A legal battle in Oklahoma over whether prisoners feel severe pain after being given the sedative, midazolam, will determine whether its use is constitutional.
The status of executions across the country has been in turmoil for more than a decade, ever since pharmaceutical companies began halting their delivery of the most widely used drugs for executions. State prison systems were left to create cocktails of the drugs they could still get their hands on, often relying on one sedative in particular, midazolam, to start the execution process.
But the lethal new formulations have led to legal challenges across the country, with death row prisoners and their lawyers arguing that the sedative now in use in about a half-dozen states is ineffective at its primary purpose: keeping prisoners from feeling pain as they die.
The first full trial on the challenges to midazolam played out this past week in Oklahoma, where a prisoner vomited and shook for several minutes after he was injected with the sedative during an October execution. In the case before Judge Stephen P. Friot of the U.S. District Court in Oklahoma City, a group of prisoners on death row argued that the mix of drugs that awaits them in that state has the potential to cause so much pain as to be “constitutionally intolerable.”
The U.S. Supreme Court allowed the use of midazolam in a 2015 ruling in the same Oklahoma case, but the current trial has allowed for additional expert testimony and presentations of detailed research about the real-world use of the drug in execution chambers.
The case, one of several legal challenges to execution drug protocols filed across the country, could have broad implications for the 27 states with capital punishment, several of which use midazolam.
The governors of three states have issued moratoriums on the death penalty, and only 14 states where capital punishment is currently legal have carried out an execution in the last decade, according to the Death Penalty Information Center. The federal government executed 13 people under former President Donald Trump, the first time it carried out executions in 17 years, but the Biden administration has since reintroduced a moratorium.
With a week full of excruciatingly detailed testimony over how the human body may react to the drugs used in Oklahoma, the case is an example of how the battle over the death penalty has shifted from the legality of capital punishment to increasingly nuanced debates over how it is carried out. The courts have repeatedly upheld the constitutionality of many methods of execution, yet states have increasingly been unable to carry them out, as pressure from regulators, medical associations and groups that oppose the death penalty have made it harder to obtain the lethal drugs.
“This is the biggest issue in the realm of capital punishment: how we do executions,” said Maria Kolar, an assistant professor at the Oklahoma City University School of Law who studies the death penalty.
“We wouldn’t just go drown someone or burn someone at the stake,” Kolar said. “But if midazolam is not capable of maintaining that insensate state, we may well be producing the same feeling in the person being executed.”
Oklahoma’s execution formula calls for an initial dose of midazolam, which state prison officials say renders a prisoner unconscious and impervious to pain. Once the drug takes effect, two other drugs are administered to induce paralysis and then stop the heart — a process that might be excruciating for someone who was not fully sedated.
Prison officials have argued that the sedative is a “tried-and-true” way to make executions painless, and at this week’s trial, each side called on doctors whose testimony bolstered its case.
In contrast, Dr. Gail Van Norman, an anesthesiology professor at the University of Washington who was called by the public defenders representing the prisoners, said she was “virtually certain” that the current drug combination had caused several men extreme pain, the newspaper reported.
In the 2015 ruling against the need for a preliminary injunction to immediately halt use of midazolam, a majority of Supreme Court justices also said that the prisoners challenging the sedative’s use had failed to identify an alternate means of execution that would reduce the likelihood of suffering.
The death row prisoners have now identified three alternatives that they argue are readily available and preferable, including two possible combinations using fentanyl, a powerful opioid, or scrapping lethal injections altogether in favor of a firing squad.
At least two states that once used midazolam for executions have stopped doing so in recent years. Florida began using a different drug after it was unable to get more midazolam from its supplier, and Arizona did so as part of a settlement after a 2014 execution using the drug lasted for nearly two hours, one of the longest in U.S. history.
Oklahoma’s history of killing prisoners has been particularly plagued by errors.
In 2014, Clayton D. Lockett appeared to writhe in pain after the medical staff failed to make sure that the midazolam sedative flowed into his bloodstream; his execution was called off, but he nonetheless died 43 minutes later of a heart attack. In the state’s next execution, of Charles F. Warner in 2015, officials mistakenly used the wrong drug to stop his heart. The combination of mistakes led to a six-year pause on executions in the state before the problematic execution of John Marion Grant in October.
Grant, who had been convicted of fatally stabbing a prison cafeteria worker, appeared to vomit or regurgitate and, in the account of reporters who witnessed his death, convulsed about two dozen times after being injected with midazolam. At the time, the state’s prisons chief, Scott Crow, said that the execution was “not pleasant to watch” but that he believed it was nonetheless humane.
A ruling in favor of the prisoners would, at least temporarily, block Oklahoma from carrying out additional executions using the current combination of drugs but would not halt other states from doing so. About a half-dozen states used midazolam as part of the lethal injection mixture in their most recent execution, according to the Death Penalty Information Center. If the plaintiffs are successful, Oklahoma would almost certainly appeal the ruling, sending the case to an appellate court and potentially to the Supreme Court.
The state has executed three people with the use of midazolam over the past three months, none of whom reacted similarly to Grant. Lawyers for the plaintiffs said they expected that a ruling in Oklahoma’s favor would lead the state to quickly schedule executions among the 40 people currently on death row.
The judge was not expected to issue a ruling for at least a month, after an additional brief from lawyers on each side.
Source: The New York Times, Nicholas Bogel-Burroughs, March 8, 2022
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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
but by the punishments that the good have inflicted." -- Oscar Wilde