How Would You Like to Die? Glossip v. Gross Deals Blow to Abolitionists

• Author: Brenda I. Rowe
• Date: 01 January 2018
• DOI: 10.1177/0032885517743716
• Published date: 01 January 2018
• Subject Matter: Articles

https://doi.org/10.1177/0032885517743716

The Prison Journal

2018, Vol. 98(1) 83 –103

© 2017 SAGE Publications

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DOI: 10.1177/0032885517743716

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Article

How Would You Like to

Die? Glossip v. Gross Deals

Blow to Abolitionists

Brenda I. Rowe1

Abstract

After capital punishment opponents’ pressure on drug suppliers reduced the

lethal injection drug supply, Oklahoma began using midazolam, resulting in

botched executions. Condemned inmates sought to stop use of this lethal

injection protocol. In Glossip v. Gross, the U.S. Supreme Court found inmates

failed to establish that such protocols entail a substantial risk of severe

pain compared with available alternatives, undermining the supply side

attack strategy and leaving inmates facing the possibility of an unnecessarily

painful execution. This article places the Glossip decision within the context

of method of execution jurisprudence and discusses implications for the

ongoing battle over capital punishment.

Keywords

Eighth Amendment, cruel and unusual punishment, execution, capital

punishment, lethal injection

Introduction

Although capital punishment has long been a contentious issue in America,

the debate over the death penalty has been reinvigorated recently due to con-

cerns raised by several botched executions during which the lethal injection

protocol failed to produce a quick, painless, sanitized execution (Goodwin,

1Texas A&M University–San Antonio, USA

Corresponding Author:

Brenda I. Rowe, Department of Social Sciences, Texas A&M University–San Antonio,

One University Way, San Antonio, TX 78224, USA.

Email: Brenda.Rowe@tamusa.edu

743716TPJXXX10.1177/0032885517743716The Prison JournalRowe

research-article2017

84 The Prison Journal 98(1)

2015). Although these incidents may have taken the public by surprise, they

were actually the culmination of a series of events in an ongoing behind-the-

scenes battle over capital punishment in America (Stern, 2015). When pres-

sure from capital punishment opponents prompted foreign governments to

impose export restrictions and drug manufacturers to refuse to sell to states

seeking to use their drugs in executions, corrections departments tasked with

carrying out the death penalty faced a shortage of sodium thiopental, the anes-

thetic long used as part of the lethal injection protocol (Dennis & Sun, 2014;

Sack, 2015; Sanburn, 2013). As a result, states began experimenting with

alternate drugs for their lethal injection protocols, resulting in executions that

did not go smoothly (Dennis & Sun, 2014; Sack, 2015; Sanburn, 2013).

Oklahoma’s first execution using midazolam as part of its lethal injection

protocol resulted in a disturbing spectacle during which Clayton Lockett

remained conscious and writhed, and experienced what appeared to be a pain-

ful, prolonged death (Stern, 2015). After this botched execution, condemned

Oklahoma inmates brought a civil rights lawsuit claiming Oklahoma’s method

of execution violated the Eighth Amendment’s prohibition on cruel and unusual

punishment and sought a preliminary injunction preventing the state from

using this lethal injection protocol (Glossip v. Gross, 2015; Stern, 2015). In

Glossip v. Gross (2015), a divided U.S. Supreme Court held that the condemned

inmates were not entitled to a preliminary injunction because the inmates did

not establish that they were likely to succeed on the merits of their claim that

this lethal injection protocol violated the Eighth Amendment, given the inmates’

failure to prove that states had an available alternate execution method which

would involve substantially less risk of severe pain. The Glossip ruling thus

deals a blow to the abolitionist strategy of eliminating the lethal injection drug

supply as a means to end executions and leaves condemned inmates to “lie in

the bed” abolitionists have made for them—facing an increased risk of an

unnecessarily painful execution because more effective anesthetics are no lon-

ger available to the states (Fan, 2015). This article explicates the Court’s deci-

sion in Glossip v. Gross (2015), places it within the context of recent

developments in the administration of executions in the United States and prior

relevant death penalty case law, and discusses the implications of this impor-

tant decision for the ongoing battle over capital punishment in America.

Overview of U.S. Supreme Court’s Eighth

Amendment Capital Punishment Jurisprudence

Execution methods in the United States have included hangings, firing

squads, the electric chair, the gas chamber, and lethal injection (DiStanislao,

2015; Malik & Holdsworth, 2015). Changes in execution methods over time