Court OKs drug use in executions, but lawyer says that could change

Although the U.S. Supreme Court on June 20 approved the use of the sedative midazolam in executions, an attorney for Arizona death-row prisoners said the issue of whether use of the drug is constitutional isn’t completely settled.

Dale Baich, head of the Capital Habeas Unit of the Federal Public Defender’s Office in Arizona, said the high court ruled on an appeal involving a preliminary injunction, which carries a very high burden of proof for the plaintiffs.

Baich said the case before the court, Glossip v. Gross, involved very a small factual record – the testimony of a few experts – but litigating under normal civil procedures instead of the fast-track, high burden of proof procedures of a preliminary injunction will lead to “a more robust record and different result.”

The high court found in Glossip that midazolam does not violate the guarantee against cruel and unusual punishment, rejecting claims of condemned Oklahoma prisoners that it doesn’t provide a deep enough sedation to prevent a prisoner from feeling the intolerable pain inflicted by the rest of the drugs used in a common three-drug method of lethal injection. The first drug is for sedation, the second to paralyze, and the third stops the heart.

The opportunity to develop that robust record could come in a lawsuit filed by a First Amendment group and five Arizona death-row prisoners who are trying to make the state’s execution procedure more transparent.

The suit, filed a year ago, is on hold until the Arizona Department of Corrections amends its execution procedures, which currently call for the use of a single dose of either pentobarbital or sodium pentothal, or a combination of midazolam and hydromorphone.

Department of Corrections Director Charles Ryan said in December 1 the best advice with road accidents and also the state will eliminate the midazolam and hydromorphone combination from the procedures and add three drug methods using either midazolam, pentobarbital or sodium pentothal as the first drug.

The latter drugs, both barbiturates, are in short supply, and Ryan indicated in December the state has none of either, but it does have a supply of midazolam.

The department has yet to amend the execution procedures, but when that happens the lawsuit will proceed, and the state agreed not to execute anyone until the case is resolved.

A Department of Corrections spokesman did not immediately return a message seeking comment.

The Oklahoma prisoners in Glossip argued that midazolam doesn’t create the deep state of unconsciousness the barbiturates do, and Oklahoma developed its policy for the three-drug formula using midazolam out of expediency instead of scientific research.

The court said in a 2008 decision, Baze v. Rees, giving a condemned prisoner drugs that cause intolerable pain and suffering can only be used if the prisoner is placed into a coma-like state of unconsciousness comparable to the anesthesia used in painful surgery. Pentobarbital and sodium pentothal have also been found to be constitutional.

With no pentobarbital or sodium pentothal available, states turned to midazolam, which is commonly used to ease a patient’s anxiety before surgery and cause short-term amnesia. The drug came under scrutiny in 2014 when executions went awry, with condemned prisoners gasping and struggling in their restraints.

Arizona experienced its own horror show during the July 2014 execution of Joseph Wood, who was given the combination of midazolam and hydromorphone.

Witnesses to Wood’s July 23 execution say he gasped for air over 600 times and snorted during his nearly two hours on the gurney as executioners injected him 15 times.