Because the lethal injection case that will be argued before the Supreme Court will touch on an execution protocol that uses a drug Alabama hopes to use, the outcome there will likely have a direct impact on such cases in Alabama, Chief Judge W. Keith Watkins of the U.S. District Court for the Middle District of Alabama wrote in an order Thursday.
Alabama has 194 inmates on death row, according to the state’s Department of Corrections. That is the fourth-biggest death-row population in the country, trailing only California, Florida and Texas.
The state has not executed anyone since July 2013, when Andrew Lackey was executed for murdering a World War II veteran during an attempted robbery. Last year, Alabama said it had run out of one of its lethal injection drugs. In court filings obtained in September by the Montgomery Advertiser, though, the state said it had turned to a new drug protocol and planned to execute inmates using three drugs: midazolam (a sedative), rocuronium bromide (a paralytic) and potassium chloride (which would stop the heart).
Midazolam is the drug that was involved in three problematic executions last year and is at the center of the case the Supreme Court will hear next month. The justices said they will hear a case challenging the Oklahoma lethal-injection protocol, which was adopted last year after a botched execution in the state drew scrutiny and prompted an investigation.
When the state executed Clayton Lockett last April, its first time using midazolam, he writhed and grimaced before dying 43 minutes after the execution began. Three months later, an Arizona inmate took nearly two hours to die, gasping and snorting before he was declared dead. At the beginning of 2014, Ohio had used the drug to execute an inmate who witnesses said gasped and choked. Oklahoma, Florida, Arizona and Ohio are the only states to use midazolam in executions; after its troublesome execution last year, Ohio said it was dropping midazolam and delayed every execution it had scheduled for this year. (Other states had proposed using the drug, while Missouri has given it to inmates as a sedative before executions.)
These states had turned to the drug due to a shortage of lethal injection drugs that is impacting states across the country. While the death penalty is declining in the United States, with fewer death sentences and fewer executions, the states that do try to carry out executions are turning to experimental and untested drug combinations. It has largely fractured the capital punishment landscape nationwide, forcing states away from the three-drug protocol the Supreme Court upheld when it last considered lethal injection in 2008.
After the botched execution of Lockett, Oklahoma adopted a new policy that still utilizes midazolam, but ramps up the dosage. The increased amount of midazolam means it uses the same amount of the drug that Florida uses in its executions. After the justices took up the Oklahoma case, they also agreed to stay three scheduled executions in that state; last month, Florida’s Supreme Court similarly agreed to postpone executions until the justices rule, arguing that it was sensible to wait since the same drug protocol was being reviewed.
However, other states have charged ahead with executions. In part, this is because these states use wildly different drug protocols. Texas utilizes the drug pentobarbital, and the state says it does not intend to delay any executions because it has had no complications using the drug in dozens of executions since 2012. It also has to do with the rules of the Supreme Court. While it takes five justices to stop an execution, it only takes four to accept a case, which is why the court has turned down requests to stop executions in Texas and Missouri while it prepares to hear a lethal-injection case next month.
A maker of midazolam earlier this month asked Alabama to return any drugs it had obtained and planned to use in an execution. Akorn, a pharmaceutical company based in Illinois, released a statement announcing that it “condemns the use of its products” in executions. The company specifically mentioned midazolam and another drug, hydromorphone hydrochloride, in its statement. Akorn said it had changed its policies so as not to accept any direct orders from prison systems, and it said it was working to make sure these two drugs are not sold to corrections departments.
In addition, Akorn said it sent a letter to attorneys general and directors of corrections departments “seeking the return of any of the company’s products that may have been inappropriately purchased to aid in the execution process.”
Alabama had originally planned to execute William Kuenzel on Thursday, the day Watkins’s order came out, but the state Supreme Court last month stayed his execution.
Watkins wrote in his order Thursday that the state had said it would not oppose a motion to delay executions until after the Supreme Court rules. He said that within two weeks of the Supreme Court’s decision in the Oklahoma case (which is expected in the summer), Alabama officials and lawyers for the condemned inmates will file new statements or motions.