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Tuesday, Aug 14, 2018
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Secrecy shrouds state’s lethal injection drugs

TALLAHASSEE — Carrying out the death penalty is often the highest-profile function of state government.

Yet Florida’s lethal injection procedure is both the most open and most secret.

The Department of Corrections maintains a 13-page document on its website, detailing the injection protocol down to syringe sizes and the mix of chemicals.

At the same time, officials refuse to disclose how much of the execution drugs the state has or where it gets them.

On Monday, an Oklahoma pharmacy said it wouldn’t supply an execution drug to the Missouri Department of Corrections for an upcoming lethal injection.

That drug, pentobarbital, is no longer used by Florida because of its limited availability. The state now uses midazolam hydrochloride, which acts as a sedative.

Gov. Rick Scott’s office on Tuesday referred questions to Corrections Department spokeswoman Jessica Cary. She declined to answer questions about sources or supplies, saying the information was confidential under state law.

There’s another good reason to keep silent, says one death penalty scholar.

State prisons officials will “have every detail about what an inmate eats and drinks, if he had iced tea or orange soda,” said Deborah Denno, a professor of law at Fordham University in New York.

But the more information states provide about the drugs they use to execute the condemned, “the more trouble they get into,” she said.

“It’s just more material for litigation,” Denno said. “Is the drug impure? Was it compounded correctly? We can’t find these things out.”

Just trying to get the drugs has been vexing states.

Pharmaceutical companies have been loath to see their products used in executions because the market is tiny and promises little to no financial gain, while potentially exposing them to bad publicity.

In the United States, no domestic manufacturer will supply execution drugs, a response stemming from a fear of lawsuits or the makers’ own opposition to the use of such drugs.

William Happ was the first death row prisoner to be given midazolam at his execution in October.

“It appeared Happ remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula,” according to an Associated Press report.

Missouri death row inmate Michael Taylor’s lawsuit argued that recent executions involving pentobarbital would likely cause “inhumane pain” — and, before a hearing set for Tuesday, The Apothecary Shoppe in Oklahoma said it would not provide the drug.

Other states are experiencing shortages of drugs needed to carry out the death penalty because European pharmaceutical companies refuse to export them, out of opposition to capital punishment.

That has led to some executions elsewhere going awry, according to reports.

In Ohio last month, Dennis McGuire took 26 minutes to die, gasping repeatedly as he lay on a gurney, after a previously untested mix of chemicals began flowing into his body.

On Jan. 9, Oklahoma inmate Michael Lee Wilson’s last words were: “I feel my whole body burning.”

Mark Elliot, director of Floridians for Alternatives to the Death Penalty, said drugs used to sedate and paralyze inmates are more about making executions “more palatable” for witnesses.

“There are a lot of unanswered questions in Florida about the drugs used here,” Elliot said. “It’s so secretive.”

Some prisoners now are demanding answers.

Paul A. Howell was sentenced to death in the 1992 murder of Florida Highway Patrol trooper Jimmy Fulford. He recently challenged the state’s use of midazolam, saying he had medical conditions that would lead to the drug not working properly.

That violates the constitutional ban on cruel and unusual punishment, he argued.

A circuit judge, ordered by the Florida Supreme Court to hold an evidentiary hearing last week, disagreed.

Judge Angela Dempsey ruled that Howell hadn’t proved that midazolam “will fail to make him unconscious and insensate when the second and third drugs are administered,” and handed the case back to the state’s Supreme Court.

In Ohio, prosecutors said condemned inmates are not entitled to a pain-free execution under the Constitution.

Even if the effect of the drugs used by Ohio “presents some inherent risk of discomfort, that does not amount to cruel and unusual punishment,” Christopher Conomy, an assistant Ohio attorney general, argued in court documents last month.

Florida now uses a three-drug cocktail of midazolam, vecuronium bromide and potassium chloride to knock out, paralyze and stop the heart of a prisoner.

The state’s protocol says that “a designated execution team member will purchase, and at all times ensure a sufficient supply of the chemicals to be used in the lethal injection process.

“The designated team member will ensure that the lethal chemicals have not reached or surpassed their expiration dates,” the protocol says. “The lethal chemicals will be stored securely at all times as required by state and federal law.”

In September, Corrections Secretary Mike Crews wrote to Gov. Rick Scott, saying he had reviewed the state’s lethal injection procedure.

The regimen was “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,” he wrote.

“The process will not involve unnecessary lingering or the unnecessary or wanton infliction of pain and suffering,” Crews wrote. “The foremost objective of the lethal injection process is a humane and dignified death.

“Additional guiding principles of the lethal injection process are that it should not be of long duration, and that while the entire process of execution should be transparent, the concerns and emotions of all those involved must be addressed,” he added.

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Information from The Associated Press and News Service of Florida was used in this report.

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