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10th Cir. Upholds New Okla. Execution Protocol

DENVER, Colo. - Oklahoma's new execution protocol does not constitute cruel and unusual punishment, the 10th Circuit ruled Monday.

The ruling upholds a federal judge's decision at the end of December, in response to four death-row inmates hoping to delay their executions - the first of which is scheduled for January 15 - pending further review of Oklahoma's new execution protocol.

The gruesomely botched execution of Clayton Lockett last spring, which was performed using a non-standard array of drugs, spurred an investigation into Oklahoma's new lethal injection procedures.

The investigation found that the execution was bungled mostly because of an improperly administered IV line, not because of the drugs used.

Oklahoma has been unable to obtain the standard drugs for execution due to anti-death penalty activists successfully lobbying drug companies to stop selling them. The state now plans to use midazolam in the first injection, which is meant to render the recipient unconscious so he does not feel the effects of the later injections.

After Lockett's execution, Oklahoma implemented new guidelines to safeguard against future blunders. For example, the new protocol calls for rescheduling an execution if the first drug is not successfully administered.

The 10th Circuit considered two questions on appeal, both related to the Eighth Amendment: Does the midazolam protocol bring with it a heightened possibility for needless suffering and a lingering death? And, does the recent shifting of the lethal injection drug cocktail render those set for execution subjects of human experimentation?

The district court ruled that the inmates were unlikely to succeed on the merits of the above questions, and the 10th Circuit affirmed.

Deeming the new protocol adequate to guard against another disaster like the Lockett execution, U.S. Circuit Judge Mary Beck Briscoe wrote for the three-judge panel, "We see no error on the part of the district court in relying on three aspects of the revised lethal injection protocol."

These aspects include "the requirement that both primary and backup IV sites be established, the requirement that the viability of these IV sites are confirmed prior to administration of any drugs, and the requirement that the inmate's level of consciousness be monitored throughout the entire execution procedure," Briscoe said.

The appellants also challenged the district court's reliance on testimony from Dr. Roswell Evans, the Dean of the School of Pharmacy at Auburn University.

Dr. Evans testified the 500-milligram dosage of midazolam used prior to lethal injection is almost certain to render the recipient unconscious before the administration of the following drugs. In addition, the dosage will cause death on its own within 30 minutes to an hour. Although the drug is not an anesthetic, it does shut down the brain, rendering it incapable of registering pain.

According to the opinion, "the revised lethal injection protocol is at least 100 times the normal therapeutic IV dose and, if properly administered, will render a person unconscious and insensate during the remainder of the lethal injection procedure."

The 10th Circuit found no abuse of discretion in the district court's reliance on Dr. Evans' testimony, claiming that it was "unable to say that any of these factual findings are clearly erroneous."

Judge Briscoe concludes, "The plaintiffs have failed to establish that the use of midazolam in their executions, either because of its inherent characteristics or its possible negligent administration, creates a demonstrated risk of severe pain."

The 10th Circuit also denied appellants' emergency motion for a stay of execution.

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