After Supreme Court ruling on controversial drug midazolam, officials are already petitioning to resume executions in Florida 

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The drab curtains rose slowly over the unfolding scene, where behind thick glass, Darius Kimbrough was already strapped to a gurney with IV needles stuck into his arms. His face was peeking out from underneath a white sheet. After spending 19 years on Florida's death row, Kimbrough still had the same boyish face he had when he was sentenced to death in 1994 for the murder and rape of Orange County woman Denise Collins.

Official witnesses and Collins' family sat silently in the first two rows of seats behind the glass while media witnesses, including myself, jotted details in the back rows. I was the newly hired crime reporter at the The Gainesville Sun in late 2013, and we were close enough to the Florida State Prison in Raiford to cover all the executions. This would be the first out of many.

At 6 p.m., a chaplain turned off the noisy window air conditioner so the room could hear Kimbrough's final monologue.

"Any last words?" an official asked him.

"No, sir," he said.

As the lethal injection cocktail of three drugs, including midazolam hydrochloride, flowed through his veins, an intense wave of eerie calmness and tension filled the room. The reporter in me continued to observe any subtleties in Kimbrough's breathing and the movement of his lips, but the rest of me disassociated. After 17 long minutes, a doctor proclaimed Kimbrough dead. His body, now still beneath the white sheet, was the last thing we saw as the curtain went down again.

Last week, the U.S. Supreme Court upheld the legality of midazolam, the same drug used to sedate Kimbrough. The justices ruled 5-to-4 in Glossip v. Gross against death row inmates who argued that the use of the midazolam in the lethal-injection procedure could violate the U.S. Constitution's ban on cruel and unusual punishment because it does not reliably leave inmates unconscious. While the decision opens the door for states to continue using the sedative, some states, like Ohio, have said they will not. In Florida, the state still hasn't commented on what it plans to do regarding midazolam, but officials are already petitioning for executions to resume.

The Glossip case arose after several botched executions across the country, most notably one in Oklahoma, where the state executed Clayton Lockett using midazolam for the first time. Lockett thrashed, moaned and tried to get up several times, before ultimately dying 43 minutes later. Months later using the same lethal cocktail, Oklahoma executed Charles Warner, who reportedly said as the first drug was being administered, "My body is on fire."

Oklahoma's expert witness in the case, Dr. Roswell Lee Evans, testified that with a high dosage of midazolam, inmates would not feel pain during the execution. Evans, the dean of the Harrison School of Pharmacy at Auburn University, also told the district court that he has never used midazolam on a patient or induced anesthesia.

Dr. David Lubarsky, chairman of anesthesiology at the University of Miami, testified for petitioners in the case and says in an email that the drug is commonly used as a pre-procedural drug to calm patients and block their memory, but is not approved as a sole anesthetic under which one can perform a procedure such as surgery.

The anesthesiologist also said that there are several issues with the drug, including the fact that some patients do not become sedated, and that there can be a ceiling effect, which Lubarsky compares to adding too much sugar to iced tea – regardless of how much you add, no additional effect is achieved.

These complications can cause inmates who may not be sufficiently anesthetized to experience air hunger, a sensation that feels like being buried alive, or a painful chemical burning from the injection that stops the heart, he said. Both situations can wake inmates who can't signal that they are conscious because they have already been paralyzed.

"The use of paralytics as a second drug following both drugs does nothing but mask potential problems with the lethal injection," he writes. "Paralytics are banned by animal euthanasia protocols for this reason, and their use should definitely be banned in lethal injection."

The Supreme Court found that the inmates had failed to prove midazolam is ineffective, and they did not identify an alternative, less painful method of execution, said Justice Samuel Alito Jr., writing for the majority. Robert Dunham, executive director of the Death Penalty Information Center, said that because the court did not decide on the constitutionality of midazolam, challenges to the drug can and probably will continue as long as states keep using it.

"I think most states will not go forward with midazolam because a state concerned with the integrity of the execution process would certainly be extraordinarily reluctant to use a chemical that America has seen was responsible for three botched executions," Dunham says.

Florida was the first state to use midazolam as part of the lethal injection mix, during the 2013 execution of William Happ, who, according to reporters, moved and remained conscious longer than previously executed inmates. Just hours after the Supreme Court's June 29 decision in Glossip, Attorney General Pam Bondi filed a motion to vacate the stay the Florida Supreme Court had imposed on executions until the ruling by the higher court in the case. The stay delayed Florida's execution of Jerry Correll, who was sentenced to die for murdering his ex-wife, her mother, her sister and her daughter. His execution was scheduled to take place last February.

Correll's attorneys filed a response last week asking the Florida Supreme Court to continue the stay until the lawyers in the Glossip case had a chance to file a motion for a rehearing, says Maria DeLiberato, an attorney with Capital Collateral Regional Counsel – Middle Region, the firm defending Correll. DeLiberato said the defense also asked the court to hold the stay until after the Supreme Court considers Hurst v. Florida, a case that argues whether Florida's death sentencing scheme violates constitutional amendments.

"His team is working very hard on this case," she says. "Mr. Correll has many other issues pending in his appeal, including the constitutionality of Florida's death penalty statute."

Gov. Rick Scott's deputy communications director John Tupps said in a statement Wednesday, "Our office respects the court's decision and will continue to follow the law. The governor's foremost concern is for the victims of these heinous crimes and their families."

Journalist Ron Word covered about 60 executions as a reporter for the Associated Press bureau in Jacksonville before it was closed in 2009. After so long, the names and faces of the inmates mesh together, but Word can still remember the jarring details: flames coming out of prisoners' heads as they were executed on the electric chair, blood running down an inmate's shirt and a serial killer who sang.

"It's a surreal experience," he said. "When I was covering them, I found myself working so hard to get as many details that I concentrated on what I was doing and not what was happening."

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The last one he remembers clearly was the botched execution of Angel Nieves Diaz in 2006. Diaz took 34 minutes to die after executioners improperly inserted the IV needles into his flesh and not his veins, causing the lethal injection chemicals to seep into his skin, Word said. Diaz shuddered, grimaced and gasped for air during the procedure, and an investigation later found Diaz had received chemical burns on his arms. After the execution, Florida Department of Corrections officials told reporters it took longer for Diaz to die because of a liver problem, which later turned out to be false.

"I think many of the victims' families supported the death penalty," he said. "They wanted closure, but I don't know whether they got it or not. It would be interesting to know if they found that comfort and peace they were looking for."

After Kimbrough's execution, Collins' family was in tears at the media staging area.  Kimbrough's relatives were not allowed to attend the execution, which is the norm for family members of the executed, said Alberto Moscoso, press secretary for the Florida Department of Corrections.

Diane Stewart, Collins' mother, said the execution was peaceful, forgiving and not something Kimbrough deserved after killing her daughter.

"He went out a lot neater than she did," she said.

But did he? In her dissenting opinion, Justice Sonia Sotomayor wrote that the Supreme Court had absolved Oklahoma from its duty against cruel and unusual punishment by "misconstruing" and "ignoring" proof about the constitutional insufficiency of midazolam.

"As a result, it leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake," she wrote. "The contortions necessary to save this particular lethal injection protocol are not worth the price."



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