By Danny Barber for BiolawToday.org blog:
In April of last year, Oklahoma gained unfortunate notoriety when its lethal injection procedures failed to adequately sedate Clayton Lockett. The execution required over forty minutes to complete.[1] It was explained afterwards that one of the drugs in the lethal mixture failed to enter the inmate’s bloodstream, and ultimately failed to produce a significant anesthetic effect allowing Lockett to be more or less conscious during the procedure. In the aftermath of the execution, Oklahoma has since faced scrutiny and a federal lawsuit over the constitutionality of the experimental drug mixture.
Oklahoma, among other states, had only began experimenting with lethal mixtures of drugs to execute inmates after pentobarbital, a barbiturate long used in executions, became difficult for the states to procure in 2013.[2] The mixture that Oklahoma and other states have been using contains three commonly used compounds, however the states administer the drugs off label in a manner that is lethal. The first drug, potassium chloride, is used medicinally to treat electrolyte imbalances, but in high doses can induce cardiac arrest. The second compound, pancuronium bromide, is used as a muscle relaxant during surgery, but in high doses can arrest muscle contractions involved in respiration. Finally, the focal drug in the federal suit brought by four Oklahoma death row inmates is Midazolam, a benzodiazepine used for the treatment of anxiety and an analogue of the more common Valium or Xanax.[3]
On January 15th of this year, the four inmates who filed the federal suit sought a stay of their pending executions from the Supreme Court, in hopes that their certiorari petition would be granted to review the procedure. The four inmates failed to get the necessary five votes from the Justices to stay the execution, and the lead petitioner was executed that night using the same mixture that was delivered to Mr. Lockett last year.
However, the Court just seven days after refusing to grant a stay granted certiorari to review the constitutionality of the execution procedures. After certiorari was granted, the State of Oklahoma sought to stay the three remaining executions until the case was decided, and the Court granted the state’s petition. Oral arguments for the matter are scheduled for in April. Before the court is the question of whether the three-drug mixture being used for execution is reliable enough to ensure painless death in a manner that satisfies the Constitution’s prohibition of cruel and unusual punishment. If the Court’s actions over the last month serve as any indication of the justices’ positions on the matter, it seems that the inmates may fail to gain a majority vote for their claim (as the inmates failed to get a five vote majority to stay their executions in January). Disregarding this, the inmates also face the challenge of persuading the Court that Midazolam is unreliable for sedating inmates when compared to the no longer available pentobarbital. The two drugs are quite similar in their neurochemical effect, and the facts related to the execution of Mr. Lockett indicate that most of the complications occurred because of poor drug delivery, not drug efficacy.
Interestingly, the State of Utah this legislative session took steps to ensure that death by firing squad is an available means of execution, regardless of whether the Court decides this particular lethal injection procedure is constitutional or not.[4] As more and more compounding pharmacies hesitate to manufacture the compounds states have been using in these executions, perhaps the newly passed law may have more immediate implications than previously suspected.[5]
[1] Katie Fretland, Scene at Botched Oklahoma Execution of Clayton Lockett was ‘A Bloody Mess’, The Guardian (December 13, 2014), http://www.theguardian.com/world/2014/dec/13/botched-oklahoma-execution-clayton-lockett-bloody-mess.
[2] Michael Graczyk, Texas Execution Drug Shortage: State Running Out of Pentobarbital, The Huffington Post (August 1st, 2013), http://www.huffingtonpost.com/2013/08/01/texas-execution-drug-shortage-running-out_n_3690893.html.
[3] Lyle Denniston, Oklahoma Takes Next Step on Executions, SCOTUS Blog (January 26th, 2015), http://www.scotusblog.com/2015/01/oklahoma-takes-next-step-on-executions/; Matt Ford, Midazolam and the Supreme Court, The Atlantic (January 23rd 2015), http://www.theatlantic.com/politics/archive/2015/01/SCOTUS-midazolam-lethal-injection-oklahoma/384801/.
[4] Brady McCombs, Firing Squad Gets Final OK. So How Does It Work?, S.L. Trib. (March 24th, 2015), http://www.sltrib.com/news/2326783-155/firing-squad-gets-final-ok-so.
[5] Tracy Connor, Pharmacy Groups Balk at Supplying Lethal Injection Drugs, NBC News (March 30th, 2015), http://www.nbcnews.com/news/us-news/pharmacy-groups-balk-supplying-lethal-injection-drugs-n332656.