Last Wednesday, the U.S. Supreme Court stayed the execution of three Oklahoma inmates, while the justices consider a claim that the state’s execution protocol leaves inmates in considerable pain. Nevertheless, the stay order appears narrow — it provides that “it is hereby ordered that petitioners’ executions using midazolam are stayed pending final disposition of this case” — and would likely permit Oklahoma to move forward with the executions provided that it uses a drug other than midazolam in the first part of a three-drug execution protocol.
That’s exactly what Oklahoma hopes to do, according to Attorney General Scott Pruitt (R). Pruitt said one day after the Supreme Court stayed the execution that he will seek new execution dates for the three inmates if prison officials can acquire an alternative drug.
Three-drug execution protocols typically begin with an anesthetic intended to ensure that the inmate does not experience pain during the execution — a requirement under the Eighth Amendment’s ban on cruel and unusual punishments. The second drug then paralyzes the inmate, while the third drug actually kills them. Oklahoma wishes to use the drug midazolam as the pain-killer in this three-step process, but it is not at all clear that this drug is an effective anesthetic. Rather, as Justice Sonia Sotomayor recently explained in a dissenting opinion joined by three other justices, inmates executed with this drug appeared to experience considerable pain during their executions. Research indicates that midazolam has a “ceiling effect,” meaning that, while it is effective as a pain-killer up to a certain point, higher doses beyond that point do not increase its effectiveness.
Oklahoma turned to midazolam because it’s been unable to obtain more reliable anesthetics for executions. Many foreign companies that manufacture these more reliable drugs refuse, on ethical grounds, to sell them if they will be used to carry out a death sentence. Meanwhile, foreign governing bodies such as the European Commission imposed tight export restrictions on drugs that can be used in executions. When the state of Missouri mistakenly received 20 vials of a therapeutic drug that could also be used in executions in 2012, the German company that manufactures the drug threatened to cut off exports if Missouri used it to kill an inmate. The state eventually relented after the Missouri Society of Anesthesiologists urged the state not to use the drug, noting that it was used in 95 percent of surgeries.
Without access to many drugs used in executions through the normal channels, Pruitt suggested setting up what is known as a “compounding” pharmacy that could produce these drugs in Oklahoma. Compounding pharmacies, however, often produce drugs of uncertain quality or purity that raise many of the same issues surrounding midazolam. In January of 2014, Oklahoma executed a man named Michael Lee Wilson using drugs produced by such a pharmacy. Wilson cried out “I feel my whole body burning” during his execution.
Not all states, it should be noted, have reacted to the shortage of execution drugs with the same eagerness to find a new way to kill death row inmates as quickly as possible. On Friday, for example, Ohio Gov. John Kasich (R) announced that he would reschedule all 2015 executions to 2016 to allow the state sufficient time set up a new execution protocol and obtain a supply of drugs.