Ahead of a U.S. Supreme Court decision regarding Oklahoma’s use of midazolam, a drug used to put death row inmates in a state of unconsciousness during lethal injection, 16 pharmacologists and more than two dozen former state attorneys general released two briefs denouncing midazolam as incapable of achieving its intended purpose. Both statements come after a spate of prolonged executions that many have called cruel and unusual.
Next month, in light of the execution that left Clayton Lockett writing in pain for 43 minutes, the Supreme Court is set to hear from three death row inmates sentenced to lethal injection. Proponents of midazolam previously argued that Lockett’s pain was caused by executioners who punctured his skin with the IV, and not the actual drug itself. But after allowing the execution of Oklahoma inmate Charles Warner to proceed in January, the high court agreed to hear his case and stayed the executions of Richard E. Glossip, John M. Grant, and Benjamin R. Cole Sr., on the basis that the drug could actually be the source of the problem.
One month before the hearing, pharmacologists are lending their voice to the debate around the three-drug cocktail. In a legal brief filed Monday, they stated, “midazolam is incapable of inducing a ‘deep, comalike unconsciousness,’” and that it isn’t “an appropriate substitute for thiopental or pentobarbital as the first drug in the State of Oklahoma’s three-drug lethal injection protocol.” Biochemically, midazolam belongs to a separate class of drugs, benzodiazepine, which is why it does not induce a coma the way thiopental or pentobarbital, two barbiturates, do. Barbituates work because they bind with neurotransmitters, which promote body movements by activating neurons. After a barbituate is injected, it binds with a neurotransmitter called GABA, and releases chloride ions that inhibit neurons and, thus, movement. But because it belongs to a separate drug class, midazolam does not release chloride ions in the same way, so it’s incapable of inhibiting neuron activity.
This isn’t the first time scientists have articulated their concerns about midazolam. The Food and Drug Administration doesn’t sanction its use in lethal injections, and anesthesiologists have said that midazolam is typically used after a surgical procedure, because it does not remove patients’ sense of awareness.
Days after pharmacologists produced the legal brief, former state attorneys general released a similar one, echoing the concerns of the scientific community.
With execution dates set for two condemned prisoners on the same date, Oklahoma lawyers were under temporal and political pressure to go forward with the executions. When their source of pentobarbital fell through, they quickly selected midazolam to serve as the crucial first drug in a three-drug protocol, even though it is not medically equivalent to the drugs typically used for that purpose. The lawyers who made this decision did not consult scientific, medical, or correctional experts; instead, they relied on their own internet research and conversations with officials in other States, most of whom lacked any experience with midazolam.
The brief also pointed to 18 executions since Lockett’s death during which the drug was not used.
Oklahoma uses drugs manufactured by compounding pharmacies, which have no federal oversight. In recent years, global manufacturers of federally-sanctioned anesthetics have refused to export them for use in executions on ethical grounds. With the shortage of drugs and the Supreme Court decision lingering, Attorney General Scott Pruitt (R) wants to set up another compounding pharmacy to manufacture an alternative to midazolam.