Sedative’s Humaneness and Availability Raise Issues for Executions

Questions surrounding the effectiveness of — and difficulty obtaining — a new sedative used in executions are raising legal challenges.

Questions surrounding the effectiveness of — and difficulty obtaining — a new sedative used in executions are raising legal challenges.

By Christopher Zoukis

Lawyers for a convict scheduled for execution in Virginia Jan. 18 are challenging a newly sourced sedative that the state plans to use in its three-drug protocol for lethal injections. Doubts about the drug’s effectiveness, and the difficulties obtaining it have already caused other states to discontinue its use or postpone executions.

Ricky Javon Gray is scheduled to be executed for the murders of two young girls during a Richmond home invasion in which he also killed their parents. He has also been implicated in three other killings. Gray’s lawyers argue that the state’s method of lethal execution – which uses the sedative midazolam to render the condemned inmate unconscious, followed by the administration of two other drugs — first to effect paralysis and then stop the heart – is so cruel and unusual that it violates the U.S. Constitution’s Eighth Amendment.

They also claim Virginia’s planned first-in-the-nation use of compounding pharmacies to make two of the drugs that it needs for its execution method, purchased at a reported cost of $66,000 for two scheduled executions, calls for review by state appeals courts, and if necessary, by the highest court in the land. Virginia has passed a law allowing the state-regulated compounding pharmacy in question be allowed to keep its identity confidential.

A state appeals court judge will hold a Jan. 3 hearing on the matter. Whatever the ruling, it’s likely to prompt a request to the U.S. Supreme Court for a stay of sentence and a review of the constitutional issue. If the case reaches the high court, it will likely find sharp divisions there. The Court’s 5-4 Glossip v. Gross decision in 2015 rejected a challenge by three Oklahoma death row-inmates to the three-drug protocol.

In several recent executions, inmates given midazolam had protracted and apparently at least semi-conscious deaths, but the high court majority held that the inmates had neither proved the method caused severe pain nor identified a more humane practicable method. Of the four dissenting justices in Glossip, two (Stephen Breyer and Ruth Bader Ginsburg) signaled they’d welcome a case squarely challenging the death penalty as so cruel, arbitrary, error-prone or time-consuming as to be unconstitutional.

Even if use of midazolam survives legal challenges, obtaining it is becoming more difficult. European pharmaceutical firms now routinely refuse to sell products for use in executions, due to a European Union ban on exports for that purpose. And U.S. producers are also reluctant to supply lethal drugs, fearing adverse publicity. Pharmacy groups in this country have also discouraged their members from supplying drugs for lethal injections.

Short supplies and litigation recently led Arizona to drop the use of midazolam, and Ohio has postponed indefinitely its next three executions until a legal challenge to a lethal drug source confidentiality law similar to Virginia’s can be decided. Executions carried out in 2016 have fallen to the lowest level since 1991, with only 20 carried out, and all but four of those took place in just two states, Georgia and Texas, of the 31 states allowing the death penalty.

For some states, like Florida and Oklahoma, 2016 was the first year since the mid-1990s that they have not put any inmates to death. In addition, death sentences were handed down nationwide in only 30 cases, the fewest since 1972. Even so, in this year’s elections residents in three states (California, Nebraska and Oklahoma) voted to reject curbs on capital punishment.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com.