Recent Issues in Using Midzolam in Executions

In late July, the United States Supreme Court lifted a stay issued by the Ninth Circuit that required the State of Arizona to provide information about its lethal injection drug cocktail to inmate Joseph Rudolph Wood.  Mr. Wood was executed that same day.  His death was characterized by reporters as taking more than two hours and he took more than 600 gasps for air.  Most executions are complete in ten or eleven minutes.  Mr. Wood’s lengthy execution comes on the heels of another lengthy execution where Mr. Dennis McGuire took more than 20 minutes to die in Ohio, and also repeatedly convulsed and fought for breath after being injected.  An inmate in Oklahoma took more than a half an hour to die in his execution.

These executions relied on the use of a new drug cocktail capital punishment states have been forced to turn to after the component drugs of the more traditional three-drug cocktail have become progressively more difficult to purchase on the international market due to anti-death penalty views from Europe.  Midzolam is being used to replace sodium thiopental, and many activists see its use in executions as an experiment given the lack of information available about its effects on people, in or out of an execution setting.  Although the Supreme Court relieved pressure on states by lifting the stay in July, there is no guarantee that anti-death penalty activists, freedom of information supporters, or reporters will not be able to force other states from divulging information detailing where they get their execution drugs from, and how they determine the specific execution cocktail. 

Concerns from practitioners are abundant.  Will prosecutors seeking death by lethal injection face more hurdles than they do already?  Do death row inmates have a new argument that the death penalty by lethal injection is cruel and unusual punishment?  Can death penalty abolitionists argue the same?  And how do pro-death penalty organizations keep the specific cocktail secret and protect drug manufacturers’ anonymity? 

Although the Supreme Court lifted Mr. Woods’ stay in July, the order did not delve into any of these questions.  It only allowed Mr. Wood’s execution to proceed.  Thus, questions about the right of inmates to know their lethal injection cocktail, or if drug manufacturers have a right to protect their privacy remain outstanding. 

Highlighting these questions is the unclear path their askers have in the court.  Federal courts are pushing questions about the make-up and manufacturer of execution drug cocktails to the state courts.  In March 2014, Oklahoma, which had advocated for the case to be heard in federal court, saw its own execution policies questioned at the state level when Judge David Russell of the Western District of Oklahoma ruled that any question of inmates seeking information about the drugs being used in their execution should be answered by state courts.  Death row inmates Clayton Lockett and Charles Warner had their executions temporarily stayed by the Oklahoma Court of Criminal Appeals to allow the state Department of Corrections additional time to correct existing execution protocol and acquire the requisite drugs needed for the lethal injection, once by a state district court in ruling the state’s execution law to be unconstitutional because its privacy provision prevented inmates from learning the source of the drugs to be used in their executions, once by the state Supreme Court following the Court of Criminal Appeals’ failure to decide on the merits of a stay on two separate occasions, and once by the governor in noting that the state Supreme Court had overstepped its bounds.  The state Supreme Court, just a day later, dissolved its own stay and ruled the state’s execution law to be constitutional.  Six days later, Clayton Lockett died 43 minutes after his execution started. 

Charles Warner’s execution is set for November 2014.  It is unclear whether the federal lawsuit, filed in June on behalf of 21 death row inmates claiming that Oklahoma’s lethal injection procedures constitutes experimentation on death row inmates and violates the Constitution’s ban on cruel and unusual punishment, will lead to a delay in his execution.  Oklahoma, however, is moving forward with updating its protocols and improving its execution equipment.

Lending credence to the idea that this will remain a state and not national problem is that, to date, there have been no Congressional hearings on the matter.  Further, this writer has not been able to even find evidence of calls for hearings on the matter by individual members of Congress.     

It is not clear whether anti-death penalty activists will be able to use these and other recent lethal injection executions to bolster public opinion or change momentum in state legislatures to provide more transparency in states’ execution policies.  Even the dissent in the Ninth Circuit ruling on Mr. Wood’s execution openly questioned why states were so married to the notion of lethal injection and instead postulated that perhaps death by firing squad would offer a more efficient means of execution.  “. . . [F]iring squads can be messy, but . . . we should not shield ourselves from the reality that we are shedding human blood.  If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, maybe we shouldn’t be carrying out executions at all.”  However, even with Wyoming’s recent legislative support of the firing squad, only two states offer it at all, and each has significant caveats in place before it can be used in an execution.

Jon Davey

Staffer, Criminal Law Practitioner

Photo by CACorrections via Wikimedia Commons.