The sedative midazolam at a hospital pharmacy in Oklahoma City.
TUCSON, Ariz. — 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.
“I didn’t make it for the purpose,” 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 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 death chamber at the Southern Ohio Corrections Facility in Lucasville, Ohio.
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.
Supporters of midazolam’s use, which the U.S. 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 a paralytic drug.
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.”
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.”
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 U.S. 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.
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 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 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.”
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. 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 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.”
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.”