In early 2014, Oklahoma state officials needed a new execution drug cocktail. Here's how they went about finding one:
[T]he lawyers searched the internet for ideas. They called some of their colleagues in other states for their views. In the end, [they] decided to use the anti-anxiety drug midazolam, which had never before been used in an Oklahoma execution. The total sum of time the state took to adopt a new form of execution was just four days.
Was this enough due diligence in choosing a new execution protocol? For former Attorneys General Mark Earley (R-VA) and Jim Petro (D-OH), the answer is clear: No.
In an op-ed
published yesterday, the former AGs criticize lawyers with the Oklahoma Department of Corrections and Oklahoma Attorney General's Office for their hasty selection of midazolam, which resulted in the botched execution of Clayton Lockett. Lockett took over 40 minutes to die while he "writhed, strained, mumbled, and tried to rise off the gurney."
"As former state attorneys general, the most solemn duty we perform is our oversight of the government's carrying out of the punishments determined by the people of our state," they write. Yet the AGs argue that any serious consideration of midazolam by Oklahoma state officials would have revealed it was a bad choice:
If Oklahoma officials had engaged in proper deliberation and study--and if they had consulted with medical experts--they would have quickly ruled out the use of midazolam as the first crucial drug in the state's three-drug formula. Doctors may prescribe midazalom to ease the anxiety of pre-operative patients. However, the medical and scientific consensus is that it is not a drug that should ever be used as anesthesia during an operation. Midazolam has no pain-relieving qualities. It also has a ceiling effect, above which additional dosing has no additional effect. Thus, no amount of midazolam will produce anesthesia or coma.
The former AGs argue this is important because "the first drug must act as an anesthetic capable of rendering the person unconscious in order for the execution to even be considered a legal or constitutional act."
Midazolam's suitability for use in executions will soon be decided by the U.S. Supreme Court in Glossip v. Gross
, but the AG's end their op-ed by saying we never should have even gotten to this point:
As former elected state officials, we understand the political pressure to avoid delays in carrying out punishments. But such pressures can never trump our primary responsibility to ensure that such punishments are lawful. Any state using midazolam to execute prisoners fails this important balancing test, including Oklahoma.
Jose Cornejo is a recent graduate from the University of Wisconsin.