Execution Drug Ruling Could Impact Several States

by | April 29, 2015

By Graham Lee Brewer

The U.S. Supreme Court will hear oral arguments Wednesday on Oklahoma's execution protocol, specifically whether or not the use of a particular drug in the state's lethal cocktail is constitutional.

Midazolam has been at the center of much debate and legal wrangling since 2014, when the sedative was used in a few problematic executions across the country, including the lethal injection of Oklahoma inmate Clayton Lockett that April.

A state investigation later concluded that problems that occurred during Lockett's execution, which lasted 43 minutes and caused him to writhe and speak during a time he was supposed to be unconscious, were largely caused by an improperly placed IV. But expert testimony in a December federal court hearing suggested midazolam was a potentially dangerous drug to use in lethal injections.

The federal judge in that case found the use of midazolam did not violate inmates' Eighth Amendment protections against cruel and unusual punishment. But a 5 to 4 Supreme Court vote denying the final appeal of Charles Frederick Warner, an inmate who was put to death in January using the drug and the last prisoner to be executed in Oklahoma, was enough for the justices to hear arguments on the constitutionality of midazolam's use. The court later granted a request by state Attorney General Scott Pruitt to stay all of the state's scheduled executions.

Focus on midazolam

Since the court will be looking specifically at midazolam, the case likely will only be significant to states that also use the drug, such as Ohio, Arizona, and Florida, said Robert Dunham, executive director of the Death Penalty Information Center.

The case is not an indictment of lethal injections as a whole, Dunham said, and, in fact, the court could very likely focus not on the use of the drug itself, but instead how it is administered.

"The court could say that it's unconstitutional because midazolam is an inappropriate drug to be using and make it so that midazolam itself would be an Eighth Amendment violation," he said. "But, they could say that the use of midazolam without particular safeguards or in particular circumstances is unconstitutional. So, I think the states are rightly waiting for the court to act so that they can respond intelligently after the decision is announced."

If the court finds the drug or its application to be unconstitutional, Oklahoma still has two other lethal combinations that do not require the use of midazolam. However, those combinations utilize the drugs sodium thiopental and pentobarbital, two drugs that have become increasingly difficult to obtain.

Three more doses

The Department of Corrections has access to the ingredients of at least three more doses of the three drug cocktail that includes midazolam, spokeswoman Terri Watkins confirmed Thursday. She said the state also continues its search for a reliable source of pentobarbital.

Dale Baich, one of the federal public defenders representing the inmates who are challenging Oklahoma's execution protocol, argues the expert testimony in federal court in December was conclusive; midazloam is not an adequate anesthetic and does not properly sedate inmates for lethal injection purposes. He said other states, such as Texas and Georgia, have successfully been able to obtain pentobarbital, and it is unclear why Oklahoma cannot obtain the drug due to a lack of transparency in the state Department of Corrections.

Pruitt contends the use of midazolam has been upheld by multiple courts, and he has no doubt the Supreme Court will rule similarly.

"All previous courts have ruled that the lethal injection protocol used by Oklahoma is constitutional," he said in an emailed statement. "My office believes the U.S. Supreme Court, after considering these facts, will also find that Oklahoma's lethal injection protocol is constitutional and thus allow the sentences for these heinous crimes to be carried out in accordance with the law."

Death penalty support

Joseph Thai, presidential professor of law at the University of Oklahoma, said while shining a light on the execution process is an important part of the democratic process, he agrees with Pruitt that the Supreme Court will likely rule to affirm the state's use of midazolam.

"Unlike bans on same-sex marriage, public opinion has not turned against the death penalty with the same swiftness and sweep, and support remains entrenched in states like Oklahoma that retain the death penalty," Thai said. "If the Court upholds the execution method at issue, debate over the death penalty will likely remain at a stalemate nationally, leaving its fate to state politics."

The court is expected to make a final decision sometime this summer.

(c)2015 The Oklahoman