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68 Stan. L. Rev. Online 1 (2015-2016)

handle is hein.journals/slro68 and id is 1 raw text is: 68 STAN. L. REV. ONLINE 1 May 4, 2015 SAFE AND EFFECTIVE FOR HUMAN EXECUTIONS? GLOSSIP V. GROSS AND THE EIGHTH AMENDMENT BAR AGAINST OFF-LABEL DRUG LETHAL INJECTION Rose Carmen Goldberg* INTRODUCTION In June1 the U.S. Supreme Court will decide Glossip v. Gross, a challenge to Oklahoma's lethal-injection protocol brought by three death row inmates.2 The inmates argue that the protocol's first drug, midazolam, violates the Eighth Amendment's prohibition against cruel and unusual punishment because it does not reliably induce unconsciousness. Midazolam's inadequacy, they claim, could result in severe pain during the protocol's death-inducing phase.3 Most relevantly midazolam is not FDA approved as a stand-alone anesthetic,4 meaning its use in lethal injections is off-label. I argue that off-label drug use in lethal injections raises significant Eighth Amendment questions and that the Court should invalidate the protocol at issue in Glossip because of its lack of FDA approval. Although courts are increasingly recognizing the constitutional * J.D. Candidate, Yale Law School, 2015; M.P.A., Columbia University, 2008. Many thanks to Dr. Aaron Kesselheim of Harvard Medical School/Brigham and Women's Hospital for his invaluable guidance and to the editors of the Stanford Law Review for their excellent editorial support. 1. See Description of Death Penalty Cases Heard by the Supreme Court in the 2014- 2015 Tem, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/united-states -supreme-court-decisions-2014-2015-tem (last visited Mar. 17, 2015) (Glossip will be argued in April and likely decided by the end of June.). 2. Glossip v. Gross, No. 14-7955 (U.S. argued Apr. 29, 2015). 3. Warner v. Gross, 776 F.3d 721, 727 (10th Cir. 2015) (quoting Record, Vol. 1, at 963) (internal quotation mark omitted), cert. granted, 135 S. Ct. 1173 (2015). 4. See Roche Pharm., Package Insert for Versed (dated 1999), available at http://www.fda.gov/ohrms/dockets/dailys/01/MarO1/032101/cpOOOO- exhibit 02.pdf (listing midazolam's FDA-approved use as induction of general anesthesia, before administration of other anesthetic agents). Midazolam, trade name Versed, is the only anesthetic in the lethal injection protocol in Glossip.

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