The Worst of Lethal Injection Strikes Again Today
The formula that Oklahoma will use to kill Michael Smith is responsible for lethal injection's most horrifying failures.
Today, barring relief from SCOTUS or Oklahoma governor Kevin Stitt (both so improbable as to barely merit mention), the state will kill Michael Smith for the murders of Janet Moore and Sharath Pulluru in 2002. As with most capital cases, Smith maintains a legal argument meant to preclude his execution—in this case, innocence—that is beyond our scope here. That Oklahoma may be putting an innocent man to death, however, is not the only horror of the day’s events: the leader in American state homicide is using the lethal injection formula most likely to result in torturous executions, the state knows that, and it’s pressing on anyway.
A Brief History of Modern Oklahoma Executions
Though Oklahoma wasn’t the first state to perform an execution by lethal injection, it can claim the dubious honor of inventing the method. In the mid-1970s rush to reinstate capital punishment following the Furman v. Georgia-imposed moratorium, state lawmaker Bill Wiseman found himself at a crossroads between his conscience and political survival. A Quaker-educated preacher’s kid, Wiseman doubted both the ethical and practical case for capital punishment but found his district’s support for a bill complying with SCOTUS requirements for death sentences at 90%. Like reformers before him, Wiseman felt the best he could do was make executions more humane, and after talking with the state’s chief medical examiner (despite the latter’s lack of qualifications) came up with a three-drug formula.
The small amendment to Oklahoma’s new death penalty bill caught the attention of several other states, and it wouldn’t be long before other states would adopt the idea—a day later, in Texas’s case. Their southern neighbor would be the first to put the method to use (and, potentially, to botch it) but, by the end of the century, Oklahoma would overtake it in per-capita executions, a distinction it still holds.
The simple formula went as such: a sedative, a neuromuscular blocking agent (commonly known as a paralytic) and potassium chloride, which in excess doses terminates the heart’s ability to contract. The sedative was key to Wiseman’s claims to humane executions: without it, a paralytic would freeze a person’s ability to breathe but wouldn’t affect their consciousness, an unquestionably torturous outcome. For that sedative, Oklahoma and the states that followed turned to sodium thiopental, a leading drug in the still-young field of anesthesiology.
The Mother of Invention
For three decades, lethal injection rode largely sanguine public opinion, rising approval of the death penalty in general, and the ready availability of drugs as opposed to other methods to become America’s leading execution method despite the problem becoming apparent to those in the know. However, the 21st century saw significant revolt from the medical and pharmaceutical communities, who had always opposed participation in executions but found increasingly toothsome ways to demonstrate it. When sodium thiopental manufacturer Hospira was forced to move production out of America, all of its prospective new host governments insisted on banning the sedative’s use in executions. Unable to make this guarantee due to the nature of the pharmaceutical market, Hospira was forced to pull the drug from the US market (including for its legitimate medical uses, even though it was at the time a WHO Essential Medicine.)
The loss of their preferred sedative sent lethal injection states scrambling. Some tried to ensure they could kill death row prisoners via back-alley drug deals oddly similar to the kind that created gen-pop inmates. Some turned to compounding pharmacies, which manufacture made-to-order drugs but aren’t required to guarantee quality or purity. Many experimented with pentobarbital, including Oklahoma, though the results weren’t much better. What Oklahoma ultimately settled on was replacing its sodium thiopental with a benzodiazepine, midazolam.
Had Oklahoma cared to listen to experts, it might have known this was a problem:
Midazolam has limited use as an induction agent. The most recent rapid-sequence-intubation2-performing service I worked for listed it as the third-line induction agent, and the first study to analyze its anesthetic potential recommended it only for minimally invasive procedures like endoscopies and dental work; current guidance recommends it only as an adjuvant, or supplement, to more effective drugs. Importantly, midazolam has no analgesic properties, and potassium chloride is well-known to burn intensely: one study noted therapeutic infusions reported pain at rates above 20 mmoL per hour, while Oklahoma’s lethal injection protocol pushes 6,000 times that “immediately.“ While the subjective nature of pain means that the relationship between pain level and sedation success is not concrete, there’s some evidence that procedures typically described as more painful result in more sedation failures.
And, following the Clayton Lockett execution, the experts would come: consulted for Richard Glossip’s challenge of the formula, a coalition of 14 pharmacists, scientists and physicians explained1 that midazolam’s effect on the neurotransmitter GABA was limited by the latter’s amount in the body, creating a “ceiling effect” that brain wave analysis proved wasn’t up to the task.
“Something’s Wrong“
Though these arguments were well-known at the time, they weren’t enough to stop Lockett’s execution, which would go on to become the most notorious botched execution in the method’s history. For more than 45 minutes, Lockett writhed on the lethal injection gurney, moaning, straining against his straps, and even speaking at one point. Though blame was justifiably placed on the failure to secure an IV, the ensuing controversy caused the state to pause executions for a protocol review.
Once executions resumed, however, the results weren’t better. Charles Frederick Warner openly said his “body [was] on fire,“the midazolam doing nothing to stop the chemical burn coursing through his veins. John Grant choked on his own vomit. Anesthesiologist Joel Zivot eventually discovered that midazolam-based protocols produced pulmonary edema, which creates a drowning-like sensation, in 80% of executions, suggesting that paralytics may be hiding even higher rates of state-sanctioned torture.
Oklahoma Doesn’t Care, and No One Can Make Them
As so often happens on this beat, however, the state has responded largely by either lying or outright not caring. When Lockett’s challenge of the then-untested cocktail and its state-secret provenance initially prevailed at the state level, then-Governor Mary Fallin outright ignored them, while the legislature began an impeachment effort against the justices who voted for a stay. The state declared Grant’s execution a total success, accusing eyewitnesses of “embellished“ accounts even though they were consistent with the autopsy.
The courts have not stopped them, either. When those 16 pharmaceutical experts submitted their brief in Glossip’s case, the state responded with a brief from a single pharmacist, nearly half of which consisted of printouts from Drug.com; the Supreme Court sided with the latter. Nor does public opinion seem to have turned on the method—it still enjoys broad popularity despite being the worst of the methods polled.
No formula ensures a humane lethal injection with the reliability we’d expect of any other procedure, but Oklahoma’s is by far the worst of a bad bunch. Unfortunately, there are neither signs they intend to stop nor any remaining guardrails to make them do so.
The link here is not to the pharmacists’ brief in Glossip but to an updated version submitted for Bucklew v. Precythe.
The death penalty needs to be abolished.