06 September 2017 :

The U.S. Court of Appeals for Eleventh Circuit has ruled in favor of Alabama death-row prisoners who brought a civil-rights lawsuit challenging the state's use of midazolam in a three-drug protocol. The lower court had granted the Alabama Department of Corrections's motion for summary judgment, but the Eleventh Circuit reversed that decision with instructions for the trial court to conduct further fact-finding in the case. In a 79-page opinion, the 3-judge panel of the U.S. 11th Circuit Court of Appeals said there were factual disputes that should have precluded U.S. District Judge Keith Watkins from issuing summary judgment for the Alabama Department of Corrections in October 2016. The inmates in the case argue that midazolam, a sedative used in Alabama's 3-drug execution process, cannot render a condemned individual unconscious before officials inject 2 more painful and lethal drugs. The appeals court wrote that should be the focus of future hearings. "Whether the ADOC's use of midazolam as the first drug in its execution protocol will render the prisoner insensate prior to the administration of the 2nd and 3rd drugs will require the presentation of expert opinion testimony," U.S. Circuit Judge Gerald Tjoflat wrote in an opinion for the panel. "We assume that Appellants' counsel is prepared to present such testimony, and that the ADOC is prepared to rebut it with expert opinion testimony of its own." The U.S. Supreme Court ruled in 2015 that condemned inmates challenging their methods of execution must present an alternative method of execution. Alabama has used midazolam since resuming executions in early 2016. 3 of the 4 that have taken place since then took place without visible incident. But Ronald Bert Smith, executed last December, gasped and coughed for 13 of the 34 minutes it took to execute him. Midazolam has been present in other botched executions. Critics say its ability to render a person unconscious drops when a recipient experiences a high-stress event, like his or her execution. The inmates in the lawsuit suggested single-injection methods of execution, involving large doses of drugs like midazolam, pentobarbital or sodium thiopental. The Alabama Department of Corrections argued in the case that it could not obtain supplies of sodium thiopental or pentobarbital. Hospira, the maker of sodium thiopental, stopped manufacturing it in the United States in 2011 due to its use in capital punishment. The state used pentobarbital as a sedative in executions but had exhausted its supply by 2014. DOC also argued that the inmates failed to show that a single large injection of midazolam would be less painful than the current method. Watkins agreed, saying the plaintiffs did not identify sources of sodium thiopental or pentobarbital and did not produce "scientific evidence of record" to prove midazolam would be less painful for the condemned. The appeals court found fault with Watkins' findings. It noted that dozens of executions took place involving compounded pentobarbital and that some states intended to carry out executions with it. "From these facts it can reasonably be inferred that compounded pentobarbital was available, that executions using the drug as a 1-drug protocol were ongoing, and that several States contemplated employing the protocol," Tjoflat wrote.