Glossip v. Gross

Glossip v. Gross, No. 14-7955, 576 U.S. (2015), was a United States Supreme Court case in which the Court held, 5–4, that lethal injections using midazolam to kill prisoners convicted of capital crimes do not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The Court found that condemned prisoners can only challenge their method of execution after providing a known and available alternative method.

Glossip v. Gross
Argued April 29, 2015
Decided June 29, 2015
Full case nameRichard E. Glossip, et al. v. Kevin J. Gross, et al.
Docket no.14-7955
Citations576 U.S. ___ (more)
135 S. Ct. 2726; 192 L. Ed. 2d 761
Opinion announcementOpinion announcement
Case history
Prioraffirming denial of injunction, 776 F.3d 721 (10th Cir. 2015); denying stays of execution, 135 S. Ct. 824 (2015) (Sotomayor, J., dissenting); cert. granted, 135 S. Ct. 1173 (2015).
Subsequentdenying stay of execution, 136 S. Ct. 26 (September 30, 2015) (Breyer, J., dissenting).
Holding
Petitioners have the burden of proof that a method of execution involves any risk of harm which is substantial when compared to a known and available alternative method.
Court membership
Chief Justice
John Roberts
Associate Justices
Antonin Scalia · Anthony Kennedy
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Case opinions
MajorityAlito, joined by Roberts, Scalia, Kennedy, Thomas
ConcurrenceScalia, joined by Thomas
ConcurrenceThomas, joined by Scalia
DissentBreyer, joined by Ginsburg
DissentSotomayor, joined by Ginsburg, Breyer, Kagan
Laws applied
U.S. Const. amend. VIII; 42 U.S.C. § 1983

Background

On January 7, 1997, Justin Sneed beat Barry Van Treese to death with a baseball bat.[1] The killing occurred at the Best Budget Inn in Oklahoma City, Oklahoma, where Van Tresse was the owner, Sneed was the maintenance-man, and Richard Glossip was the manager.[1] In exchange for avoiding the death penalty, Sneed confessed and told police that Glossip had instructed him to commit the murder.[1]

Glossip insisted on his actual innocence and refused to accept a plea bargain.[1] In July 1998, an Oklahoma jury convicted Glossip of the murder and sentenced him to death.[1] In 2001, the unanimous Oklahoma Court of Criminal Appeals threw out that conviction, calling the case "extremely weak" and finding Glossip had received unconstitutionally ineffective assistance of counsel.[1][2]

In August 2004, a second Oklahoma jury convicted Glossip of the murder and sentenced him to death.[1] Glossip complained that prosecutors had intimidated his defense attorney into resigning, but, in April 2007, the Oklahoma Court of Criminal Appeals affirmed the death sentence, with two judges in the majority, one judge specially concurring, and two judges dissenting.[1][3] Glossip attracted the advocacy of Sister Helen Prejean, but failed to get the clemency board to consider letters from Sneed’s family, who believe Sneed is lying.[1]

After a three-justice plurality opinion of the U.S. Supreme Court upheld the use of the sedative sodium thiopental during lethal injections in Baze v. Rees (2008), disconcerted pharmaceutical companies began refusing to supply states with the drug.[4] Oklahoma replaced the general anaesthetic with an untested off-label use of midazolam, keeping the drug’s origin secret.[5] Condemned prisoners Clayton Lockett and Charles Warner sued, and the state trial court found the secrecy law unconstitutional.[5] However, pending an appeal by Oklahoma Attorney General Scott Pruitt, the Oklahoma Court of Criminal Appeals refused to then stay the plaintiffs' imminent executions, so, on April 21, 2014, the Oklahoma Supreme Court did.[5][6] Faced with conflicting court orders, Governor Mary Fallin decided to disobey the supreme court order, explaining the "attempted stay of execution is outside the constitutional authority of that body".[7] The day after the Oklahoma House of Representatives drafted articles of impeachment against the supreme court justices, the court withdrew its stay of execution and reversed the trial court's holding against the state.[7][8]

On April 29, 2014, Oklahoma used midazolam in the execution of Clayton Lockett.[5] After executioners had performed the lethal injection, Lockett began to struggle on the gurney, reportedly groaning "this shit is fucking with my mind" and "the drugs aren't working."[4] Lockett died forty-three minutes after the lethal injection.[5] Oklahoma decided to delay the execution of Warner, who was scheduled to die later that night.[9]

After an investigation, Oklahoma elected to continue using midazolam in executions.[4] On June 25, 2014, Warner, Glossip, and nineteen other Oklahoma death row inmates sued in the United States District Court for the Western District of Oklahoma, alleging Oklahoma's use of midazolam violated the Eighth Amendment to the United States Constitution.[4] At the end of a three-day hearing, U.S. District Judge Stephen P. Friot orally denied the condemned prisoners' request for a preliminary injunction prohibiting the use of midazolam in their executions.[4][10] On January 12, 2015, Tenth Circuit Judge Mary Beck Briscoe, joined by Neil Gorsuch and Scott Matheson Jr., affirmed.[4][11]

Supreme Court of the United States

On January 13, 2015, the condemned prisoners petitioned for a writ of certiorari and stays of their executions from the U.S. Supreme Court.[4] The petitioners argued that the midazolam, intended to be used as sedative, would not render them unable to feel the pain of the other two drugs.[12] On January 15, 2015, the Court denied lead petitioner Warner’s application for a stay of execution, over the written dissent of Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.[13] Oklahoma executed Warner later that day.[4]

However, on January 23, the Supreme Court decided to hear the case, staying the surviving petitioners' executions.[4] The proceeding was then renamed, with Richard Glossip as lead petitioner.[14] One hour of arguments were heard on April 29.[15] At oral arguments, four conservative justices expressed impatience with obstructionist unavailability caused, Justice Scalia said, "by the abolitionists putting pressure on the companies that manufacture" the drugs.[16] Justice Alito called this "guerrilla war against the death penalty", and Justice Kennedy insisted to have an answer from the petitioners on whether the court should take this element into account.[16] Four liberal justices, conversely, harshly questioned the Oklahoma Solicitor General, with Justice Kagan describing the execution protocol as "burning alive, from the inside."[16]

Opinion of the Court
Justice Samuel Alito found the prisoners "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment."

On June 29, 2015, the last day of the term, the Supreme Court ruled against the condemned prisoners in a 5–4 decision.[17] At the opinion announcement, Justices Sotomayor and Breyer read aloud their dissents from the bench, while Scalia also read aloud a statement criticizing the previous week’s decision in Obergefell v. Hodges.[18]

Justice Samuel Alito delivered the opinion of the Court, joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.[19] According to the Court, the Eighth Amendment requires prisoners to show there is a known and available alternative method of execution.[4] The prisoners had failed to do this, the Court found, because the alternative drugs they proposed were unavailable to Oklahoma.[20] The Court explained that Hill v. McDonough (2006) did not apply.[21]

Secondly, the Court found the Eighth Amendment requires prisoners to show the challenged method of execution poses a demonstrated risk of severe pain, emphasizing the burden of proof was on the prisoners, not the state.[4] Although midazolam is not recommended or approved by the Food and Drug Administration as an anesthetic, the Court explained that a constitutionally adequate method of execution does not need to meet the medical standard of care.[22]

The Court credited the testimony of Dr. Roswell Lee Evans, Oklahoma's expert witness, that there is "a virtual certainty" prisoners will feel no pain during lethal injection, rejecting the prisoners' "speculative evidence" of midazolam's ceiling effect.[20] Finally, the Court found there was no merit to the prisoners' criticisms that Dr. Evans' report overused unreliable sources, such as drugs.com, and that it contained mathematical errors.[4]

Justice Scalia's concurrence

Justice Scalia, joined by Justice Thomas, concurred. Scalia attacked Breyer for offering "a white paper devoid of any meaningful legal argument."[23] Mocking Breyer's use of statistics, Scalia wrote "if only Aristotle, Aquinas, and Hume knew that moral philosophy could be so neatly distilled into a pocket-sized, vade mecum 'system of metrics'".[24] Scalia then cited several studies concluding that the death penalty is more deterrent than life in jail.[25]

Given Breyer's call to review precedent, Scalia adds his own call to counsel to brief whether Trop v. Dulles (1958) should be overruled.[26] Noting that the capital punishment debate in the United States had been deliberately left open by the Founders, Scalia concluded "by arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment."[27]

Justice Thomas's concurrence

Justice Thomas, joined by Justice Scalia, concurred. Thomas wrote that "the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means".[19] Thomas wrote separately to clarify that he believes the Eighth Amendment only prohibits executions "deliberately designed to inflict pain."[28] Calling Breyer's use of statistics "pseudoscientific", Thomas found one study's use of "depravity points" dehumanizing.[29] Thomas rejected Breyer's example of a double murderer arbitrarily receiving a lighter sentence than a murderer, citing news reports on WRAL-TV as explanation.[30] Noting that, "in my decades on the Court, I have not seen a capital crime that could not be considered sufficiently 'blameworthy' to merit a death sentence", Thomas concluded by spending several pages graphically describing some of those crimes, including several rapes and several murders committed by the mentally retarded and by juveniles.[31]

Justice Breyer's dissent
Justice Stephen Breyer wrote in dissent "I believe it highly likely that the death penalty violates the Eighth Amendment."

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented.[4] Explaining that the Constitution did not enshrine the standards of the Bloody Assizes or those found in Blackstone’s Commentaries on the Laws of England, Breyer believed that circumstances have radically changed since the death penalty was restored by the Court in Gregg v. Georgia (1976).[32] Breyer gives four reasons he believed the death penalty is unconstitutionally cruel and unusual punishment:

1) Serious unreliability: Breyer believed the wrongful execution of innocent men was cruel, listing Carlos DeLuna, Cameron Todd Willingham, Joe Arridy, and William Jackson Marion as examples.[33] Breyer cited to research that indicates those convicted of capital crimes are more likely to be exonerated.[34] Breyer then described the examples of the conviction and exoneration of Glenn Ford,[35] Henry Lee McCollum (whom Antonin Scalia had previously cited to support his views on the death penalty),[36] and Anthony Ray Hinton.[37]

From this, Breyer concluded that the "intense community pressure" involved in capital cases increases the likelihood of convicting the wrong person.[38] Breyer was also concerned the search for a death-qualified jury might cause bias.[39] Breyer further questioned the reliability of forensic testimony, citing problems with hair analysis.[40] Breyer cited one study concluding that 4% of those sentenced to death are actually innocent.[41] Regardless of the actual innocence of the accused, Breyer cited research identifying prejudicial error in 68% of capital cases.[42] Breyer then included editorials by former Virginia Attorney General Mark Earley rejecting the death penalty.[43]

2) Arbitrariness in application: Breyer believed it is cruel that the death penalty is imposed without reasonable consistency. To show this, he cited a study that attempted to measure the "egregiousness" of different crimes, finding that most death row inmates had not committed worse crimes than those sentenced to life in prison.[44] Rather, Breyer believed the race and gender of the victim is much more important.[45] Because fewer than 2% of counties account for all death sentences imposed nationwide,[46] Breyer postulated that the real driver of inconsistent penalties are the local prosecutors,[47] public defender funding,[48] and race distribution.[49] Criticizing the absence of proportionality review,[50] Breyer goes on to cite several anecdotal examples from news media that he felt were particularly arbitrary.[51]

3) Excessive delays: Breyer believed it is cruel that there is a lengthy delay between sentencing and execution, noting that since 1960, the average delay grew from two years to 18.[52] Firstly, Breyer believed longer delays are cruel, noting that solitary confinement had been criticized by the United Nations Special Rapporteur on Torture.[53] Repeatedly issuing and then revoking death warrants is, according to Breyer, also cruel, noting that, before being exonerated, Willie Jerome Manning,[54] Randall Dale Adams,[55] Clarence Brandley,[56] and Earl Washington, Jr.[57] had all come within days or hours of being executed, multiple times. In light of the death row phenomenon, Breyer did not find it surprising that many inmates volunteer to be executed.[58] Breyer next noted the hostility foreign common law courts have shown to delays before executions in Pratt v A-G for Jamaica (1993), S v Makwanyane (1995), Soering v United Kingdom (1989), and United States v Burns (2001).[59]

Secondly, Breyer believed the only punishment rationales for the death penalty are deterrence and retributive justice. Breyer believed that the death penalty has no deterrent value.[60] Likewise, Breyer believed that retribution is almost as well achieved by life in prison without parole.[61] Breyer did not believe the Founders could have contemplated decades long delays when they wrote the Eighth Amendment.[62] Breyer highlighted that, after retiring from the Court, Justice Lewis F. Powell Jr. testified to Congress that he had changed his mind and now thought excessive delays made the death penalty unconstitutional.[63]

4) Most places within the United States have abandoned its use: Beside being cruel, Breyer believed the death penalty is also unusual because it has become rare. Noting that 41 states had the death penalty before the Court blocked it in 1972,[64] now there are 31, and only three, Texas, Missouri, and Florida, account for 80% of executions.[65] After listing execution statistics, Breyer next considered polling data and an American Law Institute report.[66] Breyer finally considered the death penalty as even more unusual by looking at a vote by the United Nations General Assembly, reports by the International Commission Against the Death Penalty and Amnesty International statistics.[67]

Breyer appended to his dissent five pages of graphs, tables, and maps.[68]

Justice Sotomayor's dissent

Justice Sonia Sotomayor filed a dissent, in which Justices Ginsburg, Breyer, and Elena Kagan joined. Sotomayor stated that "under the Court's new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designates."[19] Sotomayor attacked the credence the Court gave to Oklahoma's expert witness, writing "Dr. Evans' conclusions were entirely unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of midazolam's properties, and apparently premised on basic logical errors."[69] Sotomayor contended Dr. Evans' testimony that midazolam could "paralyze the brain" was directly refuted by peer-reviewed articles cited by the prisoners' expert witnesses.[70]

The majority erred, Sotomayor argued, by "imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his or her own execution."[71] Calling the Court's holding "legally indefensible," she argued the Court had failed to distinguish Hill v. McDonough (2006), and went on to criticize the Court for treating the plurality opinion in Baze v. Rees (2008) as precedent, noting that the Court was ignoring the concurring opinions necessary to achieve that judgment.[72] Condemned prisoners should not be required to meet an additional burden of proof, in Sotomayor's view, simply because they face executions that "States hurriedly devise as they scramble to locate new and untested drugs."[73] Finally, Sotomayor anticipated that, due to the prevalence of botched executions,[74] those condemned to die will increasingly choose execution by firing squad.[75]

Subsequent developments

Oklahoma Attorney General Scott Pruitt scheduled Glossip to die on September 30, 2015.[76] However, Governor Mary Fallin ordered the sentence halted one hour before the execution, explaining that the state did not have in its possession the correct drugs.[76] An Oklahoma grand jury report in May 2016 revealed that the state had obtained the wrong drugs during the execution of Charles Warner, lethally injecting him with potassium acetate instead of potassium chloride.[76]

Commentators complained that the Court majority had applied the preliminary injunction factors from Winter v. Natural Resources Defense Council (2008) as four separate necessary elements, upsetting the balancing test and sliding scale approaches the circuit and district courts had been using to weigh the factors against each other.[4]

See also

References
  1. Liliana Segura & Jordan Smith, What Happened in Room 102, The Intercept (July 9, 2015).
  2. Glossip v. Oklahoma, 29 P.3d 597, 2001 O.K. C.R. 21 (Okla. Crim. App. 2001).
  3. Glossip v. Oklahoma, 157 P.3d 143, 2007 O.K. C.R. 12 (Okla. Crim. App. 2007).
  4. The Supreme Court, 2014 Term — Leading Cases, 129 HARV. L. REV. 171 (2015).
  5. Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett, The Atlantic (June 2015).
  6. Lockett v. Evans, 356 P.3d 58, 2014 O.K. 33 (Okla. 2014) (per curiam).
  7. Cohen, Andrew (29 April 2014). "Oklahoma just neutered its state Supreme Court". The Week. Retrieved 13 December 2016.
  8. Lockett v. Evans, 330 P.3d 488, 2014 O.K. 34 (Okla. 2014) (per curiam).
  9. Eckholm, Erik (30 April 2014). "One Execution Botched, Oklahoma Delays the Next". The New York Times. p. A1. Retrieved 13 December 2016.
  10. Warner v. Gross, No. 5:14-cv-00665 (W.D. Okla. Dec. 22, 2014).
  11. Warner v. Gross, 776 F.3d 721 (10th Cir. 2015).
  12. Jennifer Gerson Uffalussy (30 June 2015). "Supreme Court Allows Use of Controversial Sedative for Lethal Injection: What This Means for the Death Penalty". Yahoo Health.
  13. Warner v. Gross, 135 S. Ct. 824 (2015) (Sotomayor, J., dissenting from denial of stays of execution).
  14. Editorial Board (2015-01-27). "The Humane Death Penalty Charade". New York Times.
  15. Lithwick, Dahlia (April 30, 2015). "A Horrifying Day at Court: Death brings out the worst in the justices". Slate.
  16. Lyle Denniston (29 April 2015). "Argument analysis: Impatience with death-penalty resistance". SCOTUSblog. Retrieved 20 April 2017.
  17. Adam Liptak (30 June 2015). "Justices Approve Execution Drug in a 5-to-4 Vote - A Sharp Clash of Views - Two in Dissent Question Constitutionality of the Death Penalty". The New York Times. p. A1. Retrieved 14 December 2016.
  18. "Glossip v. Gross." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Dec 13, 2016.
  19. Glossip v. Gross, No. 14-7955, 576 U.S. ___, 135 S. Ct. 2726 (2015).
  20. Eric Berger, Gross Error, 91 Wash. L. Rev. 929 (2016).
  21. Glossip, 135 S. Ct. at 2738.
  22. Paul Litton, On the Argument that Execution Protocol Reform is Biomedical Research, 90 Wash. L. Rev. Online 87 (2015).
  23. 135 S. Ct. at 2747 (Scalia, J., concurring).
  24. 135 S. Ct. at 2748 (Scalia, J., concurring).
  25. 135 S. Ct. at 2749 (Scalia, J., concurring) citing Zimmerman, State Executions, Deterrence, and the Incidence of Murder, 7 J. Applied Econ. 163, 166 (2004); Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data, 5 Am. L. & Econ. Rev. 344 (2003) doi: 10.1093/aler/ahg021; Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703, 713 (2005).
  26. 135 S. Ct. at 2749 (Scalia, J., concurring).
  27. 135 S. Ct. at 2750 (Scalia, J., concurring).
  28. 135 S. Ct. at 2750 (Thomas, J., concurring).
  29. 135 S. Ct. at 2752 (Thomas, J., concurring) citing McCord, Lightning Still Strikes, 71 Brooklyn L. Rev. 797, 833–834 (2005).
  30. 135 S. Ct. at 2752 fn. 3 (Thomas, J., concurring) citing Charbonneau, Andre Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26, 2004; Charbonneau, Jury Finds Andre Edwards Guilty of First-Degree Murder, WRAL, Mar. 23, 2004.
  31. 135 S. Ct. at 2752-2755 (Thomas, J., concurring).
  32. 135 S. Ct. at 2755 (Breyer, J., dissenting) citing 4 W. Blackstone, Commentaries on the Laws of England 369–370 (1769) (listing mutilation and dismembering, among other punishments).
  33. 135 S. Ct. at 2756 (Breyer, J., dissenting) citing e.g., Liebman, Fatal Injustice; Carlos DeLuna’s Execution Shows That a Faster, Cheaper Death Penalty is a Dangerous Idea, L. A. Times, June 1, 2012, p. A19, The Wrong Carlos: Anatomy of a Wrongful Execution (2014) ISBN 9780231167239; Grann, Trial By Fire: Did Texas Execute An Innocent Man? The New Yorker, Sept. 7, 2009, p. 42 (Willingham). See also, e.g., Press Release: Gov. Ritter Grants Posthumous Pardon in Case Dating Back to 1930s, Jan. 7, 2011, p. 1 (Arridy); R. Warden, Wilkie Collins’s The Dead Alive: The Novel, the Case, and Wrongful Convictions 157–158 (2005) ISBN 0810122944 (Marion).
  34. 135 S. Ct. at 2757 (Breyer, J., dissenting) citing National Registry of Exonerations, Exonerations in the United States, 1989–2012, pp. 6–7 (2012); accord, Death Penalty Information Center (DPIC), Innocence: List of Those Freed from Death Row.
  35. 135 S. Ct. at 2757 (Breyer, J., dissenting) citing Stroud, Lead Prosecutor Apologizes for Role in Sending Man to Death Row, Shreveport Times, Mar. 27, 2015
  36. 135 S. Ct. at 2757 (Breyer, J., dissenting) citing Katz & Eckholm (September 3, 2014). "DNA Evidence Clears Two Men in 1983 Murder". N. Y. Times. p. A1.
  37. 135 S. Ct. at 2757 (Breyer, J., dissenting) citing Blinder, Alabama Man on Death Row for Three Decades Is Freed as State’s Case Erodes, N. Y. Times, Apr. 4, 2014, p. A11.
  38. 135 S. Ct. at 2758 (Breyer, J., dissenting) citing Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531– 533 (2005); Samuel R. Gross & Barbara O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical Legal Stud. 927, 956–57 (2008); see also B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011) ISBN 9780674066113.
  39. 135 S. Ct. at 2758 (Breyer, J., dissenting) citing Susan D. Rozelle, The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, 38 Ariz. St. L. J. 769, 772–93, 807 (2006); Jesse Nason, Mandatory Voir Dire Questions in Capital Cases: A Potential Solution to the Biases of Death Qualification, 10 Roger Williams U. L. Rev. 211, 214–23 (2004).
  40. 135 S. Ct. at 2758 (Breyer, J., dissenting) citing FBI, National Press Releases, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review, Apr. 20, 2015. See also Hsu, FBI Admits Errors at Trials: False Matches on Crime-Scene Hair, Washington Post, Apr. 19, 2015, p. A1.
  41. 135 S. Ct. at 2758 (Breyer, J., dissenting) citing Gross, SR; O'Brien, B; Hu, C; Kennedy, EH (2014). "Rate of false conviction of criminal defendants who are sentenced to death". Proc Natl Acad Sci U S A. 111: 7230–5. doi:10.1073/pnas.1306417111. PMC 4034186. PMID 24778209.; Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & C. 761 (2007).
  42. 135 S. Ct. at 2759 (Breyer, J., dissenting) citing Andrew Gelman, et al., A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical Legal Stud. 209, 217 (2004).
  43. 135 S. Ct. at 2759 (Breyer, J., dissenting) citing Earley, A Pink Cadillac, An IQ of 63, and A Fourteen-Year-Old from South Carolina: Why I Can No Longer Support the Death Penalty, 49 U. Rich. L. Rev. 811, 813 (2015); Earley, I Oversaw 36 Executions. Even Death Penalty Supporters Can Push for Change, Guardian, May 12, 2014.
  44. 135 S. Ct. at 2760 (Breyer, J., dissenting) citing John J. Donohue III, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?, 11 J. Empirical Legal Stud. 637 (2014).
  45. 135 S. Ct. at 2761 (Breyer, J., dissenting) citing GAO, Report to the Senate and House Committees on the Judiciary: Death Penalty Sentencing 5 (GAO/GGD–90–57, 1990); Steven F. Shatz & Terry Dalton, Challenging the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L. Rev. 1227, 1245–51 (2013).
  46. 135 S. Ct. at 2761 (Breyer, J., dissenting) citing Robert J. Smith, The Geography of the Death Penalty and its Ramifications, 92 B.U. L. Rev. 227, 231–32 (2012); DPIC, The 2% Death Penalty: How A Minority of Counties Produce Most Death Cases At Enormous Costs to All 9 (Oct. 2013).
  47. 135 S. Ct. at 2761 (Breyer, J., dissenting) citing Greg Goelzhauser, Prosecutorial Discretion Under Resource Constraints: Budget Allocations and Local Death-Charging Decisions, 96 Judicature 161, 162–63 (2013); Katherine Barnes, et al., Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases, 51 Ariz. L. Rev. 305 (2009); Justin Marceau, et al., Death Eligibility in Colorado: Many Are Called, Few Are Chosen, 84 U. Colo. L. Rev. 1069 (2013).
  48. 135 S. Ct. at 2761 (Breyer, J., dissenting) citing James S. Liebman, Minority Practice, Majority’s Burden: The Death Penalty Today, 9 Ohio S. J. Crim. L. 255, 274 (2011); see generally Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 (1994). See also Stephen F. Smith, The Supreme Court and the Politics of Death, 94 Va. L. Rev. 283 (2008); American Bar Assn. (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 9.1, Commentary (rev. ed. Feb. 2003), in 31 Hofstra L. Rev. 913, 985 (2003)
  49. 135 S. Ct. at 2762 (Breyer, J., dissenting) citing Levinson, et al., Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States, 89 N.Y.U. L. Rev. 513, 533–36 (2014); cf. G. Ben Cohen & Robert J. Smith, The Racial Geography of the Federal Death Penalty', 85 Wash. L. Rev. 425 (2010).
  50. 135 S. Ct. at 2763 (Breyer, J., dissenting) citing Timothy V. Kaufman-Osborn, Capital Punishment, Proportionality Review, and Claims of Fairness (with Lessons from Washington State), 79 Wash. L. Rev. 775, 791–92 (2004).
  51. 135 S. Ct. at 2763 (Breyer, J., dissenting) citing Charbonneau, Andre Edwards Sentenced to Life in Prison for 2001 Murder, WRAL, Mar. 26, 2004; Shea, Judge Gives Consecutive Life Sentences for Triple Murder, Philadelphia Inquirer, June 29, 2004, p. B5.
  52. 135 S. Ct. at 2764 (Breyer, J., dissenting) citing Dwight Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment?, 29 Seton Hall L. Rev. 147, 181 (1998); Dept. of Justice, Bureau of Justice Statistics (BJS), T. Snell, Capital Punishment, 2013—Statistical Tables 14 (Table 10) (rev. Dec. 2014); DPIC, Execution List 2014.
  53. 135 S. Ct. at 2765 (Breyer, J., dissenting) citing American Civil Liberties Union (ACLU), A Death Before Dying: Solitary Confinement on Death Row 5 (July 2013); ABA Standards for Criminal Justice: Treatment of Prisoners 6 (3d ed. 2011); Haney, Craig (2003). "Mental Health Issues in Long-Term Solitary and "Supermax" Confinement". Crime & Delinquency. 49: 124–156 [124, 130]. doi:10.1177/0011128702239239.; Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol'y 325, 331 (2006).
  54. 135 S. Ct. at 2766 (Breyer, J., dissenting) citing Robertson, With Hours to Go, Execution is Postponed, N. Y. Times, Apr. 8, 2015, p. A17; Nave, Why Does the State Still Want to Kill Willie Jerome Manning? Jackson Free Press, Apr. 29, 2015.
  55. 135 S. Ct. at 2766 (Breyer, J., dissenting) citing Martin, Randall Adams, 61, Dies; Freed With Help of Film, N. Y. Times, June 26, 2011, p. 24.
  56. citing N. Davies, White Lies 231, 292, 298, 399 (1991) ISBN 0679401679.
  57. 135 S. Ct. at 2766 (Breyer, J., dissenting) citing M. Edds, An Expendable Man 93 (2003) ISBN 0814722393.
  58. 135 S. Ct. at 2766 (Breyer, J., dissenting) citing Meredith Martin Rountree, Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures, 82 UMKC L. Rev. 295 (2014); G. Richard Strafer, Volunteering for Execution: Competency, Voluntariness and the Propriety of Third Party Intervention, 74 J. Crim. L. & Criminology 860, 869 (1983).
  59. 135 S. Ct. at 2767 (Breyer, J., dissenting).
  60. 135 S. Ct. at 2767 (Breyer, J., dissenting) citing Sorensen, Wrinkle, Brewer, & Marquart, Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas, 45 Crime & Delinquency 481 (1999) doi:10.1177/0011128799045004005; Bonner & Fessenden, Absence of Executions: A Special Report, States With No Death Penalty Share Lower Homicide Rates, N. Y. Times, Sept. 22, 2000, p. A1; Radelet & Akers, Deterrence and the Death Penalty: The Views of the Experts, 87 J. Crim. L. & C. 1, 8 (1996); Donohue & Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791, 794 (2005); National Research Council, Deterrence and the Death Penalty 2 (D. Nagin & J. Pepper eds. 2012) doi:10.17226/13363.
  61. 135 S. Ct. at 2769 (Breyer, J., dissenting) citing Austin Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) ISBN 9781400826728; ACLU, A Living Death: Life Without Parole for Nonviolent Offenses 11, and n. 10 (2013)).
  62. 135 S. Ct. at 2769 (Breyer, J., dissenting) citing P. Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776– 1861, p. 17 (1982) ISBN 082404861X; Thomas Jefferson, A Bill for Proportioning Crimes and Punishments (1779), reprinted in The Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John Marshall 207–209 (C. Cullen & H. Johnson eds. 1977) (describing petition for commutation based in part on 5-month delay).
  63. 135 S. Ct. at 2764 (Breyer, J., dissenting) citing Habeas Corpus Reform, Hearings before the Senate Committee on the Judiciary, 100th Cong., 1st and 2d Sess., 35 (1989 and 1990).
  64. 135 S. Ct. at 2773 (Breyer, J., dissenting) citing E. Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America 145 (2013) ISBN 0393348962.
  65. 135 S. Ct. at 2773 (Breyer, J., dissenting) citing von Drehle, Bungled Executions, Backlogged Courts, and Three More Reasons the Modern Death Penalty Is a Failed Experiment, Time, June 8, 2015, p. 26.
  66. 135 S. Ct. at 2764 (Breyer, J., dissenting) citing Wilson, Support for Death Penalty Still High, But Down, Washington Post, GovBeat, June 5, 2014; see also ALI, Report of the Council to the Membership on the Matter of the Death Penalty 4 (Apr. 15, 2009) (withdrawing Model Penal Code section on capital punishment).
  67. 135 S. Ct. at 2775 (Breyer, J., dissenting) citing Oakford, "UN Vote Against Death Penalty Highlights Global Abolitionist Trend-and Leaves the U.S. Stranded", Vice News, Dec. 19, 2014,
  68. 135 S. Ct. at 2777-80 (Breyer, J., dissenting) citing Ford, "The Death Penalty's Last Stand", The Atlantic, Apr. 21, 2015)
  69. 135 S. Ct. at 2788 (Sotomayor, J., dissenting)
  70. 135 S. Ct. at 2784 (Sotomayor, J., dissenting) citing Hovinga, S; Stijnen, AM; Langemeijer, MW; Mandema, JW; van Bezooijen, CF; Danhof, M (1992). "Pharmacokinetic-EEG effect relationship of midazolam in aging BN/BiRij rats". Br J Pharmacol. 107: 171–7. doi:10.1111/j.1476-5381.1992.tb14482.x. PMC 1907602. PMID 1422570.; Reves, JG; Fragen, RJ; Vinik, HR; Greenblatt, DJ (March 1985). "Midazolam: pharmacology and uses". Anesthesiology. 62: 310–24. doi:10.1097/00000542-198503000-00017. PMID 3156545.; Saari, TI; Uusi-Oukari, M; Ahonen, J; Olkkola, KT (March 2011). "Enhancement of GABAergic activity: neuropharmacological effects of benzodiazepines and therapeutic use in anesthesiology". Pharmacol. Rev. 63: 243–67. doi:10.1124/pr.110.002717. PMID 21245208..
  71. 135 S. Ct. at 2797 (Sotomayor, J., dissenting)
  72. 135 S. Ct. at 2793 (Sotomayor, J., dissenting).
  73. 135 S. Ct. at 2796 (Sotomayor, J., dissenting) citing Deborah W. Denno, Lethal Injection Chaos Post-Baze, 102 Geo. L.J. 1331, 1335 (2014); Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 65–79 (2007).
  74. 135 S. Ct. at 2796 (Sotomayor, J., dissenting) citing A. Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty, App. A, p. 177 (2014) ISBN 9780804789165.
  75. 135 S. Ct. at 2796 (Sotomayor, J., dissenting) citing Stuart Banner, The Death Penalty 203 (2002) ISBN 9780674010833; Johnson, Double Murderer Executed by Firing Squad in Utah, N. Y. Times, June 19, 2010, p. A12; C. Brandon, The Electric Chair: An Unnatural American History 39 (1999) ISBN 0786444932.
  76. Segura, Liliana; Smith, Jordan (24 May 2016). "Oklahoma's Insane Rush to Execute". The Intercept. Retrieved 13 December 2016.

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