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Supreme Court allows use of alternative lethal injection drug

[JURIST] The US Supreme Court on Monday ruled [opinion, PDF] 5-4 in Glossip v. Gross [SCOTUSblog materials] that Oklahoma's use of the sedative midazolam [RxList materials] as part of its lethal injection protocol does not violate the Eighth Amendment ban on cruel and unusual punishment [LII backgrounder]. The issue came before the court after Oklahoma used the midazolam as a replacement when it could not acquire one of the drugs in a protocol already approved [JURIST report] by the court. In that case, Baze v. Rees [Oyez Project backgrounder], the court held that a challenge to an execution method must show a "demonstrated risk of severe pain" and that the risk is "substantial when compared to the known and available alternatives." Because much of the petition was based on factual findings of the trial court, the court used a higher clear error [Georgetown Law backgrounder, PDF] standard in reviewing the lower ruling. Justice Samuel Alito, writing for the court, found that level of error had not been shown. The ruling affirms an earlier decision [opinion, PDF] by the US Court of Appeals for the Tenth Circuit.

Justices Antonin Scalia and Clarence Thomas wrote concurring opinions. Justices Stephen Breyer and Sonia Sotomayor wrote dissents. The court granted certiorari to the case in January and heard oral arguments [JURIST reports] in April.

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