Midazolam and the Lethal Injection – ‘In re: Ohio Execution Protocol Litigation’
On January 26 2017, a federal court in Ohio ruled that its current execution method is unconstitutional. This was on the basis that the use of the first drug in its three-drug protocol, midazolam, would create a “substantial risk of serious harm” or an ”objectively intolerable risk of harm” in violation of the Petitioners’ Eighth Amendment rights. The case named three Petitioners, but has since led to Ohio’s Governor putting a total of eight executions on hold.
The Controversial Drug: Midazolam
At the centre of the District Court for the Southern District of Ohio’s decision is the controversial use of the drug midazolam in the lethal injection. Midazolam has been used as part of the execution procedure in a number of states, and is purported to be the anaesthetic used to render the person being executed insensate to pain. However, several botched executions have taken place across different states in the US following the use of midazolam. In Ohio, midazolam was used for the first time to execute Dennis McGuire on January 16 2014 as part of a two-drug cocktail. McGuire’s execution lasted 24 minutes, with witnesses reporting he “started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes.” Joseph Wood was injected 15 times with midazolam and was seen “gasping and gulping” when he was executed on July 23 2014 in Arizona. When Rick Javon Gray was executed in Virginia in January 2017, his lawyers witnessed him “turn his head from side to side” following the injection of midazolam.
Another state embroiled in the midazolam row is Oklahoma. In April 2014, Clayton Lockett was executed using a three-drug lethal injection including midazolam. After the injection was administered, Lockett “thrashed on the gurney, writhing and groaning” and he died 43 minutes later of a heart attack. The botched execution gained worldwide media attention and even the White House condemned the execution, saying that it “fell short of humane standards.”
Midazolam and the Courts
The case in Ohio is not the first to come before the courts challenging the use of midazolam. In 2015, the Supreme Court of the United States heard arguments on this very issue in Glossip v. Gross. The case was initiated by five Petitioners in Oklahoma following the botched execution of Clayton Lockett. However, on June 29 2015 the Supreme Court held in a 5-4 majority that the Petitioners had failed to show that midazolam ”entailed a substantial risk of severe pain” and therefore its use in the lethal injection protocol in Oklahoma was not unconstitutional.
The ruling of the Ohio federal court in January was in direct conflict with the precedent set in the Glossip case. Although Judge Merz found that the Supreme Court’s opinion in Glossip did not “logically imply that it can never be proven that midazolam presents an objectively intolerable risk of harm,” the Ohio court was bound to follow the decision of the Supreme Court. As such, the State of Ohio has appealed the District Court’s decision, with oral arguments before the 6th Circuit Appeals Court taking place on March 7 2017. A decision from the Appeals Court is expected in late March. However, should the case make its way to the Supreme Court, the outcome would likely be the same as in the Glossip case given President Trump’s Supreme Court nominee Neil Gorsuch taking a pro-death penalty stance similar to that of Justice Scalia.
Instead, what the Ohio case further evidences is that the death penalty in the United States is in a period of instability. The shortage of execution drugs has led to executing states having a number of different lethal injection protocols, Florida’s death penalty has been in chaos following its capital statute being struck down as unconstitutional, and all executions in Oklahoma are on hold until new lethal injection protocols are investigated and approved. Therefore, regardless of the outcome of the litigation, the decision from the Ohio federal court has halted executions in the state and reintroduced the issue of the contentious use of midazolam, which is another important step forward for the death penalty abolition movement.