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Arkansas | Ruling rejects execution-drug challenge

A federal judge on Monday rejected the claim of attorneys for 17 death-row inmates that midazolam, the first drug in the state's three-drug execution protocol, violates the Eighth Amendment ban on cruel and unusual punishment.

U.S. District Judge Kristine Baker issued a 106-page order siding with the state a year after an eight-day non-jury trial she presided over in her Little Rock courtroom. The trial focused on the use of midazolam, the sedative that is the first of three drugs administered during lethal injections in Arkansas.

Citing expert testimony, attorneys for the inmates said the sedative is incapable, at least in some cases, of sedating a condemned person deeply enough to guard against the person experiencing extreme pain after the injection of the second drug, vecuronium bromide, a paralytic, and the third drug, potassium chloride, which stops the heart.

The inmates say the paralysis prevents the condemned from showing signs of the searing pain of the potassium chloride.

There are currently no executions scheduled in Arkansas, where 30 inmates were listed on death row Monday. The last executions were carried out in April 2017, when the state executed four men while trying to use its supply of midazolam before it expired at the end of that month. The state sought the executions of eight men, but court rulings intervened to allow the executions of just four: Ledell Lee, Jack Jones, Marcel Williams and Kenneth Williams.

The federal public defender's office, which led the effort to throw out the use of midazolam, declined to comment on Baker's ruling Monday. But state Attorney General Leslie Rutledge issued a news release saying: "As the Attorney General, I enforce the laws in the state and bring justice for families who have long been devastated at the hands of these murderers. Today's final judgment reaffirms the constitutionality of Arkansas's execution protocol."

Initially, the lawsuit was brought by 18 death-row inmates. However, Gov. Asa Hutchinson commuted the sentence of one of them, Jason McGehee, from death to life without parole on Nov. 14, 2017. Then 10 weeks ago, on March 23, U.S. District Judge Susan Webber Wright ordered Alvin Bernal Jackson's death sentence reduced to life without parole at the direction of the 8th Circuit, which said he was intellectually disabled and thus ineligible for the death penalty.

The state has appealed Wright's ruling to the 8th Circuit.

In her order signed Sunday and filed Monday, Baker noted that the inmates' lawsuit had been amended to also challenge the adequacy of consciousness checks and viewing policies during the April 2017 executions.

She agreed that state officials must allow two defense attorneys in the viewing area during executions and must allow attorneys to leave and return to seek intervention of a court, if necessary. Baker's ruling doesn't create new protocols but leaves in place an agreement that was set up during the 2017 executions. She denied requests from the inmates' attorneys for additional measures to allow them to better see and hear what goes on in the execution chamber.

Baker's order discussed the history of lethal injection in Arkansas, noting that it became the state's method of execution in 1983, after legislators phased out electrocution. She noted that the state's current method of execution allows for starting with either midazolam or a barbiturate, followed by the paralytic and the heart-stopping drug.

While some experts testified that they favored the use of a barbiturate instead, as it leads to deeper sedation, Arkansas' fallback method has become midazolam partly because alternatives, such as the barbiturate pentobarbital, are no longer available for use in executions.

Citing expert testimony at last year's trial, Baker said that "the science with respect to the study of Midazolam and its effects continue to evolve."

Baker noted that experts disagreed on whether or at what dosage midazolam has a "ceiling effect," when a drug reaches its maximum effect despite increasing doses. The state's protocol requires an initial injection of 500mg of the sedative, with a second dose if the prisoner appears to remain conscious after the first dose. She also noted that the American Society of Anesthesiologists recommends that benzodiazepines such as midazolam and diazepam shouldn't be used for general anesthesia.

Baker also discussed clinical techniques used in operating rooms to determine whether a midazolam patient is conscious, and how those techniques were applied in the execution chamber, according to testimony.

She said one particular witness, whose identity remains confidential and who testified privately, was the "designee" for the 2017 executions. That person, whom Baker identified as "Highly Confidential Witness," described "each step of the consciousness checks," including at what point they were conducted in relation to when the midazolam injection was administered and completed, and testified that they were carried out in the same manner for each of the executed men.

The designee communicated with the executioner, whose identity also remained confidential.

"At various points, the Designee was holding the hand of the condemned individual and watching the condemned individual intently from 18 to 24 inches away at most," Baker said. "When it began, each consciousness check involved brushing the eyelashes, giving verbal commands at varying volumes from a whisper to a normal voice, listening to breathing sounds, checking for pulse by placing fingers on the carotid artery and checking a pulse oximeter, pinching the ear lobe, pinching or squeezing the trapezius muscle, touching the eyeball, and then rubbing the sternum, in that order for each individual."

Baker said that according to the designee, the only changes in the pulse oximeter readings for each of the executed men started during the injection of the next two drugs. After all drugs were injected, the designee completed a second round of consciousness checks, used a stethoscope to check for a heartbeat and determined that the pulse oximeter reading was zero, Baker said, citing the witness's testimony.

Baker also went through the testimony of various witnesses of executions, some of whom witnessed one or more in Arkansas in 2017 and others who witnessed executions elsewhere, with and without midazolam.

The judge cited testimony and midazolam's Food and Drug Administration-approved package insert identifying known side effects of midazolam, including involuntary movements and muscle tremors, and said the drug can cause a patient to stop breathing or to experience partial airway obstruction, "which can lead to feelings of air hunger and suffocation" and cause the person to try harder to get air.

She noted that several witnesses at last year's trial described seeing inmate Kenneth Williams moving his head or upper body, convulsing, heaving, choking, coughing or moaning -- movements consistent with known side effects of midazolam. She also said the witnesses to the same executions "are not all in agreement as to what they observed."

Baker also reviewed the results of autopsies of the four men executed in 2017, noting that in Kenneth Williams' case, an out-of-state forensic pathologist of 25 years opined that "Williams likely succumbed to the combined respiratory depressant effects" of the drug, in addition to the effects of the other two drugs.

The plaintiffs didn't prove that the use of midazolam "entails a substantial risk of severe pain" when it is used as the first drug in the three-drug protocol, she said.

Source: nwaonline.com, Linda Satter, June 2, 2020


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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