In the effort to find less gruesome ways to execute condemned prisoners, more than two dozen states — including California — adopted a lethal injection protocol developed by Oklahoma in the late 1970s in which the prisoner is rendered insensate with one injection, then given a paralytic to halt breathing and a third drug to stop the heart. Without that first shot, experts agree, the next two injections would cause significant pain.
FOR THE RECORD:
This editorial says Arizona stopped using midazolam in executions. It still has the option of using midazolam as part of a three-drug protocol.
The drug of choice for the first injection has been a fast-acting barbiturate, preferably sodium thiopental or pentobarbital. But in the last several years, increasing opposition to the death penalty — and a desire to distance themselves from executions — prompted European and some American manufacturers to stop selling those drugs to U.S. prisons, creating a critical shortage and disrupting the pace of executions. Oklahoma, Ohio, Arizona and other states turned to a substitute, midazolam, which was used in three botched executions last year; Ohio and Arizona have since stopped using it. The revised drug protocol, including midazolam, is the focal point of an Oklahoma case the Supreme Court agreed last week to consider.
Capital punishment is inhumane, immoral, inconsistently applied and irreversible. But if states insist on executing their citizens with lethal injections, they are bound under the Supreme Court's 2008 Baze vs. Rees decision — which found Kentucky's three-drug sodium thiopental protocol constitutional — to use methods that do not involve a "substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death."
According to the challenge filed by four Oklahoma death row prisoners, midazolam does not sedate sufficiently, and thus creates substantial risk of excessive pain in violation of the Baze standards — and of the Constitution. One of the plaintiffs, Charles Warner, was executed Jan. 15 after the court rejected a stay by a 5-4 vote. Justice Sonia Sotomayor wrote a sharply drawn dissent, questioning the court's deference to district courts on matters of fact, and it is believed she led the minority of four, the minimum to grant certiorari, to hear the broader appeal.
It seems unlikely that this court in this case would do something so bold as to recognize that state-conducted executions are inherently cruel and unusual punishments. But it should. Executions are acts of vengeance, not justice, and the United States stands as an outlier on this issue among the rest of the industrialized world. That drug companies shun us indicates just how out of step we are.