States Swap One Drug For Another, And Botched Executions Follow
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A botched execution in Oklahoma last week has turned a spotlight on how states put inmates to death. In all 32 states that have the death penalty, lethal injection is the preferred method of execution. For many states, it's become difficult in recent years to find the drugs used for lethal injections, so some have been trying new drugs, drugs critics charge are resulting in painful and inhumane executions.
NPR's Greg Allen reports.
GREG ALLEN, BYLINE: For years, most states relied on a three-drug protocol to carry out executions. The first one often was pentobarbital, a powerful drug that renders an inmate unconscious and that, in high enough doses, leads to death on its own. The second drug paralyzes the condemned person. The third stops his or her heart.
The problem for those who carry out the death penalty is that pentobarbital has become hard to find. U.S. drug companies no longer make it. European drug makers stopped exporting it to the U.S. In its place, Florida last year began using a drug never before tried in the U.S. for executions: Midazolam. That's the same drug used last week in the botched execution in Oklahoma.
Earlier this year, it was used by Florida's Department of Corrections to execute Paul Augustus Howell. That was after Howell went to the Florida Supreme Court, unsuccessfully, to challenge the drug's use in lethal injections. His lawyer, Sonya Rudenstine, says in Howell's case and two earlier executions, the inmates continued to move, even opening their eyes after they were supposed to be unconscious.
SONYA RUDENSTINE: All of that, we have argued, is possible with the use of Midazolam because of the fact it is slow acting. It's a sedative rather than an anesthetic.
ALLEN: Under its protocols, Florida injects inmates with five times the amount of Midazolam as that used in Oklahoma. During last week's execution, Midazolam was administered to inmate Clayton Lockett. He was declared unconscious but afterward writhed and tried to lift his head.
The use of Midazolam has also raised questions in Ohio. It's used there in combination with just one other drug in lethal injections. The first time the drug was used in Ohio was in the January execution of Dennis McGuire.
Mike Brickner, of the Ohio ACLU, says the execution didn't go smoothly.
MIKE BRICKNER: In Mr. McGuire's case, he continued to gasp and his chest heaved and he was twitching all throughout the execution. His actual execution took far longer than the typical execution takes.
ALLEN: Following an investigation, Ohio concluded McGuire died humanely and painlessly. But at the same time, the state decided to increase the dose of Midazolam given to prisoners.
While Florida, Ohio and Oklahoma are the only states that so far have used Midazolam in executions, several others are considering it. What's not clear is how many.
Maurie Levin, a lawyer who represents many death row cases in Texas, says in that state and many others, details about how prison officials choose their drugs and where they get them from are shrouded in secrecy.
MAURIE LEVIN: So if they decide in the future to turn to a drug like Midazolam, which we know they have on hand, we may not even know that they do it.
ALLEN: The problems seen in Oklahoma last week also raise questions about the training of those who oversee the lethal injection process and transparency. Twenty minutes into the execution, when things began to go wrong, prison officials in Oklahoma lowered a curtain so witnesses could no longer see into the death chamber. The execution was cancelled but Lockett died anyway, prison officials say, of a heart attack.
Deborah Denno, a law professor at Fordham University, believes questions raised in that execution will now be taken up in the courts.
DEBORAH DENNO: I think after the Clayton Lockett execution that it's going to be far more difficult for the states to turn a blind eye to requests for these critical pieces of information that attorneys need to know to make a successful challenge to the kind of procedures that are being used.
ALLEN: In a paper released today, the Clinic for Public Health and Policy at Johns Hopkins argues that by experimenting with new lethal injection drugs, Oklahoma and other states may be violating federal law. Whenever a new drug protocol or experiment is undertaken, federal law requires public and private agencies to first submit an application to the FDA.
That hasn't happened with the new lethal injection protocols. It's a legal strategy that's been tried but has renewed relevance as states look for new drugs to use in executions.
Greg Allen, NPR News. Transcript provided by NPR, Copyright NPR.