Title : 15 Professors of Pharmacology Tell High Court: Ohio’s Execution Drug is “Profoundly Troubling”
link : 15 Professors of Pharmacology Tell High Court: Ohio’s Execution Drug is “Profoundly Troubling”
15 Professors of Pharmacology Tell High Court: Ohio’s Execution Drug is “Profoundly Troubling”
Today, fifteen prominent professors of pharmacology filed an amicus curiae brief at the U.S. Supreme Court stating that the “record of midazolam-protocol executions is profoundly troubling” and that the sedative midazolam, which Ohio plans to use in the scheduled execution of Ron Phillips on Wednesday morning at 10:00 a.m., is “unsuitable…because it is incapable of inducing unconsciousness and cannot prevent the infliction of severe pain.” (pp. 14-15)
The pharmacologists’ brief references an amicus brief of pharmacologists filed in Glossip v. Gross, and how the scientific consensus that midazolam is not an appropriate drug for use in executions has grown since the U.S. Supreme Court’s ruling in that case, stating:
“Amici previously asserted that there is ‘overwhelming scientific consensus… that midazolam is incapable of inducing’ the intended ‘deep, comalike unconsciousness’ because of its physical properties and mechanism of action. As the District Court’s findings of fact reflect, the evidence supporting this scientific consensus has grown since Glossip. Neither the parties’ legal arguments nor dosage can change the material properties of this drug. ‘An excessive dose of midazolam will not result in unconsciousness.’ From amici’s perspective, the Sixth Circuit’s decision improperly shuts down the judicial scrutiny that this critical issue deserves.” (p. 7)
The Brief of Fifteen Professors of Pharmacology as Amici Curiae in Support of Certiorari: http://bit.ly/2v0hJj1
Attorneys for Mr. Phillips have filed Petition for a Writ of Certiorari and an Application for a Stay of Execution due to the substantial risk of a botched lethal injection execution using midazolam.
Ohio plans to use midazolam as the first drug in a three-drug procedure, along with a paralytic that could mask any pain and distress. Mr. Phillips’ filings at the U.S. Supreme Court can be accessed here:
The Petition for a Writ of Certiorari can be accessed here: http://bit.ly/2u5MCk5
The Application for a Stay of Execution can be accessed here: http://bit.ly/2velXAe
Ohio officials have not carried out an execution for three-and-a-half years, since the 26-minute problematic midazolam execution of Dennis McGuire, where he gasped for air and choked. In Mr. Phillips’ stay motion, attorneys argue that the en banc U.S. Court of Appeals for the Sixth Circuit used the wrong standard of review in overturning the federal district court’s preliminary injunction against Ohio’s controversial lethal injection protocol. The stay request was also filed on behalf Gary Otte and Raymond Tibbetts, the next Ohio prisoners scheduled for execution after Mr. Phillips.
In addition to Mr. McGuire’s execution, midazolam has been implicated in other problematic executions, including that of Clayton Lockett in Oklahoma. On April 29, 2014, Mr. Lockett took 43 minutes to die after being administered the drug. In Arizona, Joseph Wood gasped over 600 times like “a fish on land” during his nearly two hour execution, even after being given fourteen times the legal dose of midazolam on July 23, 2014. Arizona has since announced it will no longer use midazolam. In Alabama, on December 8, 2016, media eyewitnesses to the execution of Ronald Smith reported that he gasped, heaved, coughed, clenched his fists, and appeared to be speaking or trying to speak, for thirteen minutes after midazolam was administered, and moved during his execution in response to the second consciousness check, when he should have been unconscious. At that point, the paralytic and painful, heart-stopping drugs were administered.
Background Re: Lethal Injection Litigation in Ohio
On June 28, 2017, in a closely divided 8 to 6 decision on the Eighth Amendment issue, the U.S. Court of Appeals for the Sixth Circuit overturned the preliminary injunction against Ohio’s controversial lethal injection protocol. That preliminary injunction, issued earlier this year by a federal district court, was initially affirmed on appeal by a divided panel of the Sixth Circuit.
Attorneys for Ohio death row prisoners had argued that the three-judge Sixth Circuit panel correctly upheld the federal district court’s preliminary injunction issued in January 2017. The district court issued a preliminary injunction because it found that the prisoners were likely to succeed at trial on their claim that the use of midazolam as the first drug in a three-drug protocol creates a substantial risk of unconstitutional pain and a substantial risk of serious harm.
On April 6, 2017, the three-judge panel of the U.S. Court of Appeals for the Sixth Circuit upheld the lower federal court’s preliminary injunction against Ohio’s controversial lethal injection protocol that uses the three drugs midazolam, pancuronium bromide, and potassium chloride.
The ruling upheld a January 26, 2017 order of Magistrate Judge Michael R. Merz of the U.S. District Court for the Southern District of Ohio. Judge Karen Nelson Moore and Judge Jane B. Stranch, noted that “the district court in this case evaluated evidence that was not available to the Oklahoma district court in Glossip [v. Gross] (p. 14.)” The opinion states:
“The district court found that Plaintiffs were likely to succeed on their claim that the use of midazolam as the first drug in a three-drug protocol creates a substantial risk of severe pain. There is no dispute that the suffocation caused by the paralytic and the intense burning sensation caused by potassium chloride are excruciatingly painful, just as in Baze [v. Rees] it was ‘uncontested that ... there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride’ if a proper dose of an effective anesthetic is not administered first. This case, like Baze, ‘hinges on’ the efficacy of the first drug in the three-drug protocol. (p. 10)”
The decision from the 3-member panel from the U.S. Court of Appeals for the Sixth Circuit can be accessed here: http://bit.ly/2o6WyH5
On January 26, 2017, after a five-day evidentiary hearing that included testimony from 14 witnesses, Judge Merz issued a 119-page decision granting a preliminary injunction against Ohio’s new lethal injection protocol. The district court’s opinion and order can be accessed here: http://bit.ly/2jtAqV5
In addition to rejecting Ohio’s use of midazolam, Judge Merz also rejected Ohio’s proposed three-drug lethal injection protocol, given prior sworn representations by state officials that it would never again use a three-drug execution method that included a paralytic and potassium chloride.
On October 3, 2016, Ohio officials announced their intention to begin carrying out executions using midazolam plus the two painful drugs they had abandoned in 2009. Since 1994, Ohio's statute governing lethal injection has specified that execution procedures must "quickly and painlessly cause death." Midazolam cannot meet this requirement, since it does not relieve pain and cannot reliably keep a prisoner from regaining consciousness.
For more information, please contact Laura Burstein, Laura.Burstein@Squirepb.com; @LauraBurstein1
Source: Ohioans To Stop Executions, July 24, 2017
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