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271 Eighth Amendment — Death Penalty — Preliminary Injunctions — Glossip V. Gross in 2008, in Baze V. Rees,1 the Supreme

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271 Eighth Amendment — Death Penalty — Preliminary Injunctions — Glossip V. Gross in 2008, in Baze V. Rees,1 the Supreme Eighth Amendment — Death Penalty — Preliminary Injunctions — Glossip v. Gross In 2008, in Baze v. Rees,1 the Supreme Court considered an Eighth Amendment challenge to the use of a particular three-drug lethal injec- tion protocol. A three-Justice plurality opinion announced that, to pre- vail on a § 19832 method-of-execution claim, a petitioner must establish that a state’s proposed method presents an “objectively intolerable risk of harm.”3 Last Term, in Glossip v. Gross,4 the Court revisited Baze in the context of Oklahoma’s adoption of the sedative midazolam in its protocol as a replacement for a now-unavailable part of the drug cock- tail approved in Baze. The Court held that the death row inmate– petitioners were not entitled to a preliminary injunction against Okla- homa’s lethal injection protocol because they had failed to establish a likelihood of success on the merits of their claim that the use of mid- azolam violates the Eighth Amendment.5 In resolving Glossip based purely on the petitioners’ failure to satisfy this one factor — one of four that some federal courts generally consider when ruling on preliminary injunctions — the Court demonstrated a lack of sympathy for more re- laxed, sliding-scale preliminary injunction standards. After Glossip, lower courts may have difficulty justifying a flexible approach to the success-on-the-merits prong of the preliminary injunction test. In 1977, Oklahoma legislators seeking a more humane way of carry- ing out death sentences adopted a three-drug lethal injection protocol: a large dose of the general anesthetic sodium thiopental, followed by a paralytic agent, and then by potassium chloride, which induces cardiac arrest.6 After the Court’s decision in Baze, some drug companies began refusing to supply sodium thiopental for executions.7 Oklahoma sought an alternative in order to continue carrying out the death penalty,8 and ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 553 U.S. 35 (2008). 2 Section 1983 authorizes suit against persons who, acting under color of state law, deprive any U.S. citizen of rights secured by the Constitution. 42 U.S.C. § 1983 (2012). 3 Baze, 553 U.S. at 50 (plurality opinion) (quoting Farmer v. Brennan, 511 U.S. 825, 846 (1994)). 4 135 S. Ct. 2726 (2015). 5 Id. at 2736–39. 6 Denise Grady, Three-Drug Protocol Persists for Lethal Injections, Despite Ease of Using One, N.Y. TIMES (May 1, 2014), http://www.nytimes.com/2014/05/02/science/three-drug-protocol -persists-for-lethal-injections-despite-ease-of-using-one.html. 7 After Baze, anti–death penalty advocates worked to make sodium thiopental unavailable for executions. See, e.g., Matt Ford, Can Europe End the Death Penalty in America?, THE ATLANTIC (Feb. 18, 2014), http://www.theatlantic.com/international/archive/2014/02/can-europe -end-the-death-penalty-in-america/283790 [http://perma.cc/T9HD-XA8D]. 8 The Baze plurality considered the use of an effective sedative integral in upholding the con- stitutionality of the challenged protocol. See Baze, 553 U.S. at 53 (plurality opinion) (“It is uncon- tested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation . and pain . .”). 271 272 HARVARD LAW REVIEW [Vol. 129:271 turned to midazolam, a move some derided as part of the “ongoing ex- periment in executing people with untested drug combinations.”9 Oklahoma first utilized midazolam on April 29, 2014, as part of the lethal injection protocol used to kill Clayton Lockett.10 During the ex- ecution, Lockett began to kick his right leg, breathe heavily, and try to speak — all signs that he had not been properly sedated.11 The execu- tion team determined that the IV had infiltrated Lockett’s tissue and halted the execution, but Lockett was pronounced dead ten minutes later.12 Oklahoma stayed all pending executions while it investigated Lockett’s.13 Adopting one of the four alternative drug combinations offered in the post-investigation report, Oklahoma planned to adminis- ter 500 milligrams of midazolam followed by the paralytic agent and potassium chloride in its next executions.14 On June 25, 2014, twenty-one Oklahoma inmates sentenced to death filed a § 1983 complaint challenging the use of midazolam in Oklahoma’s execution protocol as violative of the Eighth Amend- ment.15 They argued that the “inherent characteristics” of the drug — namely an alleged ceiling effect, a level beyond which increasing the dosage would not increase the drug’s effectiveness, and a risk of “par- adoxical reactions,” including agitation and involuntary movements — rendered the drug “unsuitable” as the sole anesthetic.16 They contend- ed that the drug would pose an unconstitutionally “substantial risk” that an inmate would experience “severe pain, needless suffering, and a lingering death,”17 and cited Lockett’s execution as proof.18 In November 2014, four of the plaintiffs — Charles Warner, Benjamin Cole, John Grant, and Richard Glossip19 — sought a preliminary in- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 9 Stephanie Mencimer, Does This Secret Drug Cocktail Work to Execute People? Oklahoma Will Find Out Tonight., MOTHER JONES (Apr. 29, 2014, 11:11 AM), h t t p : / / w w w . m o t h e r j o n e s . c o m / m o j o / 2 0 1 4 / 0 4 / d o u b l e - e x e c u t i o n - t o n i g h t - o k - u s i n g - s e c r e t - e x p e r i m e n t a l - d r u g - p r o t o c o l [http://perma.cc/24D6-EBYA]. 10 See Jeffrey E. Stern, The Cruel and Unusual Execution of Clayton Lockett, THE ATLANTIC (June 2015), h t t p : / / w w w . t h e a t l a n t i c . c o m / m a g a z i n e / a r c h i v e / 2 0 1 5 / 0 6 / e x e c u t i o n - c l a y t o n - l o c k e t t / 3 9 2 0 6 9 [http://perma.cc/BQ22-WA9T]. 11 See id. Lockett allegedly said “[t]his shit is fucking with my mind,” and “[t]he drugs aren’t working.” See Glossip, 135 S. Ct. at 2782 (Sotomayor, J., dissenting) (alterations in original). 12 Glossip, 135 S. Ct. at 2734 (majority opinion). 13 Id. at 2782 (Sotomayor, J., dissenting). 14 Id. at 2734–35 (majority opinion). Despite these recommendations, an autopsy found that the 100 grams of midazolam that had been administered to Lockett would have likely been enough to render the average person unconscious. Id. at 2782 (Sotomayor, J., dissenting). 15 Complaint at 9–12, Warner v. Gross, No. Civ-14-665-C (W.D. Okla. June 25, 2014). 16 Warner v. Gross, 776 F.3d 721, 726–27 (10th Cir. 2015). 17 Id. (quoting Complaint, supra note 15, at 8). 18 Id. at 727. 19 All four had been convicted of murder. See Glossip, 135 S. Ct. at 2735. The Oklahoma Court of Criminal Appeals affirmed each conviction and death sentence. Id. 2015] THE SUPREME COURT — LEADING CASES 273 junction barring the defendants from executing them under the new protocol until a court could rule on the merits of their claims.20 In December 2014, Judge Friot of the U.S. District Court for the Western District of Oklahoma held a three-day evidentiary hearing on the preliminary injunction motion.21 After the hearing, Judge Friot orally denied the motion.22 First, he laid out the standard for entry of a preliminary injunction: “[P]laintiffs must demonstrate, first, that they will likely succeed on the merits of their claim; second, that without pre- liminary relief they will suffer irreparable harm; third, that the balance of equities tips in their favor; and fourth, that entry of an injunction is in the public interest.”23 He also noted the Tenth Circuit’s relaxed pre- liminary injunction standard: when irreparable harm, the balancing of the equities, and public interest considerations all tip in the movant’s favor, “it will ordinarily be enough that the plaintiff has raised ques- tions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation.”24 Judge Friot concluded that the petitioners were not entitled to relief under either standard as they had “failed to establish any of the prerequisites.”25 Writing for a unanimous Tenth Circuit panel, Chief Judge Briscoe26 found that the district court’s factual findings were not clear- ly erroneous and affirmed the district court’s order denying the peti- tioners’ motion for a preliminary injunction.27 The plaintiffs peti- tioned for certiorari and applied for stays of their executions.28 The Court denied Warner’s application,29 and he was executed on January ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 20 Warner, 776 F. 3d at 727. 21 Glossip, 135 S. Ct. at 2735–36; see Transcript of Court’s Ruling at 4–5, Warner v. Gross, No. Civ-14-665-F (W.D. Okla. Dec. 22, 2014) [hereinafter Transcript]. 22 Transcript, supra note 21, at 80; see also Order Denying Motion for Preliminary Injunction, Warner v. Gross, No. Civ-14-0665-F (W.D. Okla. Dec. 22, 2014) [hereinafter Order]. Judge Friot also rejected a challenge under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to the testimony of an expert witness for the state. Glossip, 135 S. Ct. at 2736. 23 Transcript, supra note 21, at 50. 24 Id. at 51 (quoting Kikumura v.
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