## Facts

- Oklahoma historically used a three-drug lethal injection protocol beginning with sodium thiopental, but later substituted pentobarbital and then, when those drugs became unavailable, substituted 500 mg of midazolam as the first drug.
- After a problematic 2014 execution involving an inmate regaining consciousness and dying after an extended period, Oklahoma revised its protocol but retained midazolam among its options.
- Multiple Oklahoma death-row inmates filed a 42 U.S.C. § 1983 action alleging that using midazolam as the first drug created an unconstitutional risk of severe pain under the Eighth Amendment.
- Four inmates sought a preliminary injunction to halt their scheduled executions.
- After an evidentiary hearing, the district court denied a preliminary injunction; the Tenth Circuit affirmed.
- The Supreme Court granted review limited to the midazolam challenge and the governing standard under Baze v. Rees.

## Issues

1. Whether Oklahoma’s use of 500 mg of midazolam as the first drug in a three-drug lethal-injection protocol creates a substantial risk of severe pain in violation of the Eighth Amendment.
2. Whether, in a method-of-execution challenge, the inmate must plead and prove a known and available alternative method that significantly reduces the risk of severe pain.

## Decision

- The Court affirmed the denial of a preliminary injunction.
- The Court held that a method-of-execution claimant must identify a known and available alternative method of execution that entails a lesser risk of pain.
- The Court held the district court did not clearly err in finding that 500 mg of midazolam would render an inmate unconscious and insensate to pain during administration of the second and third drugs.
- Because the inmates failed to show both a substantial risk of severe pain and an available, less painful alternative, they failed to establish a likelihood of success on the merits.

## Legal Principles

- The Eighth Amendment does not require elimination of all risk of pain in carrying out an execution; some risk of pain is inherent in any method.
- A method-of-execution claim requires proof that the challenged protocol presents a substantial risk of severe pain when compared to a feasible, readily implemented, and known and available alternative.
- In reviewing a denial of a preliminary injunction, appellate courts owe deference to district court factual findings absent clear error, including findings crediting expert testimony about drug effects.
- A state’s inability to obtain particular execution drugs due to lack of supply bears on whether an asserted alternative is “available.”

## Conclusion

The Court upheld Oklahoma’s midazolam-based lethal injection protocol on the evidentiary record presented and required inmates challenging an execution method to plead and prove a feasible, known, and available alternative that would significantly reduce the risk of severe pain under the Eighth Amendment.


Glossip v. Gross, 576 U.S. 863 (2015)