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Glossip v Gross

Summary: The Glossip v. Gross case over the use of midazolam in Oklahoma’s three-drug protocol concluded, with another close vote, that there isn’t enough factual evidence that the drug does not work.

It has been 25 years since there were two justices sitting on the U.S. Supreme Court that were unwaveringly opposed to the death penalty. The late William Brennan Jr. and Thurgood Marshall have been replaced by Justices Ruth Bader Ginsburg and Stephen Breyer in the debate over the lethal-injection drugs.


Brennan and Marshall opposed every death penalty case that came before them, citing that the act went against the Eighth Amendment’s stance on cruel and unusual punishment. Ginsburg and Breyer’s dissenting vote in Glossip v. Gross may be an indication that they intend to oppose every death penalty case as well.

Breyer argued that as a nation we cannot have a death penalty that “serves legitimate penological purposes” and a procedural system that “seeks reliability and fairness” in its application. He believes, as does Ginsburg, that evidence from the past 40 years supports this issue and concludes that the “death penalty violates the Eighth Amendment”.

Justice Antonin Scalia responded to Breyer, just as he did when Justice John Paul Stevens concluded in 2008 that the death penalty was unconstitutional in a lethal-injection case. This time Scalia provided a separate response where he used the same-sex marriage ruling in his statement. He contended that just because five vocal justices took away the ability for the people to decide what they wanted does not give them the right to take away the death penalty too. He emphasized that it is does not violate the Constitution.

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The group of death row inmates comprising Glossip was fighting the use of the sedative drug midazolam in Oklahoma. The drug, usually prescribed for anxiety, is used in Oklahoma’s three-drug protocol. The inmates claimed that this drug, which is administered first, does not properly desensitize the inmate to pain. The court arguments for this case were some of the most contentious of this term. Justice Samuel Alito Jr. wrote the majority opinion, accusing the “abolitionists” of the death penalty, including the lawyers in the case, of creating a “guerilla war” by making the availability of the necessary drugs limited.

The majority opinion went on to explain that the inmates failed to back up their claim by identifying an alternative method, required by Baze v. Rees. The other reason the case failed was that the district court did not commit an error by finding that the inmates failed to prove the risks of the drug.





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