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The Reality Behind The Argument Between Justice Sotomayor And Oklahoma Over The Death Penalty

"Nothing you say or read to me am I going to believe, frankly, until I see with my own eyes the context, okay?”

Posted on April 30, 2015, at 9:24 p.m. ET

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On Wednesday, U.S. Supreme Court Justice Sonia Sotomayor accused the state of Oklahoma of lying numerous times in their briefs about the drugs they use to execute death-row inmates.

At issue in the case is whether midazolam, the drug of choice for Oklahoma and several other states, is capable of anesthetizing inmates before they are given painful and lethal drugs. Experts say Oklahoma's third drug, for example, feels like liquid fire.

"I am substantially disturbed that in your brief you made factual statements that were not supported by those sources [you cited, and were] in fact directly contradicted," Sotomayor told Oklahoma Solicitor General Patrick Wyrick. "So nothing you say or read to me am I going to believe, frankly, until I see with my own eyes the context, okay?"

Sotomayor said she found "many" examples of Oklahoma playing fast and loose with the facts, but said she would list out three. (She actually only listed two examples before the arguments shifted to another topic.)

Here's the first one: In their brief, Oklahoma cited midazolam's FDA-approved label as evidence that the drug is capable of general anesthesia.

The problem: Pharmacology experts say midazolam is not capable of general anesthesia. Oklahoma quotes the drug's label as saying midazolam's "[a]nticipated effects range from mild sedation to deep levels of sedation virtually equivalent to a state of general anesthesia where the patient may require external support of vital functions."

That quotation is on the label; the issue, as Sotomayor pointed out, is what comes before it. The quotation is actually in a section that's talking about what would happen when midazolam is paired with other drugs:

"But this quote was not on general use," Sotomayor said. "This quote came from the section of the FDA label where it was saying that this drug's effects, when taken with other drugs that suppress the central nervous system, this can happen. There is no other central nervous system drug at play in this protocol."

Wyrick rebutted that the state adequately disclosed that in the briefs. As written, however, the brief misleads about what the label really states.

In the second instance, Sotomayor took issue with the way Oklahoma represented a study performed in the 1980s about the drug's anesthetic effects.

But this second example is actually pretty complicated — and the study's author says Oklahoma got it right in one part, while another part appears to be misleading.

In their brief, the state cites a study from 1982 that studies midazolam. Oklahoma says the study found that "the anesthetic effects of midazolam increased linearly with dosage and estimate[s] that 2mg/kg (140mg in a 70kg person) is enough for full surgical anesthesia."

Sotomayor took issue with that characterization. "The Melvin study says this is how it happened: It gave this drug in doses of .02 to .06, and what it showed was that at .06 dose, there was less effect than at .02. And he said, this suggests that there is a ceiling effect to this drug and that it is less potent as you go in higher doses," Sotomayor said in a contentious exchange.

A "ceiling effect" means that, at higher doses, a drug's effects become less potent — diminishing returns, in other words.

Wyrick responded to Sotomayor that the .02 and the .06 doses were actually referring to different drugs in the study.

A co-author of the study says that Wyrick is correct and Sotomayor is wrong on that point.

"That's wrong. That's a mischaracterization," Edmond Eger told BuzzFeed News of Sotomayor's statement. "It's comparing apples to oranges," since that portion was actually comparing another drug, diazepam, with midazolam.

And while he said Sotomayor was incorrect on that portion of the study, Oklahoma was misleading in its characterization of what the study actually found.

Oklahoma cited the study as evidence that midazolam can bring about general anesthesia, something that numerous experts told the court that the drug cannot do. In reality, the study was clear that, extrapolating from data collected, midazolam could theoretically cause general anesthesia — but only if no ceiling effect exists. And the study specifically stated that a ceiling effect might exist, an important caveat that Oklahoma didn't include in its briefs.

In the interview with BuzzFeed News, Eger confirmed that the existence of a ceiling effect wasn't something the study tested.

After reading over a brief written by 16 pharmacology experts who said the ceiling effect does exist, and that midazolam is incapable of general anesthesia, Eger acknowledged that "that's probably correct. But our study just didn't deal with that."

So while Sotomayor was incorrect as to how she characterized the study, she was right that Oklahoma overstated what the study found.

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