Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
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Alabama: The weak sedative behind botched executions

From alleged botched executions in Oklahoma and Alabama to a split decision before the U.S. Supreme Court, a single sedative -- just 1 of the ingredients in a lethal cocktail -- defines much of the recent uncertainty around the American death penalty.

Midazolam was first introduced 4 decades ago. It's a common sedative used before minor dental or medical procedures, such as colonoscopies.

It's popular and inexpensive - $95 per 10mg wholesale. The World Health Organization lists it as one of the essential drugs needed for a basic health-care system.

But in the past four years midazolam also has been used in large doses - 100 mg to 500mg - for the darker and unhealthy purpose. Prison systems in Alabama and at least 5 other states have used it to sedate death row inmates to mask the pain of the drugs they are then given to stop their hearts and breathing.

Inmates in Alabama and other states say in lawsuits that midazolam's use amounts to cruel and unusual punishment. They say the drug isn't strong enough to block the burning pain caused by the other drugs. It has resulted in a half-dozen botched executions in Alabama and elsewhere, they claim.

The U.S. Supreme Court in 2015, however, in a 5-4 decision declared midazolam's use in an Oklahoma case wasn't cruel and unusual punishment. Justice Sonia Sotomayor in a dissent wasn't convinced midazolam prevents pain and likened the risk to being "burned at the stake."

Despite the nation's top court saying it is okay for prisons to use midazolam, three states have now abandoned its use in recent months. Alabama isn't among them despite lawyers for two inmates who were executed last year with midazolam claiming those executions were botched.

The Alabama Attorney General's Office is now awaiting a decision by the Alabama Supreme Court to set an execution date for Robert Melson - the man convicted in the 1994 triple slayings of employees at a Popeye's restaurant in Gadsden. Melson's attorneys filed a motion to the Alabama Supreme Court on Feb. 8 urging them not to set any execution dates yet until the question of the constitutionality of the method of execution with the use of midazolam is resolved, particularly after the Dec. 8 execution of Ronald Bert Smith was "badly botched."

The Attorney General's Office declined to comment for this story.

Prison systems in Alabama and other states began turning towards midazolam as an alternative to sedate inmates after drug manufacturers of sodium thiopental and pentobarbital began cutting off supplies because they didn't want their drugs associated with executions.

Alabama was caught by the U.S. Drug Enforcement Administration trying to bring in black market supplies, according to previous reports. The Alabama Department of Corrections also had no luck after contacting four other states to see if they could share their supplies, and also a few dozen pharmacies to see if they would compound pentobarbital.

So in 2014 Alabama announced it would substitute midazolam into its lethal injection cocktail.

What is midazolam?

"It is a class of sedative hypnotics known as benzodiazepine, the most famous of which is valium. ... It's (valium is) a close cousin," said David A. Lubarsky, chair of the Department of Anesthesiology, Perioperative Medicine and Pain Management at the University of Miami.

What is midazolam designed to do?

"It is intended to relieve anxiety and when used as part of an anesthetic to reduce the requirement of other drugs. But it is not indicated as a sole drug for an anesthetic state," Lubarsky said.

It can be used as a sedative for minor medical procedures but not for surgery or an execution, Lubarsky said.

What won't midazolam do?

"You can knock someone out you just can't do anything to them ... The thing with midazolam it does not depress your sensations sufficiently to allow you to do surgery," Lubarsky said.

"If there's movement the inmate's not asleep, or not sufficiently asleep," Lubarsky said. "Nobody moves if they are properly anesthetized with midazolam or any drug," he said.

Even during procedures such as colonoscopies midazolam is used in combination with another drug to knock the patients out, Lubarsky said.

Gasping for breath

In several executions over the past 4 years around the nation, witnesses have seen inmates struggle on the gurneys after being injected with midazolam and before being given the other drugs.

In the Dec. 8 execution in Alabama the inmate, Ronald Bert Smith, moved around for 13 minutes, appearing to gasp for breath, snort, and move his arms. A correctional officer performed two unconscious tests before the other lethal drugs were administered. Prison officials said the execution was conducted according to its protocol. It's unclear whether Smith was given more than the initial dose of 500 mg of midazolam during his struggle.

One of Smith's lawyers later called it a "botched" execution.

An awakening

Nobody moves if they are properly anesthetized with midazolam or any drug," Dr. David Lubarsky

The definition of being anesthetized is being insensate, unconscious, and immobile, said Lubarsky, who has testified in inmates' midazolam lawsuits around the country.

An inmate can get to sleep with midazolam, Lubarsky said. But a very high urgent tone, adrenaline surge, or pain can produce an awakening, he said.

"You just won't stay asleep in the face of a painful stimulus, which is why it (midazolam) is not indicated as a single drug for anesthesia because it doesn't work," Lubarsky said.

Lubarsky noted the July 23, 2014 execution of inmate Joseph Wood in Arizona that took nearly two hours. Wood was given a total of 760 grams of midazolam combined with narcotics on top of that.

"All these drugs that we give are balanced against the condition of the day," Lubarsky said. "Meaning if someone is hyper acute and hyperaware and has their adrenaline going because they are about to die they don't succumb to these drugs that are not complete anesthetics."

Not enough on its own

Midazolam has no place for use in executions, Lubarsky said. "You could concoct some regimen using midazolam that would be okay but only as part of a regimen and not as a sole drug," he said.

Before midazolam most states used pentobarbital or sodium thiopental as the sedative, which provide a deeper level of anesthesia, Lubarsky said. The problem with that drug was that it didn't last long enough to get an execution, he said.

After manufacturers began refusing to provide sodium thiopental and other drugs for executions, prisons turned to midazolam, which lasts a little longer than sodium thiopental but doesn't provide a level of anesthesia sufficiently deep at any point in time, he said.

"So it's complicated," Lubarsky said. "State correctional facilities are trying to simplify what it takes anesthesiologists years to learn and to execute flawlessly."

Paradoxical affect

Alabama inmates also have suggested that they also could have a "paradoxical" reaction to midazolam.

Lubarsky explained that a paradoxical reaction is where midazolam produces in the patient the opposite of its intended effect. Instead of sedation the person becomes excited, hyperactive and even combative, he said.

Doctors don't fully understand why that occurs, but it occurs with between 1 to 11 % of people taking midazolam, Lubarsky said. It depends on personal characteristics, particularly those with sociopathic and violent tendencies, he said.

"I image imagine people who are being sentenced to death have all those characteristics," Lubarsky said.

Lubarsky said he is not a "die-hard" opponent to executions. But he said it should be done right. "We're not doing it right and it's important that we're better than the people we're trying to execute."

Move away from midazolam?

Alabama is among a half dozen states that have used midazolam in executions - either in combination with 2 or 3 other drugs, according to the Death Penalty Information Center. The other states are Florida, Oklahoma, Ohio, Virginia and Arizona.

But in the past few months 3 of those states - Arizona, Ohio and Florida - have abandoned or are considering abandoning midazolam's use in executions.

In court actions in the past 3 months Ohio and Arizona have moved away from the use of midazolam and it appears Florida also is looking at a replacement for the drug. (what are the replacement options?)

A federal magistrate judge on Jan. 26 declared the use of a 3-drug cocktail - including midazolam - Ohio planned to use for executions is unconstitutional, according to Cleveland.com. "The Court concludes that use of midazolam as the 1st drug in Ohio's present 3-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," the judge wrote.

Arizona in December became the 1st to move away from the use of midazolam. In an agreement filed in December in an on-going federal lawsuit by a group of Arizona death row inmates the Arizona Department of Corrections agreed that it "will never again use midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection execution."

Arizona's move away from midazolam began last summer when the state said it could no longer get a supply of the drug and suggested the prisoners' lawsuit was now moot. But attorneys for the prisoners, however, questioned what would happen if Arizona later obtained a supply of that drug and worked for a permanent agreement.

In December the Orlando Sentinel reported that records showed that Florida no longer has a supply of midazolam hydrochloride. Instead, the state has been purchasing the hypnotic drug etomidate as a replacement.

Alabama, however, has shown no sign that it plans to back off its current protocol. State prison officials have denied that either of Alabama's 2 executions since the new lethal injection cocktail was put into place were botched. They say both went according to protocol and both inmates did not respond to consciousness tests after midazolam was administered, but before the other drugs were given.

Courts so far have denied the Alabama prisoners' midazolam claims. Some of the lawsuits also have been dismissed because judges ruled the Alabama prisoners did not suggest a less painful form of execution available to the state - a requirement when contesting methods of execution. The judges have rejected inmates' suggestions of firing squad, hanging and gas, saying those are not available under Alabama law.

Attorneys for death row inmate Robert Melson who may be next up on the gurney, however, say no executions should be allowed until the lawsuits challenging use of midazolam are settled.

"There are serious constitutional issues surrounding the method the State intends to use to carry out Mr. Melson's death sentence. Given the events of Ronald Smith's execution, it is premature to set an execution date for Mr. Melson when questions about the method used to carry out that sentence have not yet been resolved."

Source: al.com, Kent Faulk, February 19, 2017

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