Oklahoma's Expert Checked Drugs.com Before Approving a Lethal Injection Drug

Last night Oklahoma executed the convicted child rapist and murderer Charles Warner, after the Supreme Court of the United States voted 5-4 against Warner and three other inmates' application for stays of their executions.In the dissent, Justice Sonya Sotomayor argued that the expert the state's case relied on had little knowledge of the drug at the center of the debate, beyond what he read on the internet.

The inmates' argument alleges that the state's use of the drug midazolam as an anesthetic violates the Eighth Amendment prohibition against cruel and unusual punishment.

Midazolam was the common thread connecting botched executions in Arizona, Ohio, and even Oklahoma itself, and the inmates' petition contended that midazolam was not designed to be used alone as an anesthetic, and should not be. It only became part of lethal injection drug cocktails recently, after other drugs became difficult for states to acquire.

To speak in favor of midazolam before the 10th District Court, Oklahoma relied on the expert testimony of Dr. Evans, a doctor of pharmacy—not anesthesiology—whose expertise came to look pretty shaky when examined by the Supreme Court.

"In contending that midazolam will work as the State intends, Dr. Evans cited no studies, but instead appeared to rely primarily on the web site www.drugs.com," Justice Sotomayor said in her dissenting opinion.

If you want to have just as much expertise as Dr. Evans, here's drugs.com's page on midazolam. Even that site only lists midazolam doses for "light anesthesia." This is troubling because, as lethal injection expert Jen Moreno told me, the drug is known to have a "ceiling effect," beyond which incremental dosage increases don't drive the patient further into unconsciousness.

Given midazolam's record as of late, as well as experts brought in on behalf of the inmate's case who basically discredited Evans's testimony, Sotomayor didn't agree with the lower court's opinion that Oklahoma was practicing due diligence.

"I find the District Court's conclusion that midazolam will in fact work as intended difficult to accept given recent experience with the use of this drug," Sotomayor wrote. "Lockett was able to regain consciousness even after having received a dose of midazolam—confirmed by a blood test—supposedly sufficient to knock him out entirely.

"Likewise, in Arizona's July 23, 2014, execution of Joseph Wood, the condemned inmate allegedly gasped for nearly two hours before dying, notwithstanding having been injected with the drug hydromorphone and 750 milligrams of midazolam—that is, 50 percent more of the drug than Oklahoma intends to use," she continued.

Compared to the 43-minute struggling execution of Clayton Lockett eight months ago, Warner's execution went pretty well for the state of Oklahoma. As the first lethal injection drugs were administered, USA Today reported Warner said, "my body is on fire," but he showed no outward signs of distress. The execution lasted 18 minutes.

But Sotomayor pointed out that no matter how well Warner's execution went, the question of whether midazolam is ethical to use will still be up for debate. Midazolam has been used in executions in Florida without undue incident, but it is always used in tandem with a drug that paralyzes the inmate, vecuronium bromide, so even if the midazolam isn't working and the inmate is awake and in excruciating pain, he wouldn't be able to move.

"The inmate may be fully conscious but unable to move," Sotomayor wrote in her decision. "The deficiency of midazolam may generally be revealed only in an execution, such as Lockett's, where the IV fails to sufficiently deliver the paralyzing agent."

So we don't know how well or poorly Warner's execution went. We do know that, weirdly, it was made possible in part by someone looking up stuff on a website called "drugs.com."

"I struggle to see how [the 10th District Court's] decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence," wrote Sotomayor.