No Drugs, No Executions: Is This the End of the Death Penalty?

As states scramble to find new lethal cocktails, a lack of options could spell the end of capital punishment.
The lethal injection room at California's San Quentin State Prison (CA Dept. of Corrections/Reuters)

On Oct. 15, Florida executed William Happ, a man who most agreed deserved little sympathy. Happ kidnapped 21-year-old Angela Crowley in 1986 from outside a convenience store in Crystal River and raped and strangled her before dumping her tormented body into the Cross Florida Barge Canal. Three years later he was convicted of rape and murder and sentenced to death.

Happ's execution lasted 14 minutes before he was pronounced deaddouble the time typically expected when pentobarbital, the executioner's drug of choice for years, was used. He "remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection," according to Associated Press reports.

Happ died for his crimes committed 27 years ago. Like hundreds before him, Happ's death was administered through an intravenous injection of a lethal drug cocktail.

Like no one before him, Happ was injected with midazolam hydrochloride, a sedative that had never before been used for an execution in the United States.

Happ's execution reflects an American death-penalty system in crisis: States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish. And no one wants to innovate in the execution industry. As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty.

Race to the Bottom

Florida's new drug of choice replaced pentobarbital, a barbiturate the state used for years as part of its three-drug lethal cocktail until de facto boycotts by foreign drug manufacturers exhausted its supply. Midazolam hydrochloride, marketed as Versed, was chosen not because of its effectiveness but because of its availability, a decision legal experts say calls into question Florida's commitment to the Eighth Amendment's promise of no infliction of cruel or unusual punishment.

Florida is just one of several states scrambling to update or refine its capital-punishment protocol amid a sudden shortfall of its lethal injection drugs, resulting in an unprecedented inconsistency in the way inmates are executed in the United States. Even as a steady majority continues supporting the death penalty, the difficulty in obtaining new lethal drugs, associated legal hurdles, and a gaping void of better execution alternatives has left capital punishment in America with an uncertain future.

Distilling the amount of pain Happ endured is nearly impossible because the second drug in Florida's three-drug cocktail, vecuronium bromide, acts as a paralytic agent. Its purpose is largely cosmetic, effectively masking how much pain the subject may be enduring.

"We don't even know if the new drug (midazolam) is working or not," said Richard Dieter, the executive director of the Death Penalty Information Center. "Everything is a bit of an experiment with a human subject. If this were ordinary medicine, that would not be allowed, but this is the death penalty and that's how it goes."

In a letter to Florida Gov. Rick Scott last month describing the changes to its lethal-injection protocol, Florida Department of Corrections Secretary Mike Crews wrote that "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. He added: "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."

A department spokeswoman confirmed the switch was made because Florida's cache of pentobarbital expired. She declined to give specifics about how the updated lethal-injection process was vetted to ensure it qualifies as "a humane and dignified death."

"The department is not going to go into any detail about how or why the protocol was designed," Misty Cash, the spokeswoman, told National Journal. "Those decisions are exempt from public record because they could impact the safety and security of inmates and officers who are involved in that process."

Florida's refusal to disclose its process for selecting its new drug bolsters critics who claim it and other states are willing to risk violating generally accepted standards of decency in their pursuit of a reliable method of execution.

Peter Bell

"Every time a state changes their method of execution, they lose credibility about a procedure that should be as humane as we can make it. Everything that states are doing now goes against that very grain," said Deborah Denno, a capital-punishment expert who opposes the death penalty. "They choose drugs because they are available, not because they know anything about those drugs."

Texas's changes to its lethal-injection protocol illustrates that reality. When the state first adopted lethal injection as a method of execution in 1982, a three-drug sequence consisting of sodium thiopental, pancuronium bromide, and potassium chloride was deployed. In March 2011, the state replaced sodium thiopental with pentobarbital because the state encountered difficulty procuring the old drug, according to Texas Department of Criminal Justice spokesman Jason Clark. A year later, the department again modified its execution protocol, this time from a three-drug sequence to just one drug: a lethal dose of pentobarbital, a drug more commonly used to euthanize pets.

This change, like the first, occurred because "the agency's stock of [pancuronium bromide] expired and the agency was unable to obtain a new shipment," Clark said.

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Dustin Volz is a staff correspondent for National Journal.

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