Warner v. Gross, No. 14-6244 (10th Cir. Jan. 12, 2015).
Last April, Oklahoma executed Clayton Lockett. It didn’t go well. After twelve unsuccessful tries, the executioners finally inserted the IV drip. Three minutes after the lethal drugs were injected, Lockett twitched, lifted his head and shoulders off the gurney, and began to speak. The execution was halted, but Lockett soon died of what the prison warden later described as a “massive heart attack.” The execution was botched because some of the IV fluid pooled near the injection site rather than entering Lockett’s blood stream directly.
Oklahoma has since revised its execution procedures so that an execution may be postponed if viable IV sites can’t be established within an hour of the scheduled execution. Oklahoma has also ordered that the executioners receive more training. But the state continues to use midazolam, the tranquilizer that was also used in Lockett’s execution.
A group of death-row inmates has challenged the constitutionality of Oklahoma’s new lethal injection procedures, particularly its continued use of midazolam. Midazolam, say the inmates, is disqualified both by its “ceiling effect” and its risk of “paradoxical reactions.” A ceiling effect means that after a certain dose, the effects of midazolam don’t increase—i.e., the mere fact that a dose of midazolam is big doesn’t mean much. Paradoxical reactions refer to reactions that are exactly what you wouldn’t expect from a tranquilizer: agitation, involuntary movements, hyperactivity, and combativeness.
In court, Oklahoma’s medical expert testified that midazolam’s ceiling effect only reduces its effectiveness in the spinal cord. There’s no ceiling effect, he said, in the drug’s ability to “effectively paralyze the brain,” which eliminates the inmate’s awareness of pain. The expert also testified that, even with a low dose of midazolam, there’s only about a one percent chance of paradoxical reactions. The expert added that there was no data about what a large dose of midazolam—like the dose Oklahoma was proposing to use—might do.
The district court denied the inmates’ request for a preliminary injunction, and the Tenth Circuit now affirms. The inmates challenge the district court’s reliance on Oklahoma’s medical expert, but the Tenth Circuit—reviewing the district court deferentially—says the district court didn’t abuse its discretion or make clearly erroneous findings of fact. One may well be troubled by the lack of data about whether a large dose of midazolam might cause paradoxical reactions—but since the burden of proof is on the inmates, that lack of evidence hurts their case rather than helping it.
UPDATE (1/15/15): The Supreme Court today denied an application for stay of execution filed by Charles Warner, the lead plaintiff in this litigation. Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, wrote a dissent from the denial. She notes a troubling fact that the Tenth Circuit did not: Oklahoma’s medical expert “cited no studies, but instead appeared to rely primarily on the Web site www.drugs.com.” Yikes. She also highlights a conflicting expert affidavit submitted by the prisoners stating that the “ceiling effect” (see above) does have an impact on the brain—indeed, that the ceiling effect does not occur in the spinal cord, contrary to what Oklahoma’s medical expert claimed.