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.