Medical experts say excruciating pain is certain for the condemned inmate under Tennessee's lethal injection protocol
"There's no debate about midazolam at all."
That was Dr. David Lubarsky's testimony in Davidson County Chancery Court last week during the trial over Tennessee's lethal injection protocol. With Billy Ray Irick scheduled to be put to death on Aug. 9 for the 1985 rape and murder of a 7-year-old girl named Paula Dyer - and with the state determined to execute more death row prisoners as soon as it can - 33 inmates are challenging the new three-drug protocol that would be used to kill them.
500 milligrams of midazolam, to sedate the prisoner. 100 milligrams of vecuronium bromide, to paralyze the prisoner. 240 milligrams of potassium chloride, to stop the heart.
The trial concluded Tuesday afternoon with impassioned closing arguments from both sides, and a ruling is expected by the end of this week.
The inmates' lawsuit contended that the new protocol, adopted by the state in January, amounts to cruel and unusual punishment, particularly because of midazolam, the first drug in the cocktail. They cited warnings from one of the state's own consultants who said that because midazolam "does not elicit strong analgesic effects," a person being executed "may be able to feel pain from the administration of the 2nd and 3rd drugs." And according to the experts the inmates' attorneys brought to court - which included Lubarsky, a leading anesthesiologist, and Dr. David J. Greenblatt, whose research on midazolam is considered the fundamental and crucial literature on the drug - that is understating it.
"Midazolam is not a general anesthetic," Lubarsky testified. "There is no argument about that."
In surgical settings, he said, he would never use the drug on its own, because it's just not strong enough to render a patient insensate - that is, unaware and unable to experience physical sensations. Lubarsky said anesthesiologists will often give patients midazolam ahead of surgery to calm their nerves. They refer to it as "a martini in a syringe.' But it is simply not debatable, he said, whether people respond to "noxious stimuli" when they have only been given midazolam. If you give someone midazolam, in other words, they are going to feel what you do next - particularly if what you do next is inject caustic chemicals into their veins.
Attorneys representing the state seemed hardly concerned with disputing this point. They called experts who cited Drugs.com to dismiss concerns about midazolam. One of their experts, Nashville's chief medical examiner Dr. Feng Li, agreed that most benzodiazepines are not reliable anesthetics but said midazolam was an exception to that rule. He could not provide a source for that claim.
In his closing argument, Deputy Attorney General Scott Southerland spent little time on the efficacy of midazolam because, he said, it was almost entirely irrelevant. What mattered when it came to the legal challenge against Tennessee's lethal injection protocol, he argued, was that the inmates had failed to meet the legal burden established by the United States Supreme Court in Glossip v. Gross - that death row prisoners challenging an execution method must provide a feasible and available alternative. Federal Public Defender Kelley Henry, the lead attorney representing the condemned inmates, argued that the state could have obtained pentobarbital, but Southerland dismissed that claim as nonsensical. Tennessee's previous lethal injection protocol used pentobarbital, and was upheld as constitutional. If the state could have obtained that drug and avoid the legal challenge altogether, he said, they would have done so.
"A certain amount of pain can be justified in eye-for-an-eye terms. The Constitution does not require that an inmate's execution be peaceful or painless."
Moreover, Southerland cited the high court's decision in Glossip that the Oklahoma inmates in that case were unlikely to succeed in their claim that midazolam's inclusion in the state's lethal injection protocol made the protocol unconstitutional. Southerland pointed to that decision to argue against the notion that a multi-drug protocol beginning with midazolam, like Tennessee's, would amount to torture. It's not cruel and unusual, he said, and did not meet the threshold of subjecting an inmate to pain for the purpose of pain. (Southerland did suggest that a certain amount of pain could be justified in eye-for-an-eye terms. The Constitution does not require that an inmate's execution be peaceful or painless, he said. "It certainly wasn't pretty or peaceful for the victims of many of the 33 plaintiffs.")
The law may well be on his side. After all, as Southerland argued in his opening statement at the beginning of the trial, so long as the death penalty is constitutional in the United States, then there must be some constitutional way to carry it out.
If Chancellor Ellen Hobbs Lyle comes down on the state's side of the argument, then it is very likely that Irick will indeed be executed in just more than 2 weeks by way of lethal injection - starting with midazolam. And the trial will serve as a basis on which to predict just what he will experience.
The efficacy of midazolam was indeed at the heart of the Glossip case and, as Lubarsky testified, there is overwhelming agreement among experts that it cannot spare an inmate from feeling the effects of the 2nd 2 drugs in a 3-drug protocol. An amicus brief submitted in that case by 16 professors of pharmacology affirmed that as fact.
Seven states have used midazolam as the 1st drug in a 3-drug lethal injection cocktail, and each one has had an execution in which an inmate showed signs of awareness after a consciousness check that was supposed to confirm they were not. The Tennessee inmates' case included testimony from people who witnessed executions in each of those 7 states. 1 witness described a man on the gurney in Alabama grimacing and raising his arm long after receiving an injection of midazolam; another described an inmate in Arkansas writhing and making choking sounds before he died. The inmates' attorneys also cited autopsies showing that 21 prisoners whose executions began with midazolam experienced pulmonary edema, essentially drowning in their own fluids.
Lubarsky testified last week that he has used the paralytic vecuronium bromide in medical settings. Giving it to someone who is not under general anesthesia, he said, would be "as if you're basically locked in a box and someone has covered your mouth, and your lungs and your brain are screaming." He likened it to being buried alive.
He's also used potassium chloride, the chemical meant to stop an inmate's heart. In a clinical setting, he said, even a small dose administered too quickly will cause a patient to scream out in pain. It's a highly caustic chemical, he said, and to be given the amount called for in Tennessee's lethal injection protocol would be like being burned alive.
In his closing argument, Southerland dismissed such testimony, suggesting it was hyperbolic, reiterating that the Constitution does not require a painless execution and arguing that the drugs wouldn't take all that long to take effect even if they did cause pain.
The vecuronium bromide, he said, would stop an inmate's breathing in 1 to 2 minutes. The potassium chloride - the caustic drug Lubarsky testified would make someone feel as if they were being burned alive from the inside - would stop the heart in 45 seconds to a minute.
Billy Ray Irick, a man with a history of severe mental illness, may well experience all that horror described by doctors and medical experts and execution witnesses, the state seemed to concede. But it won't last more than a few minutes, unless something goes wrong - as it has in numerous other executions around the country.
Still, Southerland said: "This does not amount to torture. It is not cruel and unusual punishment."
Source: Nashville Scene, Steven Hale, July 25, 2018
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