On Tuesday Florida executed its second condemned man with the use of midazolam in its three-drug protocol. The drug is still the subject of a lawsuit by death row inmates because of concerns midazolam (intended as an anesthetic) may leave prisoners in extreme pain as their lives are ended. The reasoning is that such pain would violate the Eighth Amendment prohibition against cruel and unusual punishment.
Florida has turned to midazolam because of restrictions on other drugs have limited supplies. Ohio was scheduled to use midazolam for the first time in an execution on the 14th, but the inmate requested that his organs be donated. This prompted the governor to stay the execution pending an examination of how inmates could donate their organs post-execution.
But, as might be expected, Texas continues to execute with only small adjustments. They are not using midazolam, but their reliance on compounding pharmacies and heightened secrecy surrounding how its drugs are acquired have prompted a lawsuit. Missouri, which had delayed an execution due to concerns over how it obtained propofol, will move forward with that execution later this month. It will use pentobarbital, but there are similar concerns over how it obtains its drugs.
If there is to be action from these court cases around compounding pharmacies, it will be over possible violations of existing state laws around public information and/or state procurement of resources. Courts have not been sympathetic to concerns over how effectively drugs have been tested. There will be more opportunities to check this hypothesis as states continue to execute prisoners.