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SCOTUS Should Find Okla. Execution Drug Protocol Unconstitutional, Say Anesthesiologist and Law Prof

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Today, the U.S. Supreme Court heard oral arguments in Glossip v. Gross, a case challenging whether the drug midazolam is suitable for use in lethal injection executions. Glossip, which examines Oklahoma's lethal injection protocol, marks the "second time in seven years that the Court has reviewed a three-drug, lethal injection procedure," the last case being Baze v. Rees(2008).

What makes this three-drug cocktail different from the one the Court reviewed before? Today in The New Republic, an anesthesiologist and law professor provide clarity.

Dr. David Waisel, a professor at Harvard Medical School, and Paul Litton, a professor at the University of Missouri Law School, explain how the protocols differ, and why it matters:

The significant difference between the procedure approved by the Court in Baze and the protocol currently facing scrutiny is the first drug. In the old procedure, Kentucky first administered a barbiturate, sodium thiopental, to produce a "deep comalike unconsciousness," thereby preventing the terror and extreme pain that would otherwise be caused by the subsequent drugs. Barbiturates, when used correctly, induce a deep general anesthesia in which patients do not feel pain. The Court in Baze acknowledged that, without a "proper dose of [the barbiturate] that would render the prisoner unconscious," the protocol would be unconstitutional. But the Court found that Kentucky's procedure included adequate safeguards to ensure delivery of a proper dose of the sodium thiopental and therefore upheld the procedure.
And how the substitution of midazolam for the first drug renders Oklahoma's drug protocol unconstitutional:
Midazolam is a benzodiazepine drug. Its primary clinical use is to provide anxiolysis, amnesia, and sedation. It is not used clinically to induce the type of deep, general anesthesia needed to withstand painful stimuli, and we have good reason to doubt that midazolam, regardless of the size of the dose administered, can reliably produce the "deep comalike unconsciousness" that is necessary to prevent the unconstitutional pain and suffering caused by the potassium chloride in a three-drug lethal injection execution.
The pair ends the piece with an important and often overlooked point: lethal injection is distinct from the death penalty issue--wherever you stand on the death penalty, midazolam, which has been used in several botched executions in the past year, simply doesn't work like it's supposed to in lethal injection executions:
Whether it is rational or ethical to have capital punishment is a question for a different day. Permitting preordained, unnecessary, and excruciating pain and suffering--based on the use of a drug that cannot perform as needed to protect against the harm that the next two drugs unquestionably will cause--assaults prisoners' dignity and demeans us all. It's also unconstitutional.


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Jose Cornejo is a recent graduate from the University of Wisconsin.

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