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Alabama executed Robert Bert Smith on Friday night in what his federal public defender is calling a "botched" operation that appeared to cause Smith pain. He "gasped and heaved" for 13 minutes, according to Now, state prison officials are defending the execution and declining to provide specifics about the protocols followed.


"Since the protocol is secret I can't make any guesses about whether it was followed," the public defender, Christine Freeman, said. "The object of the protocol is to create a painless execution and that is not what we saw last night," she continued. Smith also reportedly reacted to "consciousness tests" performed by a guard long past the point when he should have been conscious.

The Supreme Court allowed the use of the first drug, midazolam, which is meant to act as a sedative but often fails, in a controversial 5-4 opinion. In her dissent, Supreme Court Justice Sonia Sotomayor referred to midazolam as "the chemical equivalent of being burned alive." If Smith was conscious during his execution, he likely "experienced a slow and brutally agonizing death but could not express his pain because the second chemical had paralyzed him," Slate's Mark Joseph Stern wrote.


Smith, who was convicted for a 1994 killing of a convenience store clerk, was originally sentenced by the jury in his case to life in prison. Then the judge, in a maneuver only allowed by Alabama's death penalty law, overruled that sentence and put him on death row.

In the weeks and days leading up to his execution, Smith repeatedly made appeals to the Supreme Court, first requesting a much heavier dose of midazolam. After that was denied, he made appeals for a different method to be used, citing several other botched executions because of poor administration of midazolam. The Court split 4-4 on that appeal, allowing the execution to continue after a last-minute temporary stay. In a separate appeal which was dismissed, he argued the way he was sentenced to death was unconstitutional.

The same three-drug cocktail was used on the last death row inmate Alabama executed, Christopher Brooks. Initial articles about the January execution reported it had gone according to "protocol." Federal court filings by Freeman, who was also Brook's public defender, claimed that Brooks's left eye popped open during the procedure, showing that he was conscious during his death. Midazolam is also responsible for the ghoulish 43-minute death of Clayton Lockett in Oklahoma two years ago.


“Clearly, the courts need to do a thorough analysis and an assessment of midazolam. They need to dig deep. Because this keeps happening," Megan McCracken, a lawyer with UC Berkeley's Death Penalty Clinic told the Montgomery Advertiser.


The next person to be executed, Christopher Wilkins in Texas, will likely not be killed by the midazolam cocktail, though Texas prison officials do have the drug on hand and has reported shortages of its main death penalty drug.

Sam Stecklow is the Weekend Editor for Fusion.

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