Oklahoma’s botched execution a teachable moment for nation

By Mark Earley and Jim Petro

Tribune News Service

Last year, government lawyers in Oklahoma made up a new drug cocktail for use in executions in that state. Facing a shortage of drugs to use in back-to-back executions scheduled to take place on the same night in April 2014, the lawyers searched the Internet for ideas. They called some of their colleagues in other states for their views. In the end, these lawyers with the Oklahoma Department of Corrections and the Oklahoma Attorney General’s office decided to use the anti-anxiety drug mida- zolam, 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.

The disastrous consequences of this hasty, ill-conceived decision quickly came to pass. A notoriously botched execution process occurred April 29 and lasted over 40 minutes, while Clayton Lockett writhed, strained, mumbled and tried to rise off the gurney. It represented a failure on the part of Oklahoma officials.

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. The adoption of a new method to execute prisoners must involve careful and thoughtful deliberation, in consultation with medical and other scientific experts.

Use of midazolam

None of that happened in Oklahoma last year. Now the U.S. Supreme Court is preparing to hear Glossip v. Gross, a case based on Oklahoma’s use of midazolam that will evaluate whether the drug caused severe pain, needless suffering and a lingering death.

We know that there may be some who believe that we should not be concerned about the infliction of pain and suffering on those who have committed some of the worst acts of brutality our communities have witnessed. But, we cannot measure our actions against those committed by the condemned. We are not in the business of revenge.

As government officials, we bear great responsibility to ensure that punishments comport with the law. As long as we have a death penalty, executions must not violate the Eighth Amendment’s prohibition against cruel and unusual punishments. And when the method of execution is lethal injection — as it has been for nearly 40 years — officials must ensure that the drugs chosen are capable of causing a humane death, free of the infliction of unnecessary pain.

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 midazolam 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.

This may seem like a technical glitch in the death penalty machine, but it most assuredly is not. When states use multiple drugs for executions, 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. Without a proper dose from an effective first drug, to quote the Supreme Court, there is “a substantial, unconstitutionally unacceptable risk” that the prisoner will suffer extraordinary pain from administration of the second drug, which causes paralysis, and third drug — known as “liquid fire” — which causes cardiac arrest.

The state of Oklahoma itself confesses that it would be unconstitutional to administer the second and third drugs to a conscious person. But it nonetheless went forward to select midazolam to serve as the all-important first drug.

Unscientific process

Oklahoma’s unscientific process violated its solemn duty to carry out lawful punishments. A main basis for the state’s selection of midazolam included a Department of Corrections lawyer’s Internet research in which he “looked on-line” and “Went past the key Wiki leaks or whatever it is” to determine if the state should use the new drug in executions. It also comprised Oklahoma officials’ consultation with officials from Illinois, Texas and Arizona even though none of those states were using midazolam at that time.

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.

Mark Earley, a Republican, served as attorney general of Virginia from 1998 to 2001 and in the Virginia State Senate from 1988 to 1998. Jim Petro, a Republican, served as attorney general of Ohio from 2003 to 2007 and in the Ohio House of Representatives from 1981 to 1984 and again from 1987 to 1990. Distributed by Tribune Content Agency, LLC.