Facing a critical shortage of drugs to carry out executions, Virginia’s Department of Corrections has approved the use of a new chemical for lethal injections.
Midazolam, which is used in surgery to calm patients and induce sleepiness, will serve as an alternative first drug in Virginia’s three-drug protocol, according to the corrections officials. It will stand in for pentobarbital or thiopental sodium, drugs that states across the country have found difficult to acquire as manufacturers have started refusing to sell their products for use in executions.
That shortage prompted a failed attempt in Virginia’s legislature this year to allow the use of the electric chair as a backup when lethal injection is unavailable.
Midazolam is not free of controversy, however. It was one of the two drugs used in Ohio last month in an execution that took 24 minutes. The inmate’s family has sued a drug company, alleging that his prolonged death amounted to cruel and unusual punishment.
Records show that in the fall, Virginia corrections officials purchased several doses of both drugs used in the Ohio execution. But the two-drug protocol is not yet authorized for use in Virginia; nor has the department announced a switch from a three-drug to a two-drug method.
“There are no plans to move to the two-drug protocol used in Ohio,” said Lisa Kinney, spokeswoman for the Department of Corrections.
Across the country, states are struggling to procure the drugs necessary to perform lethal injections. Manufacturers in Europe and at least one major U.S. manufacturer have refused to sell drugs for use in capital punishment.
In Virginia, where the pace of executions has declined precipitously in recent years, the drug shortage has not yet held up executions, according to corrections officials. Although the state has executed 110 inmates since the death penalty was reinstated in the 1970s and is second only to Texas in overall executions, there are only eight inmates on death row, and none are scheduled for execution. Only one inmate was executed last year, and none were executed the year before.
Only one state, Florida, has used midazolam as the first drug in a three-drug protocol. According to the Associated Press, the first time the drug was used, it appeared that the condemned man “remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.”
The Florida Supreme Court has ruled the use of midazolam constitutional, finding that its use does not pose “a serious risk of needless suffering or sufficient imminent danger in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.” After a subsequent challenge, the court ordered further hearings on the drug and again upheld its use. The inmate who filed the challenge plans to appeal to the U.S. Supreme Court.
Louisiana and Kentucky also have indicated that they are considering using midazolam.
“It’s all being forced by this availability problem,” said Richard Dieter of the Death Penalty Information Center, a nonprofit group that opposes the death penalty. “They want to show that they’re ready when the time comes, even when it means using something that’s been relatively unproven, that’s only been used a few times.”
During debates and hearings on the electric chair legislation, several lawmakers on both sides of the aisle expressed skepticism that a return to electrocution was the only solution to the drug shortage. “I’m not persuaded that there is a critical shortage or that it can’t be addressed,” said state Sen. Mark Obenshain, R-Harrisonburg, a death penalty supporter.
The bill was ultimately carried over for the year in a Senate committee.
State Sen. Charles Carrico Sr., R-Grayson, who introduced the electric chair bill, said he believes the discussion prompted the approval of the new drug. “I think it is a response,” he said. “If they can make it work, that’s fine by me.”
Some critics wondered why corrections officials didn’t mention the drug during the debate over using the electric chair.
“It appears the Department of Corrections attempted to mandate electrocutions without giving the legislature full information about a very serious issue,” said state Del. Scott Surovell, D-Fairfax. “While the department has a duty to implement the law, it is not their job to advocate for or against a specific method of executing human beings.”
The state’s supply of all the drugs currently authorized for use in executions, including midazolam, will expire in the spring of 2015, Kinney said.