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Robert Wilbur: Shocking Supreme Court Ruling--Midazolam Allowed for Executions

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Robert Wilbur

In June of this year the Supreme Court handed opponents of the death penalty a crushing defeat. Contrary to all medical evidence, the Supremes ruled, five to four, that the use of midazolam in lethal injection executions did not violate the Eighth Amendment against cruel and unusual punishment. A team of Federal Public Defenders, buttressed by three stellar experts, had sued Oklahoma's Attorney General in Glossip vs. Gross on behalf of the state's death row inmates, who were facing an agonizing fate if the high court did not intervene. At least one of the plaintiffs may be dead by the time you read this article.

The Supreme Court Sees No Cruelty in Controversial Execution Drug by Martha Rosenberg

Midazolam occupies a place on the World Health Organization [WHO] Model List of Essential Medicines, a pharmacopeia of the most important drugs needed by a modern healthcare system. Specifically, midazolam is classified as a preoperative medication and a sedative; it is also used in noxious but not particularly painful procedures like endoscopies and colonoscopies. Executions are not one of WHO's indications, but death penalty states across America are scrambling to incorporate midazolam in execution protocols.

Since the Supreme Court lifted its moratorium on executions in 1976, 1202 men and women have been killed with a three-drug cocktail devised by an Oklahoma medical examiner, A.. Jay Chapman, MD, as a more humane way of dispatching miscreants (and an unknown number of innocent prisoners) than the electric chair, the gas chamber, or the firing squad. Chapman's brew, served up by catheters placed in the veins, consists of an anesthetic, a drug to paralyze the skeletal muscles including those of breathing (pancuronium bromide or a related drug) and a drug to stop the heart (potassium chloride).

Without an anesthetic to put the condemned person in a profound sleep, Chapman's cocktail would be worthy of Torquemanda, Spain's Grand Inquisitor because the paralytic would create a sensation of suffocation and the potassium chloride would make the condemned person feel as if his whole body were on fire. I made three attempts to interview Chapman for his opinion on the use of midazolam but he did not return my calls.

Until 2010 the anesthetic in the Chapman cocktail was thiopental, an ultra-short-acting barbiturate. At that point, the sole manufacturer of thiopental, a Illinois-based generic house (Hospira), ran out of raw materials and decided to get out of the execution business rather than import the ingredients. Some states had enough thiopental on hand to continue the killing for several more years; other states switched to pentobarbital, another powerful barbiturate. Execution states whose cup runneth over shared these anesthetics with states whose supplies were depleted, but ultimately everybody ran out of thiopental and pentobarbital. Hospira was out of the running and the Danish pharmaceutical firm of Lundbeck cut off access to pentobarbital when it found out that its product was being used for executions. The death penalty states sought a new anesthetic and ultimately settled on midazolam.

Midazolam is not a barbiturate; it is a benzodiazepine like Valium, Klonopin, and Xanax, but with a much shorter duration of action. So far there have been five executions with midazolam, all botched. To find out why, I talked first with Jonathan Groner, MD, a practicing pediatric surgeon and Professor of Clinical Surgery at Ohio State University's medical school. Dr. Groner told me that he uses midazolam all the time to quickly calm children before taking them up to the O.R. Not only is midazolam a rapid-acting sedative, it is also an anamnestic - that is, an agent that erases the memory of being prepared for surgery. Dr. Groner emphasized that midazolam is not an analgesic (a pain killer) and it is not an anesthetic, in contrast to thiopental and pentobarbital. The suffocating sensation of the paralytic and the excruciating pain of potassium chloride would surely awaken the condemned...assuming the midazolam had not already begun to wear off. Dr. Groner told me that he was an abolitionist since the 1990s and deplored the "medicalization" of capital punishment.

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If midazolam is so ill-suited to executions, why are the states adopting it? An alternative might be the powerful anesthetic propofol, but the European Union, whose members have banned capital punishment, threatened Draconian export controls which would have resulted in severe propofol shortages in the US (85% of propofol that's used in the United States is manufactured by the German firm of Fresenius Kabi.) Dr. Groner said this would be a disaster because propofol is a fundamental drug in anesthesiology.

The states were driven to adopt midazolam by desperation, said Larry Sasich, PharmD, MPH, a consulting pharmacologist who has studied midazolam. Dr. Sasich was one of three experts whose clinical wisdom was ignored by the Supreme Court in Glossip vs. Gross. Dr. Sasich, and who opposes the death penalty in any form. He told me that when he was approached by the Federal Public Defenders to serve as an expert in their upcoming suit, he was "dumbfounded" that any state would consider using midazolam as an anesthetic.

Like all benzodiazepines, midazolam can cause paradoxical reactions - people can become anxious, agitated and aggressive about 0.1% of the time. Dr. Sasich has witnessed this himself, he says; in one case a young woman experienced a paradoxical reaction and screamed to have her colonoscopy tube removed.

A second property problem is midazolam's "therapeutic ceiling"-- once the manufacturer's approved dose is attained, injecting more midazolam will have no effect. This means that it is pharmacologically impossible to achieve an anesthetic level of midazolam in the brain, no matter how much midazolam the executioner pumps in. No witnesses will know how much the condemned person is suffering because all of his muscles are paralyzed, so he can't cry out. That is the punishment which the Supremes found not to be cruel or unusual in June.

To get a take on the court's decision, I spoke with Steven D. Schwinn, Associate Professor of Law at John Marshall Law School. Professor Schwinn is an outspoken abolitionist who deplored the court's ruling as "sinful."

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"They mucked it up," Schwinn told me. How I asked him. "By putting the burden on the challengers to produce a less cruel way than midazolam." To quote Adam Liptak in the June 29, 2015 New York Times, "Justice Samuel Alito Jr. writing for the majority, said the inmates had failed to identify an available and preferable method of execution and failed to make the case that the challenged drug [midazolam]entailed a substantial risk of severe pain."

Schwinn explained that, by ignoring the scientific evidence on midazolam, the court in effect authorized the states to experiment in ways of killing people. Professor Schwinn had scathing contempt for Oklahoma's sole expert, Roswell L. Evans, PharmD. Evans' credentials can be found in the Writ of Certiorari of this case. He is a dean at the school of pharmacy at Auburn University, where his scholarship pertains to pharmacy education, teaching and economics. Schwinn told me that he got a crucial fact wrong, namely that midazolam has a ceiling effect, and Oklahoma had to retract this piece of his contribution, but it didn't seem to trouble the Supreme Court that Evans was the best Oklahoma could produce. Schwinn summed up the court's decision: "It was an ugly ruling."

Capital punishment defenders must now adapt to this ugly ruling. One such lawyer is abolitionist Jeff Rosenzweigh of Little Rock, Arkansas. Arkansas may be the next battleground in the fight against the death penalty, with 37 men on death row, of whom seven have exhausted their appeals and face imminent execution. Arkansas' Attorney General acknowledges that he has bought the requisite drugs (including midazolam) but he won't identify the source. Abolitionist Rosenzweigh has taken Arkansas into court to find out.

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Martha Rosenberg is an award-winning investigative public health reporter who covers the food, drug and gun industries. Her first book, Born With A Junk Food Deficiency: How Flaks, Quacks and Hacks Pimp The Public Health, is distributed by Random (more...)

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