Zagorski v. Parker
139 S. Ct. 11
SCOTUS2018Background
- Tennessee used pentobarbital (Protocol A) for executions but in Jan 2018 adopted Protocol B: midazolam, vecuronium bromide, potassium chloride.
- Petitioners (including Edmund Zagorski) challenged Protocol B under the Eighth Amendment, arguing pentobarbital was a known and available less-risky alternative.
- Tennessee eliminated Protocol A on the eve of trial and officials testified they had searched for pentobarbital but were noncommittal about its availability; procurement details were shielded by state secrecy rules.
- Trial court and Tennessee Supreme Court found petitioners failed to prove pentobarbital was available and upheld Protocol B; they relied on credibility findings of senior TDOC officials.
- Justice Sotomayor (joined by Justice Breyer) dissented from the denial of a stay and certiorari, arguing the Glossip requirement that prisoners identify a “known and available alternative” is being applied unfairly where secrecy prevents meaningful proof and where the State itself had recently used/held out pentobarbital.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Protocol B (midazolam-based) violates the Eighth Amendment due to risk of severe pain | Zagorski: midazolam may not render unconsciousness; petitioners identified pentobarbital as available, less risky alternative | State: midazolam-based protocol is constitutional; petitioners failed to prove pentobarbital was available | Supreme Court denied stay and certiorari; lower courts ruled against petitioners on availability showing |
| What satisfies Glossip’s “known and available alternative” requirement | Zagorski: The State’s prior use/retention of pentobarbital and evidence of suppliers contacted show availability; secrecy rules prevented direct proof | State: petitioners failed to produce direct proof of sufficient pentobarbital supplies; procurement efforts showed unavailability | Lower courts accepted State credibility findings; Sotomayor would grant review to clarify availability standard |
| Whether secrecy protections that block discovery undermine petitioners’ ability to prove availability | Zagorski: Tennessee’s secrecy rules prevented depositions and disclosure of vendors, making it impossible to rebut State’s assertions | State: secrecy and privilege over procurement personnel are lawful; senior officials’ testimony suffices | Lower courts relied on testimony of senior officials; Sotomayor criticized the Kafkaesque barrier and would review |
| Whether the Supreme Court should stay execution and grant certiorari | Zagorski: stay warranted to address constitutional question and procedural barriers to proving alternatives | State: urgent finality and trial-court rulings support denying stay; no clear federal error shown | The Supreme Court denied the application for stay and the petition for certiorari; Sotomayor (with Breyer) dissented advocating review |
Key Cases Cited
- Glossip v. Gross, 576 U.S. 863 (2015) (establishes standard that condemned prisoners must identify a known and available alternative method to prevail on an Eighth Amendment method-of-execution challenge)