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March 16, 2017

Focused look at midazolam as the latest (but not greatest) execution protocol drug

Earlier this week, the New York Times had this extended article about a recent development in modern execution protocols. The piece is headline "When a Common Sedative Becomes an Execution Drug," and here are excerpts:

[D]ecades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States....

The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock.

In Arkansas, where no prisoner has been put to death since November 2005, midazolam is planned as the first of three drugs in the state’s lethal injections. The drug is intended to render a prisoner unconscious and keep him from experiencing pain later in the execution, when other drugs are administered to stop the breathing and heart.

Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by the execution drugs.

A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there. “The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.”

States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.”...

[T]he drug’s critics have found limited solace in the courts, including the Supreme Court, which last month declined to hear cases from Alabama and Arkansas, both of which include midazolam in their lethal injection protocols. Those moves amounted to reinforcement of a ruling in 2015, when Justice Samuel A. Alito Jr., writing for a divided court, noted that the court had found “that the Constitution does not require the avoidance of all risk of pain.” He continued: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

Indeed, some supporters of the death penalty, including people who have witnessed executions that included midazolam, have defended lethal injections and any pain they might cause violent offenders. Proponents also acknowledge that midazolam is far from a drug of choice for executions, but they blame abolitionists for effectively leaving states with limited choices. “No state would use it if they could get the barbiturates,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. “The opponents have created the situation where states are forced to use a drug that is not the optimum.”

March 16, 2017 at 09:13 AM | Permalink


Arkansas is in the 8th Circuit. That likely matters from the standpoint of whether Arkansas is going to put these SOBs down.

Posted by: federalist | Mar 16, 2017 10:02:10 AM

The last paragraph is rather informative. When people like KS say something is not "optimal" here, the median person should be rather concerned.

The rules should be applied evenly here. When some say such and such is unfair, the reply often is that life is unfair, but the government isn't the one to blame. See, e.g., denial of certain types of health benefits like abortion funding.

Now, "abolitionists" are blamed for a situation and a more dangerous method is deemed appropriate in significant part for that reason. But, if the government has a minimal obligation,* the reasons for not able to carry it out is very well besides the point on a basic level. This includes other countries not supplying drugs based on various reasons such as the desires of the people there and industrial decision-making in a free market system that doesn't compel supplying certain drugs to dp states.


* There is a dispute regarding whether the obligation is met here, but repeatedly the opponents of the death penalty [mind you, not the actual death row inmates raising the claims] are being blamed here & there is some implication this should be a thumb on the scales in some fashion. If not, unclear why it is repeatedly brought up.

Another discussion of the dispute:


Posted by: Joe | Mar 16, 2017 12:05:27 PM

Awwwwwww, poor Joe. He makes a perfectly logical point, and the Supreme Court says "Don't care." Awwwwww.

The reality, of course, is that Joe's right that, logically, the abolitionist's actions shouldn't impact the analysis. But being right on that doesn't undercut the fact that if the DP is legal, then there, ipso facto, has to be a means of carrying it out. And if the "best" method is not available, then sub-optimal is ok, even if it has marginally higher risks of pain. That's what happens when, instead of taking Scalia/Thomas' view on LI, which is that it's only an 8th Amendment issue if its deliberate infliction of pain, we have nebulous standards that kinda sorta import the idea of whether a better method is "available." In other words, Joe, y'all got more than the proverbial "inch" and now you want a mile, but the "inch" was a gift in the first place.

Posted by: federalist | Mar 16, 2017 12:16:38 PM

I'm right! Must be a catch. Always a catch. There is. Too bad. So sad!

"if the DP is legal, then there, ipso facto, has to be a means of carrying it out"

It's quite logical for the death penalty to be constitutional but only certain means being allowable because of minimal standards. This shouldn't change merely because the death penalty might not be able to be applied in such and such a case. If a state, e.g., has the power to run a business but don't have the means to meet federal labor standards because of budgetary reasons, the power is still there. The state needs to find the money somehow first.

The rubber hasn't quite met the road yet. Justice Alito, e.g., in Glossip denied that the dilemma truly had to be met. The means used according to the majority there is acceptable and was not akin to burning at the stake etc. But, there is an implication that the state having a harder time executing should change the calculus here somehow. It is likely to influence the final decision-making.

"marginally higher risks of pain"

It's quite true that the means used need not be "optimal," but my message, perhaps missed, is that when conservative criminal justice analysts say something is not "optimal," it should send a warning flag to the median analyst that the minimum tests set forth might not have been met.

Posted by: Joe | Mar 16, 2017 1:05:40 PM

Umm, where do you get the idea that the (or a) method of execution has to be perfect? That is the sort of thinking that Baze flat rejected.

Posted by: Soronel Haetir | Mar 16, 2017 1:10:38 PM

Your point wasn't missed. I just don't care about it.

And Joe, I believe I made the same point you did either here or at C & C.

At the end of the day, the rule is that states are going to have leeway, and the federal courts will play "Mother, May I?" But Joe, you missed my point--you're playing with house money already--you're arguing for more house money. If we went back to first principles, i.e., that the states get to do LI without intrusive federal court oversight (e.g., Judge Frost), then we wouldn't even be talking about what abolitionists are doing. In other words, the states get to do some diligence, and if that diligence shows that midazolam can be done without pain, then off to the races we are.

Posted by: federalist | Mar 16, 2017 1:34:06 PM

"Umm, where do you get the idea that the (or a) method of execution has to be perfect?"

Who is "you" here? It not being me or the challengers.

"Your point wasn't missed. I just don't care about it."

duly noted

"states are going to have leeway"

Another vanilla statement I'm fine with. Yet again the hard question is the proper degree. It is far from surprising people have strong disagreements on details.

"states get to do LI without intrusive federal court oversight"

Details again. The key word here means "causing disruption or annoyance through being unwelcome or uninvited." But, a basic vanilla thing is that there are constitutional standards that states will in various cases will find annoying, unwelcome, not welcome etc. One other thing. It doesn't even have to be "without pain." Punishment will painful to some degree. It is a legitimate amount.

Anyway, glad I was right about something.

Posted by: Joe | Mar 16, 2017 1:53:24 PM

Ah, Joe. you nibble about the edges. You don't address the house money point, nor do you address the summation about diligence.

Your arguments are based on the edifice of federal courts having the authority to second-guess state decisionmaking after the states have done reasonable diligence in assessing means of execution. They have taken it, but have not gone to the logical conclusion of the rationales for that authority. That's the house money issue.

In any event, your niggling about "details" isn't a valid criticism. Idiot and arrogant judges have criticized a state for having a doctor participate in an execution on the basis that the protocol didn't call for a doctor. This is beyond wrong, and, not to put too fine a point on it, intolerable. The federal court inquiries should be limited to asking whether the states complied with minimum amounts of diligence in assessing LI methodology. That's it.

And, it is remarkable to me---you continually engage in d-baggery and weak nibbling at the edges (as if cute little statements about "details" win anything but the silly satisfaction of an illusory debating point)--but yet when called to defend things like stay votes based on a lack of disclosure of the compounding facility when the stuff was f'in tested, you turn tail and hide.

You don't run with the big dogs--you nip at ankles. It's pathetic, but what else is to be expected from today's liberals? Either they are urbane effete twits like pajama boy or thugs who are tough in crowds (e.g., the black bloc turds).

Posted by: federalist | Mar 16, 2017 2:26:19 PM

The expiration dates are fraudulent. The drug will be good for many more years.

Posted by: David Behar | Mar 16, 2017 8:47:25 PM

Joe. I support visits to abolitionists by the families of murder victims.

Posted by: David Behar | Mar 16, 2017 8:48:22 PM

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