Florida changing lethal cocktail?

State may be considering new drugs for death penalty

TALLAHASSEE — Florida corrections officials appear to be planning what could be a dramatic change to the triple-drug lethal injection process, including 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 buying since last year, even as Florida’s death penalty remains in limbo after a series of court rulings. The new triple-drug cocktail would be the only one of its kind among the states that rely on lethal injection 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 to lawyers representing Arizona Death Row inmates and the First Amendment Coalition of Arizona.

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 shortacting “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 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.

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.

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 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.