The Florida Supreme Court wants more information about the state's new lethal injection drug. (Photo via T Woodard)

The Florida Supreme Court wants more information about the state’s new lethal injection drug. (Photo via T Woodard)

By Ashley Lopez
Florida Center for Investigative Reporting

The state of Floridahas been embroiled in another controversy over its execution practices—and the issue made its way this week to the Florida Supreme Court.

State officials are facing criticism for being the only state in the country to use a drug called “midazolam hydrochloride” as an anesthetic during the lethal injection process. Lethal injections take three different drugs and in the past, like most states, Florida used pentobarbital for the first injection. Pentobarbital is a barbiturate used before surgery and other medical procedures. However, the state has run out of its supply.

As NPR reported in October, because the supply was running out, “the Florida Department of Corrections decided to use a new drug — a sedative called midazolam that had never been tested for execution [and] nobody knew exactly how it would work.”

NPR talked to Associated Press reporter Brendan Farrington, who was in the viewing room for the execution of William Happ last month, which was the very first execution carried out with this new and untested drug. According to NPR:

At 6 p.m. sharp, the execution began. Farrington had seen three other executions, none of which used midazolam. In those cases, he says, the prisoners’ eyes closed “fairly quickly, and once their eyes closed, they usually stay closed.”

“While it wasn’t dramatically different than previous executions, it did seem like it took him longer to lose consciousness,” Farrington says. “In Happ’s case, his eyes were still opening two, three, four minutes into the process. Once they closed, about 10 minutes in, his head started moving kinda just around, and there was some motion.”

There’s no way to know if Happ was in pain during his last moments. Some anesthesia experts have expressed concern that midazolam and other untested sedatives could fail to work properly during an execution. If that happened, condemned prisoners could die slowly or painfully, a violation of legal guidelines for executions.

Megan McCracken studies lethal injection drugs for the Death Penalty Clinic at the University of California, Berkeley, School of Law.

“If the first drug does not in fact deeply anesthetize the prisoner,” she says, “then he or she could be conscious and aware of being both paralyzed and able to experience pain and the experience of cardiac arrest.”

Since that execution, the controversy of using that drug hasn’t gone away. In fact, other states are also running out of Pentobarbital and are seeking out different products to replace it, as well. Al Jazeera America reported:

Since 2010, pentobarbital has been the drug used for almost all of the lethal injections in the U.S. But medical organizations that produce pentobarbital in the past couple of years have agreed to prohibit the sale of these drugs to state prisons for the purpose of executions. Now, the supply for the state prisons has almost run dry.

The scarcity of the most commonly used lethal-injection drug of the past four years in the U.S. has left state prisons questioning where to look to next. Among those states are Texas and Florida, which are using untested workarounds that have come into question by human-rights groups and death-penalty experts.

“It’s a desperate act on the part of states,” says Deborah Denno, a Fordham University law professor. “It’s a dangerous act because it’s extremely risky. These states just can’t go jumping from drug to drug to drug.”

….In Texas, the state’s department of criminal justice has partnered with a compounding pharmacy in suburban Houston to help produce a version of the drug specifically for executions. Earlier this month, the Texas Department of Criminal Justice responded to a Freedom of Information request from the Associated Press, showing that eight vials of pentobarbital were purchased from the Woodlands Compounding Pharmacy, which is not subject to any oversight from the Food and Drug Administration.

….The drug has already caused a stir. This month, three Texas death-row inmates filed a federal lawsuit challenging the state’s use of the untested drug, saying it would violate the constitutional right against cruel and unusual punishment. After a federal judge rejected the argument, Yowell was executed last week with the compounded version of pentobarbital.

The lack of federal scrutiny on the drug for the purpose of executions will continue to be an issue of concern for the foreseeable future, says Megan McCracken, the Eighth Amendment resource counsel at the University of California-Berkeley School of Law.

A Texas official told Aljazeera that there are currently five executions scheduled in the state between November and February 2014.

In Florida, another inmate is scheduled to be executed next month, but the state’s Supreme Court Justice wants some answers first. The Tampa Bay Times/Miami Herald reports,

In a 5-2 decision, the Florida Supreme Court on Monday ordered that Thomas Knight’s scheduled execution be delayed so he can argue that a new drug used to sedate a prisoner at the start of the lethal injection process could subject him to “serious harm.” Knight, also known as Askari Abdullah Muhammad, had been scheduled to die at Florida State Prison on Dec. 3.

… In its order, the court said: “The Court has determined that Muhammad’s claim as to the use of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida’s protocol warrants an evidentiary hearing. We conclude based on the allegations in Muhammad’s 3.851 motion that he has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida’s lethal injection protocol will subject him to a ‘substantial risk of serious harm.’

“We further direct the DOC (Department of Corrections) to produce correspondence and documents it has received from the manufacturer of midazolam hydrochloride concerning the drug’s use in executions or otherwise, including those addressing any safety and efficacy issues,” the court ordered.

The justices stayed Knight’s execution until at least Dec. 27. His case was also sent back to a lower court.

Florida’s execution laws and practices were under scrutiny earlier this year when Gov. Rick Scott signed a law speeding up executions in the state.