COLUMBUS, Ohio – Is unorthodox the same as cruel and unusual punishment?
That’s the central question of the current U.S. death penalty debate, highlighted by the latest execution involving a disputed sedative that appeared to involve discomfort to the inmate.
States struggling to find lethal drugs believe they’ve got the answer in midazolam, a sedative that’s taking the place of barbiturates and anesthetics no longer available because drug manufacturers don’t want them used in executions.
States that have the drug won’t say where they’ve obtained it, but in recent months have secured enough supplies to carry out or plan executions.
But once again, the effectiveness of midazolam has been questioned following executions in Ohio, Arizona and, just last week, Arkansas. That’s where condemned inmate Kenneth Williams lurched and convulsed 20 times during a lethal injection execution Thursday that began with midazolam.
“There is so much evidence that this drug leads to problematic and likely torturous executions, and the two courts that have heard the most evidence – Ohio and Arkansas – ruled against the drug,” said Jen Moreno, a staff attorney with the Berkeley Law Death Penalty Clinic.
In June, the full 6th U.S. Circuit Court of Appeals plans to hear a challenge by Ohio death row inmates of the state’s new three-drug method, which inmates say could lead to a substantial risk of harm. The method begins with midazolam.
Attorneys leading that challenge didn’t immediately respond to requests by the Associated Press for any plans to use what happened in Arkansas in their arguments to the appeal as court. But it’s almost guaranteed to be among their leading arguments, judging by past filings.
Ohio plans to use a massive dose of 500 milligrams of midazolam, which attorneys for Ohio say is more than enough to render inmates unconscious. The state also notes the Supreme Court has drawn a distinction between pain that amounts to cruel and unusual punishment, and pain that is a consequence of death.
Attorneys fighting Ohio’s procedure have presented evidence from expert witnesses who say that midazolam is subject to a “ceiling effect” that limits its effectiveness, regardless of how much is administered.
At the state’s request, the full appeals court agreed to review the case after a three-judge panel rejected the method as unconstitutional. Such full-court hearings, instead of by a smaller panel, are relatively rare.
The appeals court is the middle step between initial rulings by federal judges and reviews by the U.S. Supreme Court.
Attorneys for Williams and the American Civil Liberties Union called for a full investigation after he became the fourth convicted killer executed in Arkansas in eight days. The state sought to carry out as many lethal injections as possible before one of its drugs expires Sunday, meaning its effectiveness date passes without new supplies to replace it.
Gov. Asa Hutchinson also noted that the use of midazolam, which was a component of Williams’ injection, has been upheld by higher-level courts. He said he does not think Arkansas needs to change its execution protocol.
Questions about midazolam come as use of the death penalty slowly declines in the U.S. following its reintroduction in 1976, four years after the Supreme Court declared it unconstitutional.
Only 30 people were sentenced to death in the United States last year, the lowest number since the early 1970s. Just 20 people were executed in 2016, the fewest since 1991, and a far cry from 1999, when there were 98 executions.
Beginning in 2011, drugmakers, many based in Europe, came under new pressure from anti-death penalty activists and began to put drugs previously used in executions off limits.
The result is an ongoing scramble for states to find alternatives, including compounded versions of drugs that can be made by individual pharmacies, and versions of the drugs manufactured by overseas companies not regulated by the FDA.
But several death penalty states aren’t ready to give up. Several, including Arkansas, Georgia and Ohio, have passed laws shielding the source of drugs. Others are proposing similar laws.
All the Arkansas inmates – including Williams – died within 20 minutes of their executions beginning, a contrast from troubled midazolam-related executions in other states that took anywhere from 26 minutes to two hours.
Nevertheless, opponents of midazolam are now focusing on the 6th Circuit, especially after the 8th Circuit federal appeals court allowed the Arkansas executions to go forward. Lower-court judges in Ohio and Arkansas have rejected use of the drug.
In a case from Oklahoma, the U.S. Supreme Court in 2015 upheld the use of the drug. Death penalty opponents in Ohio argue the case here has been argued more fully and should reach the court again.
Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he believes the Arkansas case will have only minor influence on whether the U.S. Supreme Court again considers the use of midazolam.
A spokesman for the Arkansas governor called the movements seen in Thursday’s execution “an involuntary muscular reaction” that were common side effects of midazolam. Scheidegger agreed.
“There isn’t any legitimate reason why involuntary muscle movements during this execution should affect others,” he said.
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