Supreme Court and States Struggle to Make the Death Penalty More Humane

The high court is taking a close look at a drug that has been tied to botched executions.
(Photo: Jenevieve Robbins/Reuters)
Apr 18, 2015· 3 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

When Dennis McGuire died on an execution table in Ohio last year, he clenched his fists and writhed as onlookers watched for 26 minutes before he drew his last breath. McGuire, who had admitted to raping and killing a pregnant woman in 1989, was visited by a clergy member in the months leading up to his execution. He was there that day and said McGuire resembled a fish washed ashore, gasping for breath.

Though the gruesome incident made headlines, it was hardly a surprise for some.

“I predicted that it would cause a long and agonizing death,” anesthesiologist David Waisel told TakePart. Waisel appeared as an expert witness on behalf of McGuire before his execution—one of several lethal injection cases he has testified in—and told the court the death would be drawn out.

The execution had not gone as planned. After Ohio corrections officials ran out of pentobarbital and the pharmaceutical manufacturer refused to keep selling it for use in lethal injections, the state decided to execute McGuire with a previously untested combination of the sedative midazolam and the painkiller hydromorphone. While midazolam works as a muscle relaxant and sedative to render inmates unconscious before other injections are administered, it has no painkilling properties, Waisel explained.

On April 29, midazolam’s use in lethal injections will take center stage in arguments before the U.S. Supreme Court. The drug gained notoriety last year after botched executions in Ohio, Florida, Arizona, and Oklahoma. At issue is whether the drug can be used as part of a three-drug cocktail without violating the constitutional rights of inmates. Attorneys for the state of Oklahoma will argue in favor of the drug’s role in executions. Defense lawyers representing death row inmate Richard Glossip and others will argue that botched executions like that of Clayton Lockett demonstrate that midazolam’s sedative properties can’t be trusted.

Many Americans may wonder why the highest court in the land is closely considering the last living moments of convicted criminals, some of whom had little mercy for their victims. The principle of a humane execution feels like an oxymoron, but anti–death penalty advocates and the attorneys in Glossip’s case argue it’s the legal responsibility of the state to ensure these deaths are not so painful as to be considered cruel and unusual under the Eighth Amendment of the Constitution.

Like McGuire’s, Lockett’s execution was a drawn-out process marked by visible pain. After midazolam was successfully injected, Lockett appeared unconscious. But when the next two drugs were injected incorrectly, the pain was so extreme that Lockett was roused from his sedated state, according to Megan McCracken, a staff attorney with the Death Penalty Clinic at the University of California, Berkeley, who focuses on lethal injections. Onlookers watched as doctors tried 16 times to inject the final two drugs—vecuronium to paralyze him, and potassium chloride to stop his heart. Lockett writhed and gasped as the executioner fumbled and accidentally inserted a needle into an artery in his groin rather than a vein. He died 43 minutes after the midazolam was injected.

“[Lockett’s] case represents more than maladministration and human error. It shows us the risks with midazolam are real,” said McCracken. “This is certainly the right time for the court to take a very careful look at this issue, particularly given these bungled executions.”

While McGuire’s case involved just two drugs, rather than the three-drug cocktail at issue in Glossip v. Gross before the Supreme Court, his drawn-out death is illustrative of what can go wrong if midazolam fails to fully anesthetize an inmate.

“The concern is that midazolam provides no pain control,” Waisel told TakePart. “Potassium chloride burns a great deal, but it’s hidden from us because the inmate is chemically paralyzed and unable to move their muscles. They may look very serene despite what could be a considerable amount of pain.”

So even in a case unlike Lockett’s, if the paralytic drug works, there is no way to know how much pain an inmate is experiencing should the midazolam not take effect. An inmate could effectively wake up as midazolam’s efficacy fades but appear pain-free because he is paralyzed.

On Wednesday, 12 states led by Alabama filed a friend-of-the-court brief in favor of Oklahoma’s arguments supporting the use of midazolam. The states are waiting for the green light to use various pharmaceutical combinations involving midazolam, in many cases the same combination that killed Lockett.

“It is outrageous for them to argue that lethal injection has too high a risk of pain to be a constitutional method of execution,” wrote Alabama Attorney General Luther Strange. “It is better than they deserve."

Some states have already prepared backup plans in case lethal injection drugs become unavailable or are ruled unconstitutional. As if anticipating the possibility that the court won’t rule in favor of the state, Oklahoma Gov. Mary Fallin on Friday signed a bill to legalize the use of nitrogen gas in place of lethal injections. In this version of the death penalty, a nitrogen gas mask would be placed on the inmate’s face to replace the supply of oxygen, effectively suffocating him to death. The legislator who cowrote the nitrogen gas bill touted it as a quick and painless option—“a fool-proof way for a humane execution.” Utah resurrected the firing squad as a legal execution method in March.

Whether or not the court rules midazolam cannot be used in executions, the legislative success of these alternatives shows the United States isn’t ready to let go of the death penalty yet. The latest numbers from Pew Research Center, released this week, show that 56 percent of Americans support the death penalty for those convicted of murder. While that number marks the majority, Pew reports that support for the death penalty is the lowest it has been in 40 years. In 2011, 61 percent of Americans supported the death penalty, down from 78 percent in 1996. The majority of that decline has occurred among Democrats.

In spite of these other options, it is telling that the court chose to grant the Glossip petition in Oklahoma and hear arguments in this case at all. Numerous other petitions for death row inmates—raising issues such as jury selection, racial bias, and ineffective counsel—are often dismissed, such as that of Missouri inmate Andre Cole, who was executed on Tuesday.