These States Matter In SCOTUS' Death Penalty Case

by Lauren Barbato

Following a year of botched executions that painfully extended prisoners' final moments to hours, the U.S. Supreme Court is taking up the death penalty on Wednesday in a case that could have serious implications for the corrections departments in four U.S. states. In Glossip v. Gross, the high court will consider whether or not use of anti-anxiety drug midazolam constitutes as "cruel and unusual punishment" when taken as part of a three-drug lethal injection cocktail. This case looks at three different 2014 executions, all of which allegedly resulted in prolonged, agonizing suffering for the death row inmates.

In 2008, the Supreme Court approved of the three-drug lethal injection cocktail designed by the state of Oklahoma, which coincidentally was the first state in America to perform lethal injections. That three-drug protocol, at the time used by at least 30 states, consisted of the short-acting barbiturate sodium thiopental. The high court ruled that with the use of sodium thiopental, the three-drug lethal injection cocktail was humane and lawful. But now that there's a sodium thiopental shortage in the United States — largely due to anti-death penalty and pharmaceutical activism that pressured drug manufacturers to stop selling the drug to U.S. prisons — state corrections departments have turned to untested alternatives, including midazolam. Although it's commonly used to alleviate anxiety, midazolam is not a barbiturate. Attorneys petitioning the Supreme Court contend in their brief that the drug has the opposite effect of sodium thiopental, making it a harmful substitute for death row prisoners:

In Baze, there was consensus that sodium thiopental, if properly administered, would produce deep comalike unconsciousness. With midazolam, the opposite is true. Midazolam is not approved for use as the sole anesthetic for painful surgery. Clinical studies showed that midazolam does not reliably induce deep unconsciousness; when used in surgery, patients felt pain. The medical consensus is that midazolam cannot generate deep, comalike unconsciousness. There is also no substantial practice among the states of using midazolam for lethal injections. Although sodium thiopental was widely used in lethal injections for years, only four states have used midazolam in an execution, and only two have tried to use it as anesthesia. On these undisputed facts, the use of midazolam to create deep comalike unconsciousness presents an “objectively intolerable risk of harm” (Baze, 553 U.S. at 50).

Midazolam & Oklahoma

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Glossip v. Gross was brought before the Supreme Court by four death row inmates in Oklahoma, which came under fire last spring following the harrowing execution of Clayton Lockett, a 38-year-old man convicted of rape and first-degree murder. Exactly one year ago today, Lockett was the first person in Oklahoma executed with the experimental midazolam cocktail, and his execution didn't go as planned.

According to eyewitness accounts, Lockett was able to raise his head and speak after having been declared "unconscious." Journalists and lawyers in the viewing chamber at the time have said that Lockett writhed in pain and tried telling prison staff that something was wrong. His execution took 43 minutes — much longer than executions with sodium thiopental.

Death row inmates scheduled to be executed in Oklahoma in 2015 petitioned the Supreme Court, requesting a review of the midazolam cocktail. Of the four Oklahoma death row inmates who petitioned the high court, one was executed: Charles Warner, on Jan. 15, 2015.

Shortly after his execution, the Supreme Court issued an order suspending all executions in Oklahoma. According to the petitioners' brief, Warner's last words were, "My body is on fire."

"Further information about Warner’s execution currently is not available to petitioners, because, in response to discovery requests, Oklahoma has refused to provide evidence about Warner’s execution," the brief states.

Where Else Is Midazolam Used?

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Midazolam is currently used in the lethal injection protocols of just four states: Oklahoma, Arizona, Florida and Ohio. All of these states have witnessed botched executions over the last two years.

In 2013, William Happ was executed in Florida with a lethal injection protocol using midazolam — it was the first time midazolam was used in an injection, petitioners say, but the cocktail was a bit different than the one used in Lockett's execution. According to the petitioners, 11 other men in Florida have been executed with midazolam (Florida has since suspended its executions until the Supreme Court case is completed).

Four months before Lockett's botched execution, Ohio inmate Dennis McGuire was given a lethal injection consisting of midazolam. According to eyewitness accounts, McGuire's death took more than 20 minutes, as he reportedly gasped for air, snorted and choked. McGuire was not executed with a three-drug cocktail like Lockett, but a two-drug cocktail of midazolam and hydromorphone, a morphine derivative.

And in Arizona on July 23, 2014, Joseph Wood was given a lethal injection cocktail that included 750 mg of midazolam — much higher than the 100mg of midazolam Lockett received. Wood's execution lasted nearly two hours. One reporter who witnessed the execution, Troy Hayden of Fox 10 News, said at the time that it was like "a fish on shore gulping for air." Representatives for the state maintain that Wood was comatose for a majority of the execution and not in pain.

What Do The Doctors Say?


Today, attorneys representing the death row petitioners will attempt to make the case that these botched executions using midazolam are unlawful under the Eighth Amendment, which, of course, outlaws "cruel and unusual punishment." But what do medical experts say?

In a brief supporting neither party, 16 professors of pharmacology seem to believe that regardless of one's personal stance on the death penalty, midazolam is the wrong drug to use in lethal injections. The professors write:

There is overwhelming scientific consensus, including among pharmacologists, that midazolam is incapable of inducing a "deep, comalike unconsciousness." ... Increasing doses of barbiturates, including thiopental and pentobarbital, will induce sedation, then sleepiness, then anesthesia, then coma, and finally death. Midazolam, however, is not a member of the barbiturate drug class. It is a benzodiazepine, a separate class of drugs that does not exert its pharmacological effect in the same manner as barbiturates. This pharmacological distinction explains why midazolam cannot induce unconsciousness at any dose, and why it is not an appropriate substitute for either thiopental or pentobarbital as the first drug in a three-drug lethal injection protocol.

"From a pharmacological perspective, midazolam is not appropriate for its intended purpose" in lethal injection, the professors add.

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