I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to the latest of our We the People constitutional podcasts.

The National Constitution Center is the only institution in America chartered by Congress to

disseminate information about the US Constitution on a nonpartisan basis.

And today we discuss a case involving the constitutionality of capital punishment.

This was the first capital punishment case

that the court has heard since 2008,

and it's called Glossop versus Gross.

The question is whether Oklahoma's protocol of lethal injection

violates the Eighth Amendment to the Constitution which prohibits cruel and

unusual punishment. Joining me to discuss this important case are two leading scholars and advocates.

David Rivkin is partner at Baker-Hostatler.

He's also a member of the firm's litigation, international and environmental teams, and co-leader of the firm's national appellate practice, he co-wrote the brief for the state of Oklahoma in the Glossip case.

Ellen Kreitzburg is professor of law at Santa Clara University.

She also created and directs the death penalty college a residential training program held every August at Santa Clara to train lawyers assigned to the defense of a capital case.

Welcome David and Ellen and David I'll start with you. In the oral arguments before the Supreme Court in the

Glossop case, what was the central constitutional

claim that the challenges were making about the unconstitutionality of Oklahoma's protocol and what was the state's response?

Well, pleasure to view with you.

To put it, crisply, the challenges were claiming that the Oklahoma's protocol in particular the first drug

being administered, which is called Nedazolam, did not have a sufficient effect in rendering the recipients insensate to pain and therefore given

the fact that somebody denies that the second and the third drugs that ones really cause death

are quite painful, created a substantial risk or in the words of the Supreme Court an objectively intolerable risk of harm that was sufficient

...