An attorney for an Alabama death row inmate said in a filing Friday that the state's new death penalty protocol would cause "agony" and "excruciating pain" to a condemned inmate, due to the unreliability of one of the drugs used.
Last month, the Alabama Attorney General's office sought to set execution dates for nine individuals on the state's death row, saying in its motions that the Alabama Department of Corrections had developed a new death penalty protocol. Under the new procedure, the condemned would first be administered 500 milligrams of midazolam hydrochloride, a sedative; 600 milligrams of rocuronium bromide, a paralyzing drug and 240 milligram equivalents of potassium chloride, to stop the heart.
However, Suhana Han, an attorney for Thomas Arthur, a death row inmate convicted in 1982 of a murder-for-hire scheme, wrote in a filing to the Alabama Supreme Court Friday that recent botched executions where midazolam hydrochloride was used suggest the drug is "utterly unreliable" as a sedative.
"There is a high likelihood that midazolam will wear off before Mr. Arthur loses consciousness, such that Mr. Arthur will experience the excruciatingly painful effects of the second and third drugs," the filing said.
The Attorney General's office did not have an immediate comment on the filing Friday evening.
The protocol is similar to one carried out in Florida since last fall, and the Attorney General's office said in its filings that both the Florida Supreme Court and the U.S. 11th Circuit Court of Appeals had upheld the protocol. Midazolam hydrochloride has been present in varying doses in three botched executions this year, though its role in the complications that developed - including gasping and choking by the condemned men - is not entirely clear.
Arthur sued to stop the state's earlier death penalty protocol in 2012, arguing in federal court that the sedative used in that procedure - pentobarbitol - would take too long to render him unconscious before the fatal drugs were administered. The state said earlier this year it had run out of its supply of pentobarbitol, causing a halt to executions in Alabama; it is not clear how or where the state obtained the drugs in the new protocol.
Arthur's attorneys argued in their filing that midazolam has a "ceiling effect," meaning that a 500 mg dose would have no more of an effect than a smaller one. Oklahoma used 100 milligrams of the drug in executing Clayton Lockett last April; Lockett appeared to wake up after the fatal drugs were administered. Oklahoma officials now say a faulty IV hook-up was to blame.
The filing also argued that the drug could cause Arthur to suffer a heart attack due to his current medical condition.
"The State's new lethal injection protocol has not been examined by any court, and recent executions using midazolam have demonstrated that this drug is utterly unreliable as an anesthetic for purposes of Alabama's three-drug protocol," the filing said.
Arthur's attorneys, citing the pending federal litigation, said the court should rule the state's attempt to set an execution date as premature.
Alabama has used lethal injection as its primary method of execution since 2002. The state used sodium thiopental as its primary sedative until 2011, when manufacturer Hospira stopped making the drug in the United States. Most states with the death penalty have since struggled to find drugs that can be used to carry out executions.
Source: Montgomery Advertiser, October 4, 2014
