the inmates effectively became lab rats.52 These untested drug combinations resulted in a slew of botched executions and subsequent Eighth Amendment challenges, which in turn led states to pass secrecy laws to avoid condemned inmates’ attorneys finding out the ingredients, effectiveness, doses, and suppliers of these new chemicals.53

One such anesthetic replacement drug that states throughout the country began to use is midazolam. Midazolam’s anesthetic qualities, however, dif­fer markedly from sodium thiopental, and therefore has a markedly different effect on inmates.54 Sodium thiopental is a rapid-onset, short-acting barbitu­rate55 that hospitals widely use as their general anesthetic because it causes unconsciousness within thirty to forty-five seconds.56 Midazolam, on the other hand, is not an anesthetic. Rather, it causes muscle relaxation and memory loss by enhancing the effect of the neurotransmitter gamma-aminobutyric acid (GABA), allowing it to more easily attach to the GABA receptors.57 Mid­azolam, like all benzodiazepines,58 reaches a “ceiling effect” when there is no more GABA available to bind to GABA receptors.59 This ceiling effect often occurs before midazolam saturates the person’s nerves to a level necessary to induce unconsciousness.60 Arizona’s execution of Joseph Wood demonstrates midazolam’s ceiling effect, because despite the state’s administration of 750 mg of midazolam—fifteen times the normal dose—Wood still gasped and writhed for two hours before dying.61 Moreover, even if midazolam does cause some level of unconsciousness, it cannot induce a “coma-like” state of unconsciousness. Therefore, the inmate may be “jolted into consciousness” by stimulation such as the pain potassium chloride inflicts—which is the third drug in the three-drug lethal injection sequence.62 Thus, midazolam on its own cannot serve as a reliable anesthetic.

Several states, including Arizona, Florida, Ohio, and Oklahoma, incorpo­rated the drug into their executions, despite warnings of the ineffectiveness of midazolam, and the results were disastrous.63 Ohio was the first state to use midazolam in an execution, and the inmate gasped, writhed, and struggled for air for twenty-six minutes.64 A priest who witnessed the execution described it as “ghastly” and “inhumane.”65 Arizona also used midazolam in an execu­tion, and the inmate gulped and snorted for ninety minutes before he died.66 The enormity of these botched procedures led Ohio, Arizona, and Kentucky to categorically ban midazolam from all prospective lethal injections.67 Okla­homa then used midazolam in Lockett’s execution, and he writhed in pain for forty minutes before suffering a heart attack.68 Thus, although the inclusion of midazolam in lethal injections is relatively new, the immediate adverse results led to widespread controversy over the humaneness of the drug.

The sweeping criticisms of midazolam and three-drug lethal injections  compelled several states to turn to a more simple, consistent, and error-proof method of lethal injection that involves only one drug. Single-drug execu­tions are carried out with lethal doses of a single anesthetic or barbiturate,69 much like doctor-assisted suicides and euthanasia.70 Ohio was the first state to administer a one-drug execution in 2009, and the inmate died within ten minutes and showed no sign of suffering.71 Currently, eight states have for­mally adopted single-drug lethal injection protocols and six more plan to do so for future executions.72 Experts throughout the nation are starting to call for this alternative. Richard Dieter, the executive director of the Death Penalty Information Center, explained that single-drug executions are “the wave of the future” and that “all . . . major death penalty states have been switching to a single drug.”73 Additionally, the “Constitution Project”—a highly respected think tank composed of bipartisan legal experts—issued a 2014 Report spe­cifically calling for a single-drug lethal injection.74 The Constitution Project’s Report carries particular clout because it is endorsed by experts who both oppose and favor the death penalty, including former judges, police chiefs, attorneys general and governors who have signed execution warrants.75 The trend throughout the nation toward single-drug lethal injections, paired with widespread societal outrage over contemporary three-drug lethal injections, casts significant doubt on the constitutionality of complicated and experimental multi-drug procedures.

B. Evolution of Eighth Amendment jurisprudence on method-of-execution challenges

The Eighth Amendment’s prohibition on cruel and unusual punishment limits state execution methods to those that do not inflict pain or suffering beyond what is reasonably necessary to induce death. The exact standards that the Eighth Amendment imposes have varied over time because the Amend­ment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”76 The Supreme Court’s first method-of-execution decision, Wilkerson v. Utah, upheld the constitutionality of the firing squad and instituted the principle that punishments are “cruel and unusual” if they involve pain beyond what is normally expected at death.77 Eleven years later, the Court expounded the Eighth Amendment principle that execution methods must also guarantee a quick and painless death.78 In so deciding, the Court explained that New York’s “application of electricity to the vital parts of the human body” would undoubtedly cause an instantaneous and painless death.79 Half a century later, in Louisiana ex rel. Francis v. Resweber, the Court addressed whether a second imposition of electrocution, after an initial attempt failed, violated the Eighth Amendment.80 The Court determined that the second electrocution attempt did not run afoul of the Eighth Amendment because the first failed attempt was an unforeseeable accident, and therefore, did not add an element of cruelty to the subsequent execution.81

time, but the opinion established an Eighth Amendment test to determine when an execution method would cross this constitutional line.83 Under Baze, for an execution method to violate the Eighth Amendment, “a prisoner [must] establish that the state’s lethal injection protocol [1] creates a demonstrated risk of severe pain” and “[2] that the risk is substantial when compared to the known and available alternatives.”84

The “risk of pain” prong of the test focuses on the amount of pain that the execution method could inflict upon the inmate and the risk of accidents during the administration of the execution. The Baze Court emphasized that “[s]imply because an execution method may result in pain, either by ac­cident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual” under the Eighth Amendment.85 However, repeated failure—as opposed to an isolated accident— would constitute an Eighth Amendment violation.86 The Baze Court found Kentucky’s inclusion of sodium thiopental in its three-drug cocktail87 eliminated any significant risk of pain because, if the prison employees properly administered the anesthetic, the prisoner would not feel the subsequent injection of drugs.88

The Court further explained that “[a] state with a lethal injection protocol substantially similar to the protocol [upheld in Baze]” would not present an unconstitutional risk of pain.89 The Court did, however, recognize that without a proper dose of sodium thiopental to render the prisoner unconscious, there would be a “constitutionally unacceptable risk of suffocation from the ad­ministration of pancuronium bromide and of pain from potassium chloride.”90 Thus, to meet the first prong of the Baze test, the inmate must either prove that the drug combination itself presents a substantial risk of pain, or that there is substantial risk of accident during the procedure that would cause pain.91

The “viable alternative” prong of the Baze test includes a comparison to other, equally effective methods of execution the state could implement that would substantially lower the risk of pain.92 In Baze, the Court rejected the petitioner’s argument that a single-barbiturate injection was a viable alterna­tive because such a method had “not been adopted [or tried] by any State.”93 The Court explained that “Kentucky’s continued use of the three-drug protocol cannot be viewed as posing an ‘objectively intolerable risk’ when petitioners have proffered no study showing that the one-drug method is an equally effective manner of imposing a death sentence.”94 The drastic change in the availability of lethal injection drugs and consequent slew of botched executions since Baze, however, paved the way for the re-assessment of the constitutionality of three-drug lethal injections in Glossip v. Gross.95

C. Glossip v. Gross: Constitutional challenge to Oklahoma’s three-drug  lethal injection

Despite the clear agony and torture Oklahoma subjected inmate Clayton Lockett to during his April 29, 2014 execution, in Glossip v. Gross the United States Supreme Court upheld the constitutionality of Oklahoma’s three-drug lethal injection protocol. The three-drug lethal injection Oklahoma used on Clayton Lockett96 caused him to strain on the gurney in what seemed to be extreme pain and exclaim “something is wrong” and the “drugs aren’t work­ing.”97 The initial drug, midazolam, failed to induce Lockett into a “coma-like state,” and he lay in agony for forty minutes until finally suffering a heart attack.98 The White House released a statement that the execution “fell short of humane standards.”99

Dozens of condemned Oklahoma inmates sued the state, citing Okla­homa’s use of midazolam as a replacement for sodium thiopental as an Eighth Amendment violation.100 The United States Supreme Court granted certiorari to determine whether it is constitutional for a state to perform a three-drug lethal injection that includes midazolam, even though there is great risk it will cause the condemned inmate significant pain.101 Oklahoma defended its lethal injection protocol by arguing that there was no viable alternative, and that the constitutional concerns that may have existed during Lockett’s execution no longer exist now because the state substantially increased the dose of mid­azolam to ensure complete unconsciousness.102 The state also cited Florida’s execution of ten inmates with a protocol that incorporates midazolam “without serious incident” as reason to support the constitutionality of midazolam.103

The majority opinion in Gross applied the Baze v. Rees test to Oklahoma’s lethal injection protocol and concluded that it did not violate the Eighth Amendment. First, the majority held that the condemned inmates failed to prove a single-drug lethal injection was a viable alternative, which the court deemed a prerequisite for declaring the state’s existing method unconstitu­tional.104 This finding rested largely on Oklahoma officials’ cursory claim that they could not procure drugs for a single-drug lethal injection.105 To the contrary, drugs for single-drug lethal injections appear to be widely avail­able.106 For example, in the short time since the petitioners filed for certiorari in this case, three other states carried out six single-drug executions using pentobarbital.107 According to Fordham Professor Deborah Denno—a known expert in the field of lethal injections—any compounding pharmacy can make pentobarbital, and “[y]ou could build a pharmacy in your prison.”108 Texas of­ficials purchased their pentobarbital from a nearby compounding pharmacy.109 Oklahoma failed to address why pentobarbital is readily available to states throughout the nation but not to Oklahoma.

Second, the court held that the condemned inmates failed to prove a sub­stantial risk of significant pain in future Oklahoma lethal injections because the state allegedly addressed the errors that caused Lockett’s painful and prolonged execution.110 Based on these findings, the court affirmed the Tenth Circuit’s decision. Two Justices, however, wrote scathing dissents and high­lighted the shortcomings in the majority’s analysis. Justice Sotomayor went as far as to describe Oklahoma’s execution method as a “chemical equivalent of being burned at the stake.”111

Perhaps the most noteworthy dissent came from Justice Breyer, whose 41-page opinion explains why he believes “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’112 ” Breyer argues that for the death penalty to be constitutional it  must have “safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily.”113 Yet, Breyer cites the astonishingly high number of exonerated death row inmates as proof of the unreliability and error-prone nature of capital punishment, and cites the increasingly rare and arbitrary imposition of the death penalty as proof that the punishment is “unusual.”114 In a particularly illuminating statement, Breyer explains, “[f]rom a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?115

Breyer further supports his argument through an evaluation of the “dehu­manizing” effect of spending years on death row leading up to execution on condemned inmates. He discusses the torture inherent in solitary confine­ment paired with a looming yet uncertain death date,116 and adds that, “[g]iven the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed...”117 The inherent delay on death row, according to Breyer, also “undermines the death penalty’s penological rationale, perhaps irreparably so.”118 Breyer explains that this Court itself has noted that “if the death penalty does not fulfill the goals of deterrence or retribution, ‘it is nothing more than the purposeless and needless imposition of pain and suffering and hence an unconstitutional punishment.’ ”119 Finally, Breyer ends his opinion with: “I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.”

The potential call to action imbedded in Breyer’s dissent, paired with the scathing criticism of the majority’s analysis that plague both dissenting opin­ions, indicates that the debate over the constitutionality of the lethal injection in America is far from over.

III.        Analysis

The Glossip v. Gross concurring and dissenting opinions simultaneously repress the opportunity to challenge modern day lethal injection protocols under the Eighth Amendment, and open the door to broader litigation and debate over the constitutionality of capital punishment in general. This section explains how the majority misapplied the Baze v. Reese test to erroneously declare Oklahoma’s three-drug lethal injection that incorporates midazolam constitutional, examines the effect a contrary ruling would have on the nation, and briefly analyzes the call to action signaled by Justice Breyer’s dissent. .

A. Why Oklahoma’s three-drug cocktail is unconstitutional and a call for the adoption of a single-drug lethal injection

The Gross majority opinion misapplied the Baze test and erroneously declared Oklahoma’s three-drug lethal injection protocol constitutional. The three-drug lethal injection Oklahoma used to execute Lockett120 violates the Eighth Amendment under Baze because the use of midazolam paired with the clumsy and inconsistent administration of the injections creates a substantial risk of pain, and a significantly safer alternative is now readily available. Short of abolishing the death penalty altogether, as Breyer suggests, a more constitutionally sound result in Gross would have been a reversal of the Tenth Circuit’s ruling, and a mandate that Oklahoma adopt an alternative execution method that eliminates the substantial risk of repeating Lockett’s excruciating experience.

1. Oklahoma’s lethal injection is an Eighth Amendment violation under Baze v. Reese

In Baze, the Supreme Court conceded that without appropriate anesthe­sia, the second and third drugs in a three-drug lethal injection would cause “constitutionally unacceptable” pain.121 Thus, the determination of whether Oklahoma’s lethal injection protocol is “cruel and unusual” under Baze rests entirely on the reliability and effectiveness of the first drug—the anesthetic—to protect against the pain the last two drugs cause. Oklahoma’s particular drug combination is unconstitutional under Baze because (a) it produces a substantial risk of a prolonged and painful death, and (b) there is a viable alternative that substantially reduces the risk of pain.

a. Oklahoma’s current three-drug protocol produces a substantial risk of pain

Contrary to the Gross majority’s assertions, the petitioners in Gross met the first Baze factor because Oklahoma’s three-drug lethal injection protocol that includes midazolam presents a “substantial risk” of serious pain. Although the Baze opinion explained that any lethal injection protocol substantially similar to the protocol the Court upheld in Baze would not create a risk that meets this standard,122 Oklahoma’s lethal injection protocol starkly diverges from the protocol in Baze. First, three-drug lethal injections, as a whole, are significantly less predictable today than they were when the Court decided Baze due to the unavailability of sodium thiopental and consequent state experimentation with new drugs.123 Second, the inclusion of midazolam in place of sodium thiopental further differentiates Oklahoma’s lethal-injection protocol from the protocol the Baze Court analyzed.

The significant increase in the number of accidents associated with insuf­ficiently trained prison employees administering complicated three-drug lethal injections since the 2009 Baze opinion is enough to meet the “substantial risk of pain” prong of the test. The slew of botched three-drug lethal injections over the last several years reveals that prison employees have questionable competence to administer these complicated medical procedures.124 Although the Baze Court rejected the argument that “an unforeseeable accident” could render the entire lethal-injection protocol “cruel and unusual,”125 at the time the Court rendered that decision the rate of botched lethal injections was far lower than it is today, thus making such untoward incidents entirely foresee­able.126 The shortage of sodium thiopental since Baze led states to reduce their anesthetic doses, be secretive and experimental about their drug com­binations, and to seek drugs from unknown suppliers, all greatly increasing complications and the risk of accident.127 Moreover, what the Court deemed constitutional in 2008 may certainly be unconstitutional in 2015, because the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”128 The national awareness and outrage over the inhumaneness of three-drug lethal injections has increased significantly since Baze, and this indicates a change in societal standards of decency.129

In addition to the risk of severe pain associated with contemporary three-drug lethal injections in general, an isolated look at three-drug lethal injections that include midazolam illustrates an even higher risk of pain that was not pres­ent in the cocktail the Baze court analyzed.130 The Baze Court acknowledged that without the proper dose of sodium thiopental, Kentucky’s lethal injection protocol would have presented an unconstitutional risk of pain and suffocation from the administration of the subsequent drugs.131 The use of midazolam in lieu of sodium thiopental raises the very risk against which the Baze court cautioned.  Specifically, midazolam’s anesthetic qualities are far inferior to sodium thiopental due to the ceiling effect that prevents midazolam from inducing a coma-like unconsciousness, and the likely reversal of midazolam’s sedative effects when mixed with stimuli like potassium chloride—the final drug in the three-drug protocol.132 Although in Gross Oklahoma officials argued the state’s increase in the dosage of midazolam from 100mg to 500mg since Lockett’s execution makes it a more reliable anesthetic,133 midazolam’s ceiling effect renders this dosage increase completely ineffective.134 Arizona’s execution of Joseph Wood demonstrates this point perfectly, as the state used 750 mg of midazolam—250 mg more than Oklahoma requires—yet Mr. Wood still gasped and struggled to breathe for hours, because, even in substantial doses, midazolam cannot reliably induce a comatose state.135

The Gross majority failed to address the slew of botched executions across the nation that confirm the ineffectiveness of midazolam as an anesthetic by applying the Baze test to declare Oklahoma’s three-drug lethal injection constitutional.136 Although Oklahoma cited Florida’s use of midazolam in ten executions “without significant incident” as proof of the drug’s success, all this citation proves, as reiterated in Sotomayor’s dissent, is that Florida’s properly-administered paralytic successfully masked the painful results of us­ing midazolam.137 In Lockett’s execution the prison guards did not administer the paralytic properly, which caused viewers to witness his slow asphyxia­tion.138 If prison employees administer the paralytic properly, the pain is no less—the viewers simply do not see the pain beneath the inmate’s paralyzed exterior. The paralyzed inmate still fully experiences the suffocation and the agonizing sensation as the potassium chloride literally burns through the veins.139 The substantial risk of accidents in contemporary three-drug lethal injections in general, compounded with the ineffectiveness of midazolam as a sedative, was certainly sufficient for the petitioners in Gross to meet the first Baze factor, and the Court erred in finding otherwise.

b. One-drug lethal injection protocols present a viable alternative

Contrary to the majority’s finding in Gross, the petitioners also met the second Baze factor because a single-drug lethal injection is a feasible alterna­tive method of execution that “significantly reduces a substantial risk of severe pain.”140 Although the Baze Court rejected the one-drug lethal injection as a viable alternative in 2008, the grounds for that rejection no longer exist.141 Specifically, in 2008, no state had yet used the one-drug protocol, therefore, the petitioner in Baze was unable to effectively argue that it was as reliable as the three-drug protocol.142 Moreover, because other states had yet to try the one-drug method in 2008, it was not a “widely available alternative.”143  Today, however, single-drug lethal injections are irrefutably viable alterna­tives because eight states—Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas, and Washington—have each adopted the single-drug lethal injection method.144

The Gross majority’s rejection of the viability of a single-drug alterna­tive is therefore baseless. The majority erroneously placed the burden on the petitioners to prove the viability of this single-drug alternative, rather than challenging Oklahoma’s cursory claim against such viability.145 Although Oklahoma complained that it could not obtain one of the drugs146 states com­monly use for single-drug lethal injections, well-respected scholars in the field reject that claim as well.147 Additionally, evidence shows that pentobarbital is certainly not the only feasible drug for single-drug lethal injections. For example, in California the state  allows inmates to choose from four possible barbiturates for the single-drug lethal injection: pentobarbital, thiopental, amobarbital, or secobarbital.148 Similarly, Oregon’s terminally ill patients that undergo doctor-assisted suicide have a choice between either seconol or nembutal, both of which cause a quick, painless, and certain death.149

Moreover, from a resource standpoint, using a one-drug rather than three-drug protocol will not impose significant fiscal hardship on the states, con­sidering that single-drug injections involve fewer drugs, less machinery, and far less medical expertise to administer.150 The single-drug lethal injection is also just as—if not more—reliable at inducing death, as has been documented by veterinarians that use single-drug methods to euthanize animals, doctors that perform single-drug doctor-assisted suicides of terminally ill patients, and states that already use one-drug lethal injections.151

Contrary to the Gross majority’s conclusions, one-drug lethal injections also present a substantially reduced risk of pain compared to three-drug lethal injections due to the near elimination of opportunity for accidents. First, administering one drug is much simpler than three, which addresses the significant concern of an incompetent execution staff.152 Second, the one-drug method eliminates the risk of subjecting the inmate to suffocation and immense pain because the one-drug method does not involve a paralytic agent or potassium chloride.153 Thus, because of the substantial risk of pain as well as the availability of a viable alternative that significantly reduces the risk of pain, the three-drug lethal injection Oklahoma used to execute Lockett is cruel and unusual punishment under the Baze test. The majority’s application of the Baze test in Gross was therefore incorrect.

  1. Implications of a Supreme Court decision that three-drug lethal injections like Oklahoma’s are unconstitutional

If, through the inevitable slew of botched lethal injection certiorari peti­tions in the future, the Supreme Court were to reverse its holding in Gross, it would result in significant benefits and only a few practical challenges. A positive implication of a Supreme Court determination that lethal injections like Oklahoma’s are unconstitutional would be upholding the integrity of the Eighth Amendment. To date, the Supreme Court has sided with the state in every method-of-execution case it has heard.154 This trend will continue to degrade the public legitimacy of the Eighth Amendment’s protections unless the Court establishes clear boundaries on the amount of pain state-sanctioned executions may inflict upon inmates. Eighth Amendment boundary setting is particularly important now, when there is widespread scientific evidence that contemporary three-drug lethal injections are paralyzing inmates before subjecting them to “the chemical equivalent of being burned at the stake.”155 Witnesses in the execution chambers are habitually sickened by the sight of these botched executions, and have spoken out about their disgust at witness­ing torture.156 Thus, a reversal of the Gross holding in a future Supreme Court decision is necessary to ensure that no more death-row inmates or witnesses suffer this fate.

Furthermore, although a reversal of the Gross holding in the future would solely be a ruling against the particular state in that case, the implications of the decision would protect the constitutional rights of condemned inmates throughout the nation. The fear of being found in violation of the Eighth Amendment in the future would drive states to better train their execution staff, put more care and research into the selection of drug combinations and dosages, and put more safeguards in place in case a drug does not work. Ad­ditionally, a determination that a single-drug lethal injection is a constitutional alternative will steer the nation towards a more consistent and easily admin­istrable alternative that will likely produce far less controversy and litigation.

A reversal of the Gross holding would naturally also give rise to a few con­cerns. One concern may be that the fear of declaring a specific combination of lethal injection drugs unconstitutional could derail the current state of capital punishment throughout the nation, force states to clamor for a new method or combination of drugs or revert to the older methods of the gas chamber or electric chair.157 This concern, however, would become moot if the Court simultaneously declares the single-drug lethal injection constitutional, because states that use the lethal injection already have the machinery, execution staff, and drugs in place to immediately adopt this change.158

Another related concern, and one Oklahoma raised in Gross, is that many states that use single-drug lethal injection protocols use a lethal dose of sodium thiopental, which is largely unavailable today because the Food and Drug Administration and international laws prohibit the sale of the drug to American prisons.159 Single-drug lethal injections, however, can and have been successfully administered with other more-widely available drugs such as pentobarbital, amobarbital, secobarbital, and nembutal.160

Lastly, critics of a reversal of Gross might fear such a reversal would provide condemned inmates with a strong legal backing in their Eighth Amendment fight against any execution method states choose to adopt. It is true that inmates could cite the new favorable precedent to argue that a multitude of accidents related to a particular execution method, or widespread scientific evidence of pain associated with that method renders the method unconstitutional. How­ever, because the long list of brutally-botched lethal injections and evidence of pain is so widespread today,161 if another method of execution ever invokes a similar level of widespread outrage, then reliance on this precedent may well be necessary to garner another judicial victory. Thus, although practical challenges may result from a reversal in Gross in the future, the integrity of the Eighth Amendment depends on such a ruling.

B. The abolitionist argument in light of Justice Breyer’s Glossip v. Gross dissent

According to Justice Breyer in his Gross dissent, the integrity of the Eighth Amendment may depend on declaring the nation’s use of capital punishment as a whole unconstitutional. In his 41-page opinion, Breyer indicates that the increasing complications inherent in keeping the nation’s lethal injection re­gime within the bounds of the Eighth Amendment has reached such a height that the time is ripe to consider the broader constitutional analysis of the death penalty in its entirety.162 There is no denying that an increasing number of people throughout the nation are beginning to share Breyer’s position.163 An October Gallup poll indicates that national support for capital punishment is at its lowest in decades, showing a consistent decline since the 1990s.164 However, the unwavering support capital punishment enjoys in a select few states means that if national abolishment is the answer, it must come from the Supreme Court.

The Supreme Court is seemingly split down the middle when it comes to the constitutionality of capital punishment. On one side, it is fairly clear that Justices Alito, Thomas and Roberts will never vote to abolish the death penalty.165 On the other side, Justice Breyer, Ginsburg, Kagan and Sotomayor will almost certainly vote to abolish the death penalty if the issue appears before the Court.166 Justice Kennedy provides the key swing vote on the issue. Justice Breyer’s dissent seems to indicate that he believes Justice Kennedy will side with the abolitionists if now faced with the question. Such an outcome seems logical considering Justice Kennedy wrote both majority opinions striking down the death penalty for juveniles and child rapists; and, this term, he included in an opinion a wholly unsolicited invitation to challenge the constitutionality of solitary confinement.167 Justice Kennedy also expressed his disdain for solitary confinement in a March 2015 Congressional hearing, explaining that isolation in American prisons “literally drives men mad.”168 Perhaps these humanitarian impulses extend to ending capital punishment altogether?

Justice Breyer’s opinion raises the critical issue of timing. Breyer’s invita­tion may be a signal that the small window in which the abolitionist move­ment could succeed is currently open.  However, history has shown that if the abolitionists prematurely launch the issue to the Supreme Court, it can result in severe backlash, as was true after the Court’s Georgia v. Furman deci­sion.169 Breyer’s decision now presents the abolitionists with the dilemma of continuing to whittle away at the margins of the issue or fighting for complete abolition.  But waiting any longer to bring the broader question to the Court could mean a lost opportunity. After all, this specific Supreme Court makeup and public disdain for capital punishment may not present itself synchronously again for a long time. This may be the time for action.

3. Conclusion

The death penalty in America has come under unusually sharp and much-deserved scrutiny due to the frequent accidents and visibly torturous pain lethal injections inflict upon condemned inmates.

The majority in Gross unfortunately continued the Court’s unwavering legacy of refusing to deem an execution method unconstitutional.

When the Court next has the opportunity to rule on an Eighth Amendment challenge to three-drug lethal injections, the Court should reverse its holding in Gross and determine that the torture states inflict upon their condemned inmates in the guise of a seemingly humane three-drug lethal injection can no longer stand under the Eighth Amendment. And perhaps, as Justice Breyer signals in his dissenting opinion, the time is ripe for the Court to reassess the constitutionality of capital punishment in the United States in its entirety.



  1. Katie Fretland, Clayton Lockett writhed and groaned. After 43 minutes, he was declared dead, Guardian (April 30, 2014),
  2. Id. Midazolam is supposed to render the condemned inmates unconscious before the lethal drugs enter their system, however the drug is not FDA approved, and has caused several botched executions. See infra Section II.A.2.
  3. Id
  4. Id.
  5. Id.
  6. See infra Section II.B.
  7. Charles Warner is an Oklahoma inmate scheduled for execution two hours after Lockett, but whose execution was stayed. Fretland, supra note 1.
  8. 42 U.S.C. § 1983 permits any person within U.S. jurisdiction to file suit against anyone who, acting under color the color of state law, causes them to be deprived of a right, privilege, or immunity secured by federal law.
  9. See Warner v. Gross, No. 14-cv-00665, 2014 WL 7671680 (W.D. Okla. Dec. 22, 2014).
  10. See Warner v. Gross, 135 S.Ct. 824 (2015).
  11. The case dealing exclusively with the injunction was titled Warner v. Gross. However, the grant of certiorari on the constitutional issue uses the name of another inmate, Richard E. Glossip. See Glossip v. Gross, No. 14–7955, 576 U.S. ___, 135 S. Ct. 1197 (2015), reported sub nom. Warner v. Gross, 135 S. Ct. 1173 (2015).
  12. Baze v. Reese, 553 U.S. 35 (2008).
  13. See id.
  14. Id. at 50, 61 (plurality opinion) (internal quotation marks omitted).
  15. See infra Section II.A.
  16. See supra text accompanying note 2.
  17. Deborah W. Denno, Lethal Injection Chaos Post-Baze, 102 Geo. L.J. 1331, 1334 (2014) [hereinafter Denno, Lethal Injection Chaos]. In many states, lethal injection is the only method of execution, but some states have alternative methods as well. See Authorized Methods, Death Penalty Info. Ctr.,­tion (last visited Dec 22, 2015). Eight states also permit electrocution (Alabama,Arkan­sas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia). Id. Though Tennessee only permits electrocution if lethal injection drugs are unavailable. Id. Five states permit the gas chamber (Arizona, California, Missouri, Wyoming, and Oklahoma). Id. Though Oklahoma only permits the gas chamber if lethal injection drugs are unavailable or if courts strike down the lethal injection. Id. Three states permit hanging (Delaware, New Hampshire, and Washington). Id. Two states permit the firing squad (Utah and Oklahoma). Id. Though Oklahoma only permits firing squad if courts declare both lethal injection and electrocution unconstitutional. Id. Utah used to allow only firing squad if an inmate chose it prior to its elimination in 2004; however, as of March 23, 2015, the state is authorized to use the firing squad if lethal injection drugs are unavailable. Id.
  18. See supra text accompanying note 17.
  19. See Roberta M. Harding, The Gallows to the Gurney: Analyzing the (Un)Constitutional­ity of the Methods of Execution, 6 B.U. Pub. Int. L.J. 153, 163, 153 (1996); Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63, 129, tbl. 1 (2002) [hereinafter Denno, The Troubling Paradox]; Brenton Schick, Lethal Injec­tion, Cruel And Unusual? Establishing A Demonstrated Risk Of Severe Pain: Morales V. Cate, 623 F.3d 828 (9th Cir. 2010), 38 W. St. U. L. Rev. 173, 176 (2008).
  20. The Most Botched Executions, Daily Beast (April 30, 2014),
  21. Id.; Tierney-Sneed, Can the Death Penalty Survive Lethal Injection?, U.S. News (Aug 7, 2014),
  22. See supra Section II.A.1.
  23. See Denno, The Troubling Paradox, supra note 19, at 146.
  24. The FDA now prohibits pharmaceutical companies from selling this drug to prisons. See infra Section II.A.2.
  25. The paralytic stops the inmate’s breathing by paralyzing the diaphragm and lungs.
  26. Michael A. Cokley, Whatever Happened To That Old Saying “Thou Shall Not Kill?”: A Plea for the Abolition of the Death Penalty, 2 Loy. J. Pub. Int. L 67, 93 (2001); See Denno, The Troubling Paradox, supra note 19, at 146.
  27. Baze v. Reese, 553 U.S. 35, 49 (2008) (Alito, J., concurring).
  28. See State by State Lethal Injection, Death Penalty Info. Ctr. http://www.deathpenal­ (last visited Mar. 8, 2015).
  29. See Erik Eckholm, Panel Urges One-Drug Lethal Injections. N.Y. Times (May 7, 2014), Execution team members often do not know the nature or properties of the drugs they are injecting into inmates, nor the risks associated with the procedure. See Morales v. Tilton, 465 F.Supp.2d 972, 979 (N.D. Cal. 2006).
  30. See Eckholm, supra note 29.
  31. See Brown v. Beck, No. 5:06CT3018 H, 2006 WL 3914717, at *7 (E.D.N.C. Apr. 7, 2006); Denno, Lethal Injection Chaos, supra note 17, at 1334; Murderer Executed After a Leaky Lethal Injection, N.Y. Times, Dec. 14, 1988, at A29. See Amanda C. Pustilnik, Pain As Fact And Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions Of Law, 97 Cornell L. Rev. 801, 837 (2012); Human Rights Watch, So Long as They Die: Lethal Injections in the United States 21 (2006), available at http:// [hereinafter Human Rights Watch Report].
  32. See ASA Standards for Basic Anesthesia Monitoring, American Society of Anesthe­siologists (revised Oct. 25, 2005), (retrieved December 22, 2015); 2000 Report of the AVMA Panel on Euthanasia.
  33. See ASA Standards, supra note 32, at 7-8.
  34. See id.
  35. Id. Standard medical (and even veterinary) procedures require a hands-on determination of the patient’s level of anesthesia before the initiation of painful procedures. Id at 15.
  36. See Beck, 2006 WL 3914717, at *7; Denno, Lethal Injection Chaos, supra note 17, at 1334; Murderer Executed After a Leaky Lethal Injection, supra note 31; Pustilnik, supra note 31, at 837; Human Rights Watch Report, supra note 31, at 21.
  37. Human Rights Watch Report, supra note 31, at 21.
  38. Id.; Katie Fretland, Scene at Botched Oklahoma Execution of Clayton Lockett Was ‘A Bloody Mess’, The Guardian (Dec. 13, 2014), [hereinafter Fretland, Scene At Botched Oklahoma].
  39. Deborah W. Denno, Death Bed, 124 TriQuarterly 141, 162 (2006) (discussing Baze).
  40. Ed Pilkington & Alan Yuhas, Lethal Injections: A Brief History of Botched US Executions, Guardian (Apr. 30, 2014), (citing the Associated Press).
  41. See Drawn-out Execution Dismays Texas Inmates, Dallas Morning News, Dec. 15, 1988, at 29A.
  42. Tim O’Neil, Too-Tight Strap Hampered Execution, St. Louis Post-Dispatch, May 5, 1995, at B1; Jim Slater, Execution Procedure Questioned, Kansas City Star, May 4, 1995, at C8.
  43. See Niles Group Questions Execution Procedure, United Press Int’l, Nov. 8, 1992 (LEXIS/NEXUS file).
  44. See Scott Fornek and Alex Rodriguez, Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, Chicago Sun-Times, May 11, 1994, at 5; Rich Chapman, Witnesses Describe Killer’s ‘Macabre’ Final Few Minutes, Chicago Sun-Times, May 11, 1994, at 5.
  45. Rob Karwath & Susan Kuczka, Gacy Execution Delay Blamed on Clogged I.V. Tube, Chicago Trib., May 11, 1994, at 1 (Metro Lake Section).
  46. See State v. Broom, No. 96747, 2012 WL 504504, at *1 (Ohio Ct. App. Feb. 16, 2012); Pilkington & Yuhas, supra note 40.
  47. See Denno, When Legislatures Delegate Death, supra note 19 at 146 tbl. 11.

48     The International Covenant on Civil and Political Rights (ICCPR) does not outright prohibit the death penalty, but a number of less widely adopted treaties do. For example, the Second Optional Protocol to the International Covenant on Civil and Political Rights; the Protocol to the American Convention on Human Rights to Abolish the Death Penalty; Protocol Six to the European Convention for the Protection of Human Rights and Fundamental Freedoms; Protocol Thirteen to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Other treaties strictly limit the death penalty, includ­ing: the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States; the American Convention on Human Rights; and the Arab Charter on Human Rights. See The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalty, Int’l Bar Assoc. (May 2008), (follow “The Death Penalty Under International Law (Deathpenalty_Paper.pdf)” hyperlink)

  1. Id.; See Molly Redden, New Lethal Injections Could Cause Extreme Pain, Make Deaths “Drag On” for Hours, Mother Jones (Nov. 7, 2013, 7:00 AM),
  2. In Lethal Injection Case, High Court has a Chance to Take a Bold Step, L.A. Times (Jan. 26, 2015, 5:38 PM), In 2011, the last U.S. supplier, a company called Hospira, stopped making sodium thiopental. Id.
  3. See Redden, supra note 49.
  4. Id.
  5. For example, Arkansas, Georgia, South Dakota, Texas and Tennessee have all passed laws to keep their execution recipes secret. See Paul Lewis, Report Urges One-Drug Lethal Injection to Avoid Botched US Executions, The Guardian (May 7, 2014, 11:41 AM),; see also Denise Grady, Three-Drug Protocol Persists for Lethal Injections, Despite Ease of Using One, N.Y. Times (May 1, 2014),
  6. See Matt Pearce et al., Arizona Killer Takes 2 Hours to Die, Fueling Lethal-Injection Debate, L.A. Times (July 23, 2014, 11:17 PM),; Lewis, supra note 53.
  7. Central nervous system depressants that produce a spectrum of effects, from mild sedation to total anesthesia.
  8. Bill Perkins, How Does Anesthesia Work?, Scientific American (Feb. 7, 2005),
  9. See generally, Midazolam, U.S. National Library of Medicine, (last visited April 5, 2015).
  10. Drug that causes sedation, sleep, muscle relaxation, hypnosis, and decreased anxiety by enhancing the effect of the GABA at the GABA receptor. See id.
  11. Id.
  12. As explained by anesthesiologist Dr. Lubarsky during his expert testimony in Warner v. Gross, 135 S. Ct. 824 (2015) (Sotomayor, J., dissenting).
  13. See Fernanda Santos, Executed Arizona Inmate Got 15 Times Standard Dose, Lawyers Say, N.Y. Times (Aug. 1, 2014)
  14. See J.G. Reves et al., Midazolam: Pharmacology and Uses, 62 Anesthesiology 310, 318 (1985). See also, Warner, 135 S. Ct. at 824 (Sotomayor, J., dissenting) (citing expert testimony of anesthesiologist Dr. Lubarsky).
  15. Louisiana, Kentucky, Alabama and Virginia also made future plans to incorporate mid­azolam, but have not yet done so. See State by State Lethal Injection, Death Penalty Info. Ctr., (last visited Feb 27, 2015).
  16. Erica Goode, After a Prolonged Execution in Ohio, Questions over ‘Cruel and Unusual,’ N.Y Times, Jan. 17, 2014; Pilkington & Yuhas, supra note 40.
  17. Id.
  18. Pilkington & Yuhas, supra note 40.
  19. See Pearce et al., supra note 54.
  20. See Mark Berman, Ohio Drops Controversial Lethal Injection Drug, Postpones Upcoming Execution, Wash. Post (Jan 9, 2015),; Alan Johnson, ACLU Seeks Execution Records; Inmate Suffocated, Doctor Says, Columbus Dispatch, June 1, 2007, at B5; Pilkington & Yuhas, supra note 40; Brett Barrouquere, Kentucky Drops 2-Drug Executions, Reworking Method, Associated Press (Nov. 14, 2014, 7:00 AM), available at
  21. Fretland, supra note 1.
  22. Central nervous system depressants that produce a spectrum of effects, from mild sedation to total anesthesia.
  23. Oregon’s Death with Dignity Act permits terminally ill patients to take large doses of one of two barbiturates that puts them in a coma within about five minutes, and induces a painless death within half an hour later. See Oregon Department of Human Services, 2009 summary of Oregon’s Death with Dignity Act, (last visited March 3, 2015); Eckholm, supra note 29; Lewis, supra note 53.
  24. Ariane De Vogue & Dennis Powell, Ohio Killer Executed in First Use of Single-Drug Lethal Injection, ABC News (Dec. 8, 2009), See Adam Liptak & Adam B. Ellick, Judge Orders Ohio to Alter Its Method of Execution, N.Y. Times, June 11, 2008,
  25. The eight states that have used the single-drug method are Arizona, Georgia, Idaho, Mis­souri, Ohio, South Dakota, Texas, and Washington. The six states that have announced plans to use it are Arkansas, California, Kentucky, Louisiana, North Carolina, and Ten­nessee. See Denno, Lethal Injection Chaos, supra note 17, at 1359-60 charts 3 & 4; State by State Lethal Injection, Death Penalty Info. Ctr., (last visited Feb 27, 2015). California has formally proposed the one-drug method, which must first be subject to a public hearing before the state’s final adoption of it. Christopher Cadelago & Sam Stanton, Will California Begin Executions Again Under New Method?, The Sacramento Bee (Nov. 6, 2015, 10:08 AM),
  26. Laura Vozzella, Virginia Opts For One-Drug Lethal Injection Protocol, Wash. Post (July 27, 2012),
  27. See The Constitution Project Death Penalty Committee, Irreversible Error: Recom­mended Reforms for Preventing and Correcting Errors in the Administration of Capital Punishment, The Constitution Project (2014),; see also Eckholm, supra note 29.
  28. Lewis, supra note 53.
  29. Trop v. Dulles, 356 U.S. 86, 100 (1958).
  30. 99 U.S. 130, 135-36 (1879). Wilkerson declined to be strapped down before his execution by firing squad. After a sheriff gave the command to fire, Wilkerson moved enough that the bullets struck his arm and torso but not his heart. Wilkerson took 27 minutes to bleed to death. See Gilbert King, Cruel and Unusual History, N.Y. Times (April 23, 2008),
  31. In re Kemmler, 136 U.S. 436 (1890); Harding, supra note 19, at 162.
  32. See Kemmler, 136 U.S. at 443.
  33. 329 U.S. 459 (1947).
  34. Id.
  35. See 553 U.S. 35 (2008).
  36. See generally id.
  37. Id. at 61; A New Test For Evaluating Eighth Amendment Challenges To Lethal Injections, 120 Harv. L. Rev. 1301, 1301 (2007).
  38. Baze, 553 U.S. at 50.
  39. Id. at 49 (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470-71 (1947) (Frank­furter, J., concurring)).
  40. See supra Section II.A (discussing the three-drug combination that, since 2009, is no longer available).
  41. Baze, 553 U.S. at 50.
  42. Id. at 61.
  43. Id. at 53, 55.
  44. See generally id.
  45. “A condemned prisoner cannot successfully challenge a State’s method of execution merely by showing a slightly or marginally safer alternative.” Id. at 51 (Alito, J., concurring).
  46. Id. at 41 (plurality opinion).
  47. Id. at 53, 57.
  48. See supra Section II.A.2.
  49. For more on the crimes Lockett committed and the details of his execution, see Jaime Fuller, Why Were The Two Inmates In Oklahoma On Death Row In The First Place?, Wash. Post (April 30, 2014),

97    Warner v. Gross, 135 S. Ct. 824 (2015) (Sotomayor, J., dissenting); Fretland, Scene At Botched Oklahoma, supra note 38.

  1. Warner, 135 S. Ct. at 824.
  2. Lewis, supra note 53.
  3. See Warner v. Gross, 2014 WL 7671680 (W.D. Okla. 2014) (aff’d 776 F.3d 721 (10th Cir. 2015)).
  4. See id.
  5. See Brief for Respondent at 7, Glossip v. Gross, 135 S. Ct. 1197 (2015) (No. 14-7955).
  6. See id.
  7. See Glossip v. Gross, 576 ­U.S. __, 14 (2015).
  8. See id.; see also Execution List 2015, Death Penalty Info. Ctr., http://www.deathpen­ (last visited Dec. 22, 2015).
  9. See supra text accompanying note 72.
  10. Missouri, Texas, and Georgia. See Execution List 2015, supra note 105. Moreover, Georgia, Mississippi, Missouri, and Texas have all used or plan to use pentobarbital from compound­ing pharmacies. See Wendy N. Davis, Compound Sentence: States Keep Mum On Where Lethal Injection Drugs Are Made, 100-MAR A.B.A. J. 15 (2014); Grady, supra note 53.
  11. Maura Dolan, California Now Under Pressure to Propose Lethal Injection Method, L.A. Times (June 29, 2015, 7:26 PM),
  12. Associated Press, Texas: State Bought Execution Drugs From a Compounding Pharmacy, N.Y. Times (Oct. 3, 2013),
  13. See Gross, 576 U.S. at 16-17. See also infra Section III.A.1.a (discussing why the state’s alleged resolution of the issue is inadequate).
  14. Id. at 2 (Sotomayor J., dissenting).
  15. Id. at 2 (Breyer, J., dissenting).
  16. Id. at 1.
  17. See id. at 17. In a noteworthy reposte to Justice Scalia, Breyer cites the exoneration of Henry Lee McCollum, commonly referred to as “Scalia’s favorite murderer.” Id. at 30.
  18. See id at 9.
  19. Id. at 20-21.
  20. Id. at 22.
  21. Id. at 23.
  22. Id. at 28 (citing Atkins, 536 U. S., at 319 (quoting Enmund v. Florida, 458 U. S. 782, 798 (1982) (internal quotation marks omitted))).
  23. Oklahoma still permits three-drug lethal injections in future executions. See supra Section II.C (introducing Glossip v. Gross).
  24. See Baze v. Reese, 553 U.S. 35, 113-14 (Ginsburg, J., dissenting).
  25. Id. at 61.
  26. See supra Section II.A.2.
  27. See supra Section II.A.1.
  28. Baze, 553 U.S. at 49 (citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470-71 (1947) (Frankfurter, J., concurring)). See supra Section II.B.1 (detailing the Baze opinion).
  29. See Tierney-Sneed, supra note 21; Sarat el al., supra note 20.
  30. See supra Section II.A.1.
  31. See Trop v. Dulles, 356 U.S. 86, 100 (1958).
  32. See supra Section II.A (citing the plethora of botched executions and subsequent societal outcry over lethal injections since 2009).
  33. See supra Section II.A.2 (discussing the botched executions in states throughout the nation that have used midazolam in their lethal injections).
  34. See Baze, 553 U.S. at 53, 55; see also supra Section II.A.
  35. See supra Section II.A.2 (discussing why midazolam is an unreliable anesthetic).
  36. See supra Section II.B.2 (discussing Oklahoma’s arguments in Glossip v. Gross).
  37. See supra Section II.A.2.
  38. See Fernanda Santos, Executed Arizona Inmate Got 15 Times Standard Dose, Lawyers Say, N.Y. Times, Aug. 2, 2014, at A11.
  39. See supra Section II.A.2 (discussing botched lethal injections due to inclusion of mid­azolam).
  40. See Brief for Respondent, supra note 102, at 7. See also Glossip v. Gross, 576 U.S. __, 20-21 (Sotomayor J., dissenting)(“because the protocol involves the administration of a powerful paralytic, it is as Drs. Sasich and Lubarsky explained, impossible to tell whether the condemned inmate in fact remained unconscious”).
  41. See supra Section I.
  42. See supra Section II.A.2.
  43. See Baze, 553 U.S. at 51; see also supra Section II.B.1.
  44. See Baze, 553 U.S. at 41 (plurality opinion); see also supra Section II.B.1.
  45. See id.
  46. See id.
  47. See supra Section II.A.3; Denno, Lethal Injection Chaos, supra note 17, at 1359-60 charts 3 & 4; State by State Lethal Injection, Death Penalty Info. Ctr., http://www.deathpen­ (last visited Dec. 22, 2015).
  48. See Gross, 576 U.S. at 29 (Sotomayor J., dissenting) (criticizing the majority’s imposition of the burden of proof on the condemned inmates.).
  49. The single drug the state claims to be unable to obtain is Pentobarbital.
  50. See supra text accompanying note 107 (citing Fordham Professor Deborah Denno’s state­ment that any compounding pharmacy can make pentobarbital and that “[y]ou could build a pharmacy in your prison.”).
  51. Cadelago & Stanton, supra note 72.
  52. Daniel Engber, How Does Assisted Suicide Work?, Slate (Oct. 6, 2015, 6:20 PM),­cide_work.html.
  53. Currently three-drug lethal injections contain a lethal dose of all three drugs; thus states are simply subtracting the latter two drugs, not changing or adding to the first drug. See supra Section II.A.2.
  54. See supra Section II.A.3; Stefan Anitei, Lethal Injection Means a Slow and Painful Death, Softpedia (Apr. 24, 2007, 1:38 PM),
  55. See Denno, Lethal Injection Chaos, supra note 17, at 1357; News Desk, Death Penalty: States Transition to One-Drug Executions, PBS Newshour (July 19, 2012, 6:56 PM),
  56. See supra Section II.A.
  57. See Wilkerson v. Utah, 99 U.S. 130 (1879); In re Kemmler, 136 U.S. 436 (1890); Baze v. Reese, 553 U.S. 35 (2008); Glossip v. Gross, 576 U.S. __ (2015).
  58. Gross, 576 U.S. at 28 (Sotomayor J., dissenting). See also supra Section II.A.
  59. See supra Section II.A.
  60. See supra text accompanying note 17 (listing states that would revert to older execution methods if a court declares lethal injection unconstitutional).
  61. Or can procure such drugs with reasonable efforts. See supra Section III.A.2.
  62. See id.
  63. See id.
  64. See generally id.
  65. See supra Section II.C. (summarizing Breyer’s dissent in Gross).
  66. See Matt Ford, How a Victory for the Death Penalty May Hasten Its End, The Atlantic (July 23, 2015),
  67. See National Polls and Studies, Death Penalty Info. Ctr., (last visited Dec. 12, 2015); Evan Mandery, An Invitation to End the Death Penalty, Slate (Nov. 12, 2015),
  68. See Mandery, supra note 164; see also Ford, supra note 163.
  69. See Mandery, supra note 164.
  70. See Davis v. Ayala, 135 S. Ct. 2187 (2015) (Kennedy, J., concurring); Kennedy v. Louisi­ana,554 U.S. 407(2008) (striking down the death penalty for the crime of raping a child); Roper v. Simmons, 543 U.S. 551(2005) (striking down the death penalty for juveniles).
  71. See The Editorial Board, Justice Kennedy’s Plea to Congress, N.Y. Times (Apr. 4, 2015),
  72. The Supreme Court’s 1972 decision,Furman v. Georgia, ruled that the death penalty at that time was unconstitutional. 408 U.S. 238 (1972). Following a massive backlash, however, the Supreme Court changed direction four years later in Gregg v. Georgia, which set the abolitionist movement back decades. 428 U.S. 153 (1976). See Mandery, supra note 164.

Lisa Lindhorst graduated from California State University, Sacramento and George Washington University Law School. She is a clerk for the Honorable Kimberly Mueller, U.S. District Court, Eastern District of California.