Florida may be pondering 'novel' lethal injection change

- In a move that would be certain to spur more litigation over the state's already embattled death penalty, Florida corrections officials appear to be planning what could be a dramatic change to the triple-drug lethal injection process --- including the use of a drug never before used for executions.

The Department of Corrections has spent more than $12,000 this year stockpiling three drugs likely to be used to kill condemned prisoners, according to records obtained by The News Service of Florida.

The state has never previously used any of the three drugs it has been purchasing since last year, even as Florida's death penalty remains in limbo after a series of rulings from the courts.

The new triple-drug cocktail would be the only one of its kind among the states that rely on similar procedures to kill prisoners.

One of the drugs that Florida could be planning to use as the critical first dosage, used to anesthetize condemned inmates, has never before been used as part of the three-drug execution procedure in the U.S., according to a death-penalty expert at the University of California, Berkeley Law School.

A federal judge this fall ordered the state to provide years of records related to Florida's three-drug lethal injection protocol --- including the types of drugs purchased, the strengths and amounts of the drugs, the expiration dates of the drugs and the names of suppliers --- to lawyers representing Arizona Death Row inmates and the First Amendment Coalition of Arizona.

The Arizona lawyers in June filed a subpoena seeking the records from the Florida Department of Corrections, but the state refused to release the documents --- arguing that the information is exempt under Florida's broad open-records law --- until ordered to do so by U.S. Magistrate Judge Charles Stampelos.

Stampelos gave corrections officials the option of keeping the records protected from the public, but, unlike other states that provided similar records to the Arizona lawyers, the Florida agency did not require the heavily redacted documents to be kept secret.

The 104 pages of documents include invoices, drug logs and a handful of emails, and indicate that Florida has run out of the execution drugs it has used for the past few years.

Most important, the records show that the state no longer has a supply of midazolam hydrochloride, the drug used to sedate prisoners before injecting them with a paralytic and then a killing agent.

But Florida has been purchasing the drug etomidate, also known by its brand name "Amidate," a rapid-onset and short-acting "hypnotic drug" used for "the induction of general anesthesia," according to Amidate manufacturer Hospira's website.

The state made its first purchase of etomidate in April 2015 and has purchased it regularly throughout this year. The drug would likely be used to replace midazolam, according to lethal injection experts.

Department of Corrections officials would not comment on whether the agency is considering a change to the lethal-injection protocol or whether the state was forced to seek new drugs due to some pharmaceutical manufacturers in recent years banning the use of their products for executions.

"The death penalty is our most solemn duty. Our foremost objective of the lethal injection process is a humane and dignified process," agency spokeswoman Michelle Glady said in an email.

The constitutionality of any state's three-drug execution procedure hinges on the first of the drugs used in the process, said Megan McCracken, a lawyer with the Death Penalty Clinic at the University of California, Berkeley Law School.

Ensuring that prisoners are properly sedated is critical to guaranteeing that the lethal injection procedure does not violate Eighth Amendment prohibitions on cruel and unusual punishments, she said.

"For executions that use three drugs, and specifically executions that use a paralytic as the second drug, the first drug is crucially important because whether or not the execution will be humane and will bring about death without pain and suffering will turn completely on whether or not that first drug renders the prisoner insensate to pain," she said.

Midazolam, still in use by some states, is at the heart of the Arizona lawsuit, filed after convicted killer Rudolph Wood took two hours to die in 2014. Arizona corrections officials have tried to get the lawsuit dismissed as moot because they claim they have run out of the drug and it is no longer available. At least four other states claim they have supplies of midazolam.

Concerns about midazolam also prompted the Florida Supreme Court last year to halt the execution of Jerry William Correll, pending the outcome of a lawsuit filed by Oklahoma prisoners over the drug's use. In June 2015, a sharply divided U.S. Supreme Court rejected the challenge in the landmark case, known as Glossip v. Gross.

The use of etomidate in an execution --- if that is what Florida is planning to do --- is "brand new and wholly novel," McCracken said.

"It has not been used to our knowledge in an execution in any state and it's never appeared on an execution protocol in any state," said McCracken, who specializes in the lethal injection process.

Like most other states with a three-drug execution procedure, Florida's current protocol requires the use of midazolam to sedate prisoners before injecting a paralytic --- now vecuronium bromide --- followed by potassium chloride, the drug used to stop a prisoner's heart.

The records show that Florida has a small supply of potassium chloride that will expire in February, and in March began buying potassium acetate, presumably a replacement for potassium chloride, the drug used to stop a prisoner's heart.

Potassium acetate has only been used once before, the experts said. Last year, Oklahoma corrections officials admitted they mistakenly used potassium acetate in the execution of Charles Warner, although the state's protocol requires the use of potassium chloride.

The last time Florida purchased potassium chloride was in June, 2015, when a vendor sold it to the state accidentally, the records show. The vendor repeatedly requested that the state return the drugs. It is unknown if Florida is able to purchase it elsewhere.

The introduction of a new protocol is likely to further complicate Florida's embattled death penalty.

Executions in Florida have been on hold since January, when the U.S. Supreme Court ruled, in a case known as Hurst v. Florida, that the state's death penalty sentencing law was unconstitutional because it gave too much power to judges, instead of juries.

Shortly after the Hurst decision, the Florida Supreme Court halted two pending executions ordered by Gov. Rick Scott. Those stays remain in effect.

The Florida Supreme Court recently struck down a new law, passed in March to address the Hurst ruling, because the measure did not require unanimous jury recommendations for death sentences to be imposed.

A new lethal-injection protocol would inevitably lead to lawsuits challenging the constitutionality of the new drugs, defense lawyers predicted.

"A new protocol will potentially lead to more litigation because, based on the drugs they've ordered, a combination of those drugs have never been used in an execution in the U.S. that we're aware, so the litigation would be centered on the fact that this novel drug combination essentially amounts to human experimentation," said Maria DeLiberato, a lawyer representing inmate Dane Abdool, one of five Death Row inmates who are plaintiffs in a federal lawsuit challenging Florida's lethal-injection protocol.

The inmates are also challenging, among other things, the secrecy involved in where the drugs are obtained and how they are administered.

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