On Thursday night, Alabama executed Ronald Bert Smith Jr., who was convicted of murdering a convenience store clerk in 1994. Shortly after the executioner administered midazolamthe first chemical in a three-drug cocktailSmith struggled for breath, heaved, coughed, clenched his fist, raised his head, and opened his left eye. His lips also moved, but he could not speak, and he appeared to react to both consciousness tests that a prison guard performed. However, prison officials went ahead with the execution anyway, administering chemicals to paralyze Smith and stop his heart.

The Supreme Court permitted the use of midazolam in a 54 decision in 2015, though the drug appears to have caused multiple botched executions by failing to render an inmate truly unconscious. In dissent, Justice Sonia Sotomayor noted that the three-drug cocktail administered to Smith may be the chemical equivalent of being burned alive. Hours before his execution, Smith had asked the Supreme Court to halt his execution given the known problems with midazolam. The court refused. It seems quite likely that Smith was at least partly conscious when he was given the second and third chemicals of the cocktail. If so, he experienced a slow and brutally agonizing death but could not express his pain because the second chemical had paralyzed him.

If Smiths family decides to seek restitution, it is likely out of luck. After Oklahoma tortured Clayton Lockett to death for more than 40 horrific minutes, his family sued, alleging a violation of the Eighth Amendments ban on cruel and unusual punishments. In November, a federal appeals court threw out the familys lawsuit, calling the slow torture of Lockett an innocent misadventure.