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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

When a Common Sedative Becomes an Execution Drug

TUCSON — When a chemist named Armin Walser helped invent a sedative more powerful than Valium more than 40 years ago, he thought his team’s concoction was meant to make people’s lives easier, not their deaths.

Yet decades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States.

“I didn’t make it for the purpose,” Dr. Walser, whose drug has been used for sedation during 20 lethal injections nationwide, said in an interview at his home here. “I am not a friend of the death penalty or execution.”

Midazolam’s path from Dr. Walser’s laboratory into use in at least six of the country’s execution chambers has been filled with secrecy, political pressure, scientific disputes and court challenges.

The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and, given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock.

Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by a paralytic drug.

A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there.

“The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.”

States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.”

The relatively recent emergence of midazolam at the center of far-reaching legal battles has startled Dr. Walser, who was working in New Jersey for Hoffmann-La Roche, a Swiss pharmaceutical company, when he helped to invent the drug in the 1970s. It was a water-soluble alternative to Valium, and, as Dr. Walser recounted in a company publication, the discovery “required the coincidence of several events and also a portion of luck.”

Midazolam was patented in 1979, a few years after it was synthesized, and evolved into a medical star. An anesthesiology textbook described midazolam, sometimes referred to as Versed, as “the most frequently used benzodiazepine in the elderly,” and in 2011 the World Health Organization added the drug to its Model List of Essential Medicines.

But court filings and depositions show that by the time of the W.H.O.’s decision, American corrections officials were more than a year into their consideration of midazolam for a new purpose: sedating condemned prisoners for execution. In 2009, Ohio adopted midazolam as part of its backup execution protocol.

It was a matter of years before midazolam went from being part of a backup procedure in a single state to a crucial drug in at least six, as prison systems increasingly struggled to buy the barbiturates they had long used to sedate prisoners for executions. In 2013, Florida added midazolam to its execution protocol and became the first state to carry out an execution involving the drug.

“The way executions have proceeded in the United States has been, in a sense, through the herd mentality: One state does something and it appears to work, and others hop on board,” said Robert Dunham, the executive director of the Death Penalty Information Center, a research group.

Most executions involving midazolam drew little sustained criticism, but problems emerged during some.

➤ Click here to read the full article

Source: The New York Times, Alan Blinder, March 13, 2017

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