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| When a Common Sedative Becomes an Execution Drug | When a Common Sedative Becomes an Execution Drug |
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| TUCSON — When a chemist named Armin Walser helped invent a sedative more powerful than Valium more than 40 years ago, he thought his team’s concoction was meant to make people’s lives easier, not their deaths. | TUCSON — When a chemist named Armin Walser helped invent a sedative more powerful than Valium more than 40 years ago, he thought his team’s concoction was meant to make people’s lives easier, not their deaths. |
| Yet decades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States. | Yet decades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States. |
| “I didn’t make it for the purpose,” Dr. Walser, whose drug has been used for sedation during 20 lethal injections nationwide, said in an interview at his home here. “I am not a friend of the death penalty or execution.” | “I didn’t make it for the purpose,” Dr. Walser, whose drug has been used for sedation during 20 lethal injections nationwide, said in an interview at his home here. “I am not a friend of the death penalty or execution.” |
| Midazolam’s path from Dr. Walser’s laboratory into use in at least six of the country’s execution chambers has been filled with secrecy, political pressure, scientific disputes and court challenges. | Midazolam’s path from Dr. Walser’s laboratory into use in at least six of the country’s execution chambers has been filled with secrecy, political pressure, scientific disputes and court challenges. |
| The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock. | The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock. |
| In Arkansas, where no prisoner has been put to death since November 2005, midazolam is planned as the first of three drugs in the state’s lethal injections. The drug is intended to render a prisoner unconscious and keep him from experiencing pain later in the execution, when other drugs are administered to stop the breathing and heart. | |
| Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by the execution drugs. | Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by the execution drugs. |
| A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there. | A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there. |
| “The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” | “The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” |
| States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.” | States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.” |
| The relatively recent emergence of midazolam at the center of far-reaching legal battles has startled Dr. Walser, who was working in New Jersey for Hoffmann-La Roche, a Swiss pharmaceutical company, when he helped to invent the drug in the 1970s. It was a water-soluble alternative to Valium, and, as Dr. Walser recounted in a company publication, the discovery “required the coincidence of several events and also a portion of luck.” | The relatively recent emergence of midazolam at the center of far-reaching legal battles has startled Dr. Walser, who was working in New Jersey for Hoffmann-La Roche, a Swiss pharmaceutical company, when he helped to invent the drug in the 1970s. It was a water-soluble alternative to Valium, and, as Dr. Walser recounted in a company publication, the discovery “required the coincidence of several events and also a portion of luck.” |
| Midazolam was patented in 1979, a few years after it was synthesized, and evolved into a medical star. An anesthesiology textbook described midazolam, sometimes referred to as Versed, as “the most frequently used benzodiazepine in the elderly,” and in 2011 the World Health Organization added the drug to its Model List of Essential Medicines. | Midazolam was patented in 1979, a few years after it was synthesized, and evolved into a medical star. An anesthesiology textbook described midazolam, sometimes referred to as Versed, as “the most frequently used benzodiazepine in the elderly,” and in 2011 the World Health Organization added the drug to its Model List of Essential Medicines. |
| But court filings and depositions show that by the time of the W.H.O.’s decision, American corrections officials were more than a year into their consideration of midazolam for a new purpose: sedating condemned prisoners for execution. In 2009, Ohio adopted midazolam as part of its backup execution protocol. | But court filings and depositions show that by the time of the W.H.O.’s decision, American corrections officials were more than a year into their consideration of midazolam for a new purpose: sedating condemned prisoners for execution. In 2009, Ohio adopted midazolam as part of its backup execution protocol. |
| It was a matter of years before midazolam went from being part of a backup procedure in a single state to a crucial drug in at least six, as prison systems increasingly struggled to buy the barbiturates they had long used to sedate prisoners for executions. In 2013, Florida added midazolam to its execution protocol and became the first state to carry out an execution involving the drug. | It was a matter of years before midazolam went from being part of a backup procedure in a single state to a crucial drug in at least six, as prison systems increasingly struggled to buy the barbiturates they had long used to sedate prisoners for executions. In 2013, Florida added midazolam to its execution protocol and became the first state to carry out an execution involving the drug. |
| “The way executions have proceeded in the United States has been, in a sense, through the herd mentality: One state does something and it appears to work, and others hop on board,” said Robert Dunham, the executive director of the Death Penalty Information Center, a research group. | “The way executions have proceeded in the United States has been, in a sense, through the herd mentality: One state does something and it appears to work, and others hop on board,” said Robert Dunham, the executive director of the Death Penalty Information Center, a research group. |
| Most executions involving midazolam drew little sustained criticism, but problems emerged during some. In Ohio, a murderer’s execution took longer than previous injection-induced deaths in the state. Testifying later in Federal District Court in connection with a lawsuit over Ohio’s lethal injection protocol, a reporter said the prisoner had been “coughing, gasping, choking in a way that I had not seen before at any execution.” | Most executions involving midazolam drew little sustained criticism, but problems emerged during some. In Ohio, a murderer’s execution took longer than previous injection-induced deaths in the state. Testifying later in Federal District Court in connection with a lawsuit over Ohio’s lethal injection protocol, a reporter said the prisoner had been “coughing, gasping, choking in a way that I had not seen before at any execution.” |
| Midazolam was also used in an execution in Oklahoma that state officials said had gone awry because of an improperly placed intravenous line. Critics said the episode still proved the inadequacy of midazolam’s effectiveness during lethal injections. | Midazolam was also used in an execution in Oklahoma that state officials said had gone awry because of an improperly placed intravenous line. Critics said the episode still proved the inadequacy of midazolam’s effectiveness during lethal injections. |
| And in Arizona, the execution of Joseph R. Wood III took nearly two hours, long enough that a federal judge was holding an emergency hearing about the matter at the moment Mr. Wood died. | And in Arizona, the execution of Joseph R. Wood III took nearly two hours, long enough that a federal judge was holding an emergency hearing about the matter at the moment Mr. Wood died. |
| An outside review commissioned by the Arizona Department of Corrections “found no breakdowns in the implementation of the process or the mechanical systems supporting the execution,” and the department’s director said Mr. Wood was “fully sedated, was totally unresponsive to stimuli and as a result did not suffer.” | An outside review commissioned by the Arizona Department of Corrections “found no breakdowns in the implementation of the process or the mechanical systems supporting the execution,” and the department’s director said Mr. Wood was “fully sedated, was totally unresponsive to stimuli and as a result did not suffer.” |
| Arizona later agreed that it would “never again use midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection execution.” | Arizona later agreed that it would “never again use midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection execution.” |
| In some ways, Arizona’s pledge, in December, was unsurprising: Earlier last year, the state had said its midazolam supply had expired, and pharmaceutical companies have tried to curb the drug’s use for lethal injections. Dr. Walser’s former employer, for instance, said in 2015 that it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose.” | In some ways, Arizona’s pledge, in December, was unsurprising: Earlier last year, the state had said its midazolam supply had expired, and pharmaceutical companies have tried to curb the drug’s use for lethal injections. Dr. Walser’s former employer, for instance, said in 2015 that it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose.” |
| “Drugs are supposed to be used to cure people, to help them, and I’m surprised that any drug is used to kill people,” said Dale A. Baich, an assistant federal defender in Phoenix who witnessed Mr. Wood’s execution and helped to negotiate the banishment of midazolam from Arizona’s lethal injections. | “Drugs are supposed to be used to cure people, to help them, and I’m surprised that any drug is used to kill people,” said Dale A. Baich, an assistant federal defender in Phoenix who witnessed Mr. Wood’s execution and helped to negotiate the banishment of midazolam from Arizona’s lethal injections. |
| But the drug’s critics have found limited solace in the courts, including the Supreme Court, which last month declined to hear cases from Alabama and Arkansas, both of which include midazolam in their lethal injection protocols. Those moves amounted to reinforcement of a ruling in 2015, when Justice Samuel A. Alito Jr., writing for a divided court, noted that the court had found “that the Constitution does not require the avoidance of all risk of pain.” | But the drug’s critics have found limited solace in the courts, including the Supreme Court, which last month declined to hear cases from Alabama and Arkansas, both of which include midazolam in their lethal injection protocols. Those moves amounted to reinforcement of a ruling in 2015, when Justice Samuel A. Alito Jr., writing for a divided court, noted that the court had found “that the Constitution does not require the avoidance of all risk of pain.” |
| He continued: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.” | He continued: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.” |
| Indeed, some supporters of the death penalty, including people who have witnessed executions that included midazolam, have defended lethal injections and any pain they might cause violent offenders. | Indeed, some supporters of the death penalty, including people who have witnessed executions that included midazolam, have defended lethal injections and any pain they might cause violent offenders. |
| Proponents also acknowledge that midazolam is far from a drug of choice for executions, but they blame abolitionists for effectively leaving states with limited choices. | Proponents also acknowledge that midazolam is far from a drug of choice for executions, but they blame abolitionists for effectively leaving states with limited choices. |
| “No state would use it if they could get the barbiturates,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. “The opponents have created the situation where states are forced to use a drug that is not the optimum.” | “No state would use it if they could get the barbiturates,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. “The opponents have created the situation where states are forced to use a drug that is not the optimum.” |
| Some people have already begun to wonder when or whether another drug will materialize as a substitute for midazolam, a development they predicted would lead to more contentious litigation. | Some people have already begun to wonder when or whether another drug will materialize as a substitute for midazolam, a development they predicted would lead to more contentious litigation. |
| In Tucson, where Dr. Walser excitedly sketched organic structures on his patio on a recent morning, the retired chemist has been left to grapple, uncomfortably, with what has come of his team’s innovation. He said he hadn’t known about midazolam’s use in executions until a reporter from Oklahoma called him in 2015. | In Tucson, where Dr. Walser excitedly sketched organic structures on his patio on a recent morning, the retired chemist has been left to grapple, uncomfortably, with what has come of his team’s innovation. He said he hadn’t known about midazolam’s use in executions until a reporter from Oklahoma called him in 2015. |
| “I didn’t feel good about it,” he recalled. Then, with resignation, he said, “The doctors can do with it what they want.” | “I didn’t feel good about it,” he recalled. Then, with resignation, he said, “The doctors can do with it what they want.” |