The Drug Behind Last Year's Three Botched Executions Is About to Be Used Again

The drug midazolam was used in three different executions last year. Each went so poorly—one lasted an agonizing two hours—that the states which conducted them halted further executions, in order to reexamine what went so wrong. After updating its execution chamber and lethal injection protocols, Oklahoma is preparing to use midazolam for an execution yet again, and it will, unless the Supreme Court intervenes.

Attorneys representing a number of death row inmates have asked the Supreme Court of the United States to stay executions in Oklahoma until its revised death penalty protocol can be reviewed. Capital punishment has been halted in the state since Clayton Lockett's botched execution. That procedure was called a "procedural disaster" but "ultimately successful" in 10th District Court Chief Judge Mary Beck Briscoe's decision to deny an emergency stay of execution for other death row inmates.

While Lockett's cause of death was traced back to misplaced IV lines, the inmates' lawsuit takes issue with midazolam, the drug that is going to be used in their lethal injection drug cocktails.

Lethal injection drugs typically take only four or five minutes, and should quickly render the inmate unconscious. Lockett's took 43. And according to a witness, Lockett was moving around and conscious enough to say, "this shit is fucking with my mind," "something is wrong," and "the drugs aren't working."

Midazolam was also used in the 26-minute execution of Dennis McGuire in Ohio, and Joseph Wood in Arizona, who witnesses described as gasping for air "like a fish" in the course of a one hour and 57-minute execution. Oklahoma's new drug protocol allows for four different drug cocktails to be used, and inmates have been informed that their lethal injection will be "500 milligrams of midazolam, 100 milligrams of vecoronium bromide, and 240 milliequivalents of potassium chloride," the same three drugs the state was attempting to use in Lockett's execution.

Midazolam is supposed to render the inmate unconscious, while the vecoronium bromide stops the heart and the potassium chloride stops the patient from breathing. The inmates' lawsuit maintains that midazolam doesn't do what it should: it claims the drug has a "ceiling effect," or a dosage beyond which incremental increases would have no corresponding incremental effect. This risks such paradoxical reactions as agitation, involuntary movements or hyperactivity, and that it is unacceptable as a "stand-alone anesthetic."

"[The ceiling effect] means that while a drug can induce unconsciousness, there is a ceiling to that level and more drugs won't result in increased level of unconsciousness," Jen Moreno, a staff attorney with Berkeley Law School's Death Penalty Clinic and a leading expert on lethal injection, told me in an email.

While the Supreme Court maintains that capital punishment isn't cruel or unusual—a judge in California has a different opinion—certain standards definitely apply. Moreno explained how midazolam differs from other lethal injection drugs, a difference that may separate a constitutional execution from unconstitutional torture.

"Pentobarbital and thiopental, which have been used alone or in three-drug executions protocols, are drugs in the barbiturate category," Moreno said. "Midazolam, a benzodiazepine, is in an entirely different class of drugs and has different pharmacological properties. It is not an analgesic, meaning it has no pain-relieving properties and the administration of this drug alone will not prevent one from experiencing pain from a noxious stimuli."

"These two reasons—ceiling effect and not an analgesic—are central to medical expert opinion that midazolam cannot render and maintain a level of unconsciousness sufficient to prevent pain and suffering caused by the second and third drugs," she said. In other words, there is a decent chance that an inmate being executed with midazolam will not be rendered unconscious enough to avoid the pain induced by the other drugs. He may suffer.

In her 10th District Court decision, Briscoe stated that a stay of execution could not be granted "unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain." But in this case, "the plaintiffs have failed to establish that the use of midazolam in their executions, either because of its inherent characteristics or its possible negligent administration, creates a demonstrated risk of severe pain."

Dale Baich, an attorney representing the inmates, however, cited the Lockett, McGuire, and Wood executions as evidence that there is certainly a risk of pain indeed.​

"We know that midazolam does not satisfy the constitutional requirement of preventing cruel and unusual suffering and that it does not reliably anesthetize prisoners during executions," Baich said in an emailed statement. Expert testimony points out that the FDA has concluded that midazolam cannot be used as the sole anesthetic as it does not reliably prevent consciousness and responsiveness when used as a sole drug.

Midazolam is used in a medical context, though. You may recall that midazolam as the drug that actually "awakened" a minimally-conscious patient who was given a small dose before a CT scan. He woke up, started chatting, called his aunt on the phone and then, when the drug wore off, reverted to the near vegetative state he had been in for two years following a motorcycle accident. Rather than inducing unconsciousness, midazolam actually made a man more conscious, which certainly seems to serve as anecdotal support for the inmates.

But, as Briscoe pointed out, the Supreme Court "has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment," and has recognized "that there must be a means of carrying . . . out" capital punishment. "Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure,'" Briscoe's decision stated.

Oklahoma's autopsy of Lockett attributes the botched execution only to error—misplaced IV lines—not to midazolam. The state has redesigned its death penalty protocol and execution chamber to mitigate the risk of error. The next execution in Oklahoma is scheduled for Thursday evening at 6. Whatever happens, it is very unlikely to be another "procedural disaster" like Lockett's. That's one thing that the lawyers and courts agree on.

"It is especially concerning that midazolam is used in combination with a paralytic because if the drugs are properly administered, it will be impossible to tell (because the prisoner will be paralyzed) if the midazolam is working as intended," Moreno told me. "The very real risk is that midazolam will not produce the necessary level of unconsciousness and the prisoner will regain consciousness when subjected to the noxious stimuli of the second and third drugs, but he will be unable to show any signs of suffering because he will be paralyzed. Basically what happened in Lockett would occur, but we just wouldn't see it."

At the very least, the witnesses will be safer than last time.