On the night of December 8, 2016, the state of Alabama carried out the lethal injection execution of Ronald Bert Smith Jr. (pictured left), who was convicted of murdering a convenience store clerk in 1994. Shortly after the executioner administered midazolam—the first chemical in a three-drug cocktail—Smith struggled for breath, heaved, coughed, clenched his fist, raised his head, and opened his left eye. His lips also moved, but he could not speak, and he appeared to react to both “consciousness tests” that a prison guard performed. However, prison officials went ahead with the execution anyway, administering chemicals to paralyze Smith and stop his heart.
The Supreme Court permitted the use of midazolam in a 5–4 decision in 2015, though the drug appears to have caused multiple botched executions by failing to render an inmate truly unconscious. In dissent, Justice Sonia Sotomayor noted that the three-drug cocktail administered to Smith may be “the chemical equivalent of being burned alive.”
Hours before his execution, Smith had asked the Supreme Court to halt his execution given the known problems with midazolam. The court refused. It seems quite likely that Smith was at least partly conscious when he was given the second and third chemicals of the cocktail. If so, he experienced a slow and brutally agonizing death but could not express his pain because the second chemical had paralyzed him.
Ronald Smith’s jury had voted to spare his life, sentencing him to life in prison by a 7-5 vote, but the trial judge in the case overrode the jury’s verdict and sentenced him to death under Alabama’s outlier practice. Alabama is the only state in America that currently permits judges to override life sentences and impose the death penalty instead. Judges are more likely to override a jury and sentence a defendant to death when they are facing re-election. The practice is likely unconstitutional. However, by a vote of 4–4, the Supreme Court justices denied Smith’s request to postpone his execution to review the issue of judicial override, and Alabama moved forward with his execution.
Midazolam is supposed to make inmates lose consciousness so that they will not feel the effects of the undeniably torturous drugs that follow it. But physicians have repeatedly explained that midazolam is not up to the task of preventing inmates from regaining consciousness. The growing list of botched executions using midazolam is entirely too predictable: Dennis McGuire in Ohio, Joseph Wood in Arizona, and Clayton Locket in Oklahoma. All moved and struggled after administration of midazolam.
After McGuire was reported unconscious by the prison, he clenched his fist. Then for 25 minutes, his body heaved, and he struggled, gasped, choked, and snorted. Lockett’s vein had blown during his execution, and he writhed, clenched his teeth, and mumbled. Wood’s execution took almost two hours, during which he was choking, snorting, and gasping for air, much like McGuire.
Smith’s lawyers had challenged the use of midazolam and warned that the prison needed a plan for how to respond if the midazolam failed. Their challenges were denied without any court’s oversight because in Alabama, like other places, the lower courts have adopted an impossible test for challenging lethal injection methods. In order for a court to even consider the claim, the inmate must suggest an alternative method for their own execution.
Making a death row inmate propose the method of execution, the product of the Supreme Court’s controversial decision in Glossip v. Oklahoma, is itself wrong and today we’ve seen its disastrous result. And the lower courts have made this requirement worse by demanding that inmates point to an alternative that exists in state law. Smith asked for death by firing squad, believing it would be less painful than the midazolam protocol. The courts said that alternative was not good enough because Alabama law didn’t provide for it. Under this logic, if Alabama announced it planned to execute people by burning them at the stake and didn’t provide for another method, no death row inmate could ever get into court to challenge the stake burning.
The legal morass surrounding lethal injection is untenable, and it must be addressed by the courts. Our legal system must provide for some mechanism of judicial review of torturous and failed drug options. Most immediately, Alabama should order a full investigation of Ronald Smith’s botched execution and halt further executions until it has an appropriate protocol. Alabama as well as Virginia and Arkansas, two other states that threaten to use midazolam in upcoming executions, should reject the use of the drug now.
If Smith’s family decides to seek restitution, they are likely out of luck. After Oklahoma tortured Clayton Lockett to death for more than 40 horrific minutes, his family sued, alleging a violation of the Eighth Amendment’s ban on “cruel and unusual punishments.” In November, a federal appeals court threw out the family’s lawsuit, calling the slow torture of Lockett an “innocent misadventure.”
- ‘The State of Alabama Last Night Tortured a Man While Slowly Snuffing Out His Life’ by Cassandra Stubs. Originally published December 9, 2016 at ACLU.org.
- ‘Alabama May Have Totured an Inmate to Death’ by Mark Joseph Stern. Originally published December 9, 2016 at Slate.com.