After death row inmates in Oklahoma and Arizona gasped for 43 minutes and 2 hours, respectively, both states put the use of those injection drugs on hold.
But over the past week, and after outcry that these executions could have been cruel and unusual, both states committed to use the same drugs and protocols in the future. In Oklahoma, a federal judge approved that decision late Monday, ruling that it would not stop Oklahoma from moving forward with at least four other executions using the same fast-acting sedative, midozolam, albeit with a new protocol that includes larger doses.
U.S. District Judge Stephen P. Friot rejected arguments that the state’s executions amounted to human experimentation because of the little-known effects of midozolam in lethal doses. Midozolam is typically used after, not during surgery, and is not considered a true general anesthetic, because it allows awareness to exist and thus might mean individuals continue to feel pain. Anesthesiologists have called use of the drug “uncharted territory.” “States literally have no idea what they’re doing to these people,” David Waisel, an anesthesiologist at Boston Children’s Hospital, told the Wall Street Journal. A Johns Hopkins University Bloomberg School of Public Health analysis after Oklahoma’s botched execution found that using drugs not approved for execution was akin to making death row inmates into human guinea pigs.
Arizona also used the drug in the execution of Joseph Rudolph Wood, in which Wood writhed for an unheard-of two hours after injection. But a report out of that state Monday concluded that the execution was conducted properly and that Wood did not feel any pain.
The problem in both states is that the process is cloaked in secrecy. Oklahoma is one of a number of states that have turned to small-batch drugs made in what is known as compounding pharmacies, facilities not regulated by the Food and Drug Administration. States have protected the names of these facilities from public disclosure, so that neither the public nor death row inmates can independently determine whether these executions are cruel and unusual.
States are turning to these facilities because of a lack of other alternatives. And for Judge Friot, that was a good enough reason as any to allow them to keep doing it. “The plaintiffs have failed to present a known and available alternative,” Friot said said. His ruling this week declined to block Oklahoma’s executions temporarily, meaning Oklahoma can likely proceed with four death sentences scheduled for early 2015. But it is not a permanent ruling on the constitutionality of this method.
Indeed, states began using these compounding pharmacies because international opposition to the death penalty has stopped major pharmaceutical companies from providing drugs for executions. States have also turned to alternative methods that had fallen out of favor, including gas chambers, firing squads, and the electric chair.
The medical community’s opposition to the death penalty has also exacerbated the potential for error, because many major associations prohibit medical professionals from participating in executions. An autopsy of Clayton Lockett’s botched Oklahoma execution found that the biggest problem may have been human error by the person who inserted the needle.