Arkansas Federal Court Rejects Death-Row Prisoners’ Challenge to State’s Use of Midazolam in Executions

U.S. District Judge Kristine Baker on June 1, 2020 denied a chal­lenge brought by Arkansas death-row pris­on­ers to the use of the con­tro­ver­sial drug mida­zo­lam in car­ry­ing out exe­cu­tions. The rul­ing fol­lowed a two-week hear­ing on the issue held in May 2019. Lawyers for the pris­on­ers had argued that mida­zo­lam does not ade­quate­ly anes­thetize a pris­on­er dur­ing an exe­cu­tion before the sec­ond and third drugs, a par­a­lyt­ic drug and a drug that stops the heart, are admin­is­tered. An attor­ney for the pris­on­ers said that the third drug, potas­si­um chlo­ride, inject­ed with­out anes­the­sia, would feel like ​“hav­ing gaso­line poured on you and being set on fire.” 

“The Court can­not con­clude that plain­tiffs have proven that the Arkansas Midazolam Protocol entails a sub­stan­tial risk of severe pain as a result of the use of a 500-mg dose of mida­zo­lam as the first drug in the three-drug pro­to­col,” Baker wrote. As required under the U.S. Supreme Court rul­ing Glossip v. Gross, the pris­on­ers offered alter­na­tive exe­cu­tion meth­ods avail­able to the state that they believed would be less painful, includ­ing the fir­ing squad and pen­to­bar­bi­tal. Baker reject­ed those alternatives. 

Arkansas used Midazolam in car­ry­ing out four exe­cu­tions in April 2017. Facing the expi­ra­tion of its sup­ply of mida­zo­lam, the state had sched­uled an unprece­dent­ed eight exe­cu­tions in an 11-day peri­od that month. However, courts halt­ed four of the executions. 

Testimony at the May 2019 hear­ing on the lethal-injec­tion case focused on prob­lems that occurred in the exe­cu­tions of Kenneth Williams and Marcel Williams. Kelly Kissel, a for­mer Associated Press reporter who has wit­nessed ten exe­cu­tions, pro­vid­ed a detailed time­line of Kenneth Williams’ exe­cu­tion. ​“Three or four min­utes into the exe­cu­tion was where he had the episode in which his body lurched for­ward 15 times in quick suc­ces­sion and then five addi­tion­al times at a slow­er rate,” Kissell tes­ti­fied. ​“It was lurch­ing, jerk­ing, con­vuls­ing.” A phar­ma­col­o­gist who tes­ti­fied said mida­zo­lam begins to lose effec­tive­ness four to eight min­utes after being administered. 

Though Baker ruled against the pris­on­ers on the use of mida­zo­lam, she grant­ed their requests to have an addi­tion­al attor­ney present to wit­ness the exe­cu­tion, and to give attor­neys access to a phone if need­ed dur­ing an execution. 

No exe­cu­tions are cur­rent­ly sched­uled in Arkansas, as the state does not have a sup­ply of exe­cu­tion drugs. In 2019, the state passed one of the nation’s most expan­sive exe­cu­tion secre­cy laws, con­ceal­ing the iden­ti­ty of lethal-injec­tion drug sup­pli­ers from the pub­lic and crim­i­nal­iz­ing dis­clo­sure of exe­cu­tion-relat­ed infor­ma­tion. The law, which went into effect in July, exempts lethal-injec­tion records from the state’s Freedom of Information Act and makes the inten­tion­al or reck­less dis­clo­sure of the exempt­ed infor­ma­tion a felony. The state had sus­pend­ed its search for exe­cu­tion drugs because it said it was unable to obtain the drugs after the Arkansas Supreme Court required the state to dis­close pack­ag­ing labels from exe­cu­tion drugs. Prior to the 2017 exe­cu­tions, sev­er­al phar­ma­ceu­ti­cal com­pa­nies had sued the state for pur­chas­ing exe­cu­tion drugs through decep­tion and violating contracts.