Drug Shortages Could Kill Lethal Injections
Court challenges say substitutes don't meet constitutional protections against inflicting unneeded pain and suffering
For more than a dozen years, the state of Florida executed condemned inmates with a three-drug cocktail that first put them to sleep, then paralyzed their bodies and eventually stopped their hearts.
Now, the state is at another crossroads in implementing that protocol because one drug, pentobarbital, is no longer available from any source. Florida Department of Corrections switched to that drug in 2011 when sodium thiopental became scarce. The pentobarbital and sodium thiopental are designed to render inmates unconscious.
The same issue arose in the 31 other states that use lethal injection, when foreign suppliers refused to sell drugs for use in executions. Most of the problems have occurred since 2008, when the U.S. Supreme Court ruled that Kentucky's lethal injection method was constitutional.
Two death row inmates argued that Kentucky's three-drug lethal injection method would violate the Eighth Amendment prohibition of cruel and unusual punishment. By a 7-2 vote, the Supreme Court upheld Kentucky's method, which used the same drugs that almost all states used for lethal injections.
However, now that some of the chemicals have changed, some states, including Florida, are looking for new drugs that pass constitutional muster.
"States started panicking," said Deborah Denno, a Fordham University law professor and expert on the death penalty.
Hikma Pharmaceuticals PLC issued a press release out of London on May 15, which stated, "Hikma strongly objects to the use of any of its products in capital punishment. The company is putting in place concrete steps to restrict the supply of its products for unintended uses." The release continues, stating Hikma had ceased the sale of phenobarbital to U.S. departments of corrections.
Because of decisions made by foreign companies to forbid use of their drugs for executions, states are scrambling to come up with alternatives, which is prompting a new round of legal challenges, including one in federal court in Jacksonville from four death row inmates.
Florida switched to midazolam hydrochloride when it could no longer get pentobarbital for its three-drug cocktail on Oct. 15. When the state Department of Corrections abandoned the electric chair and first began using lethal injection in 2000, it used the same drugs as other states, including Texas and Oklahoma.
"Midazolam is not intended for use as an anesthetic," the federal lawsuit states. "Its use in this context is wholly untested."
U.S. District Court Judges Marcia Morales Howard and Timothy J. Corrigan in Jacksonville tossed out the federal challenge, but granted the inmates 60 days to file new briefs and gave the attorney general's office 30 days to respond.
Corrigan questioned the lack of medical evidence statements from both sides. Assistant Attorney General Scott Brown argued that the new drug was effective.
"If it's so great, why weren't they using it before?" Corrigan asked, as reported by the Associated Press.
In a letter to Gov. Rick Scott, Department of Corrections Secretary Michael D. Crews wrote, "The procedure has been reviewed and is compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology and technology. The process will not involve unnecessary lingering or the unnecessary or wanton infliction of pain and suffering. The foremost objective of the lethal injection process is a humane and dignified death."
According to the Mayo Clinic website, the drug "is used to produce sleepiness or drowsiness and to relieve anxiety before surgery or certain procedures." It belongs to a group of medicines called central nervous system depressants, which slow down the nervous system.
"Florida used a drug that no state had ever used before," Denno said. "That execution did not go well."
Denno was referring to the Oct. 15 execution of William Happ, who had been on Death Row for 27 years. Reporters witnessing the execution said it appeared Happ remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection using the old formula.
One of the inmates challenging the new drugs is Etheria Verdel Jackson, who was sentenced to death for the Dec. 3, 1985, strangulation and stabbing death of 64-year-old Jacksonville furniture storeowner Linton Moody.
Richard Dieter, executive director of the Death Penalty Information Center in Washington, said the legal challenges may slow some Florida executions, though a new state law has increased the number from three last year to seven this year.
"There are challenges working their way through the courts which could be a roadblock," Dieter said. "Florida has gone off course with this drug."
For states, the problem is how to carry out an execution that's quick, effective and meets constitutional standards by not inflicting unneeded pain and suffering.
Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty in Tampa, opposes all executions.
"There is no humane way to commit an inhumane act, no right way to do the wrong thing," Elliott wrote in an email.
"Florida executions are political ‘dog and pony' shows designed to appear as approved medical procedures. The reality is that the executioner is paid $150 to kill, and the state will find a way to do it," he continued.
"Our state officials like to claim it is ‘humane,' ‘dignified' and ‘solemn.' It is none of that. It is legalized, premeditated murder."
An inmate who faces execution Dec. 27, Askari Muhammad, also known as Thomas Knight, lost an appeal Nov. 25 when Bradford County Circuit Judge Phyllis Rosier ruled the sedative midazolam hydrochloride is capable of preventing condemned inmates from experiencing pain during a lethal injection.
"There is no dispute that the dosage amount used in Florida's protocol is such that it would induce not only unconsciousness when properly administered, but also respiratory arrest and ultimately death," she wrote.
Knight's execution was originally scheduled for Dec. 3 but was delayed by the Florida Supreme Court. The case now goes back to the high court, which is scheduled to hear oral arguments Dec. 18.
Knight, 62, has been on Death Row for almost 40 years. He was convicted of fatally stabbing Corrections Officer Richard Burke with the sharpened end of a spoon in 1980. Knight was first convicted in the 1974 slaying of Sydney and Lillian Gans in Miami.
There are problems in other states where changes in lethal injection protocols have resulted in new legal challenges, Denno said.
Since 2010, 11 states have changed their protocols from three drugs to one drug, Denno said, while Florida continues to use three drugs.
"They have a very problematic procedure," Denno said of Florida's protocol.
The Missouri execution of white supremacist Joseph Paul Franklin was delayed for several hours Nov. 20 while his attorneys pressed their appeals, including the use of pentobarbital. His attorneys argued that its use would violate the constitutional ban on cruel and unusual punishment.
Missouri had planned to use the drug propofol, the surgical anesthetic made infamous by the death of pop star Michael Jackson. But there were concerns that European Union might halt shipments, leading to fears there would be an insufficient supply for medical purposes.
Missouri decided to use pentobarbital created by an unnamed compounding pharmacy, prompting Franklin's lawyers to argue it would raise the risk of contamination and a painful death.
Both Dieter and Denno believe new issues will continue to appear and be appealed as the death penalty becomes less popular.
"Death penalty opponents and medical professionals have long objected to lethal injection on the basis that the use of drugs to carry out executions links death to the practice of medicine," Denno wrote in an article to be published in 2014 in the Georgetown Law Journal. "Ironically, that reliance on drugs may end up accomplishing what countless legal challenges could not: Drug shortages have devastated this country's execution process to an unparalleled degree. Rather than masking the ‘machinery of death,' the mimicry of medicine may end up dismantling it."