The state of Oklahoma killed Charles Warner on January 15. He was the first inmate executed by lethal injection in the state since the botched execution of Clayton Lockett last April that Prison Warden Anita Trammell described as a “bloody mess.”

 

After Lockett’s mishandled execution, Oklahoma put a moratorium on the death penalty in order to review what went wrong. The state spent over $70,000 renovating its death chamber and another $34,000 to purchase new equipment.

However, the state still included the controversial sedative midazolam in its three drug formula. The use of midazolam came under fire following the bungled executions of Lockett, Dennis McGuire in Ohio and Joseph Wood in Arizona last year. McGuire gasped for air and loudly snorted during his 15 minute long execution, while Wood was injected 15 times and took nearly two hours to die.

Attorneys for Warner sent an appeal to the Supreme Court requesting they stay the execution until the new protocol could be evaluated. But the court denied the appeal with a 5-4 vote.

In her dissent, Justice Sonia Sotomayor wrote that she was, “deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol.” She went on to add, “I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution.”

In Lockett’s execution, the state administered 100 milligrams of midazolam. This dosage was increased to 500 milligrams for Warner, but serious doubt still remains that upping the dosage fixes the problem.

According to Richard Dieter, executive director of the Death Penalty Information Center, “(Oklahoma) has not shown that this drug will produce the necessary level of unconsciousness to allow the execution to proceed humanely.”

During Warner’s appeal, scientific evidence was presented which showed that midazolam is subject to a “ceiling effect” meaning that once it reaches a saturation point, regardless of the dosage amount, it is no longer able to keep someone unconscious. It is likely for this reason that the Food and Drug Administration has not approved it for use as an anesthetic.

One of the main issues that states have faced in recent years, as was made evident in the four botched executions in 2014, is the increased difficulty in finding pharmaceutical companies that are willing to have their drugs used in the death penalty process. Until 2010, states used a drug formula that included the anesthetic sodium thiopental. However, this drug is no longer manufactured in the United States and European companies refuse to sell it for use in executions.

As a result, states are resorting to using new formulas and untested doses. Some states are even obtaining drugs from compounding pharmacies. These companies do not go through the same approval process for their products that large manufacturers face, leading to concerns about the safety and effectiveness of their products.

Unfortunately, these difficulties have not resulted in states re-thinking capital punishment, but have led them to finding alternative ways to carry out executions.

In Oklahoma, the state legislature is expected to consider legislation that would make the use of nitrogen gas, a legal execution method. Tennessee passed a law in 2014 to reinstate the electric chair if the state is unable to secure lethal injection drugs. While in Utah, the state is considering bringing back the firing squad.

It is deeply troubling that while support for capital punishment continues to fall, states are resorting to extreme measures to keep this egregious practice alive. It is becoming more and more difficult for states to find “humane” ways to carry out capital punishment, which is just a further illustration that the death penalty system in our country is not working and is getting worse.

It's time to end this costly, failed system.

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