This Day in Supreme Court History: October 26, 2010

On this day in 2010, the Supreme Court vacated an emergency restraining order preventing the execution of Jeffrey Landrigan. Arizona executed him that day.

Landrigan was convicted of first degree felony murder in 1990 and sentenced to death. After years of unsuccessful appeals, on September 15, 2010, the Arizona Supreme Court issued a warrant of execution and set the execution date for October 26, 2010.

Landrigan was sentenced to die by lethal injection, which would be administered in accordance with the three-drug lethal injection method that the U.S. Supreme Court in Baze v. Rees (2008) had deemed constitutionally acceptable under the 8th Amendment. The Court in Baze held that the three-drug protocol did “not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.”

Landrigan’s last-minute appeal was based on questions concerning the first drug of the Baze-approved three drug protocol, sodium thiopental, which was supposed to induce unconsciousness and prevent pain during the rest of the execution. On October 21, 2010, Landrigan’s lawyer filed a civil rights complaint demanding information about the sourcing of the drug. Anti-death penalty activists had pressured drug manufacturers to stop producing sodium thiopental, resulting in a nationwide shortage of the anesthetic. In light of the shortage, Landrigan’s counsel sought to compel Arizona to identify the source and nature of the drug they intended to use on Landrigan. Arizona revealed that it had acquired the sodium thiopental from a foreign manufacturer and the particular drug had not been approved by the Food and Drug Administration. A district court in Arizona granted the temporary restraining order on October 25; the 9th Circuit affirmed the order the following day.

In its October 26 order vacating the temporary restraining order, the Court explained: “There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm…But speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering’.” Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application to vacate the temporary restraining order. Landrigan was executed hours after the Court’s order.

The Court continued to struggle with the consequences of the drug shortages at issue in Landrigan’s appeals. After anti-death penalty activists succeeded in getting sodium thiopental off the market, states turned to different drugs as part of their three-drug protocol for executions. This brought more legal challenges and another Supreme Court case. In Glossip v. Gross (2015), a  five-justice majority upheld a new three-drug protocol. The most discussed aspect of the Court’s Glossip ruling was not the holding, however, but the separate dissenting opinion of Justice Breyer in which he questioned whether the death penalty itself violates the 8th Amendment.

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