A federal court in Florida has decided to review challenges against the state’s new lethal injection procedure, which the state plans to use one week from today.  Florida is the only death penalty state in the U.S. to be using this protocol, which begins with midazolam, followed by a paralyzing agent, then potassium chloride.  Attorneys for inmates on Florida’s death row allege that the process could result in severe pain, which violates the Constitution.  Megan McCracken, an attorney at the death penalty clinic at the University of California Berkeley School of Law, said,

“If [potassium chloride is] given to a conscious person who has been inadequately anesthetized, it causes incredible pain because it activates nerve endings. It will feel like burning through the circulatory system until it reaches the heart, which it stops.”

Florida switched to midazolam due to a shortage of current pentobarbital supplies; an anesthetic used in animal shelters and in almost all U.S. executions over the past 2 years.  Texas, which has an execution set for the same day as Florida has been able to obtain more pentobarbital from a compounding pharmacy.  Compounding drugs refers to a mixing of drugs to create another drug.  It is a controversial procedure.  Texas uses a one-drug method.  Ohio recently announced that it will use midazolam and hydromorphone in its execution scheduled for November 14th.  That procedure is also under federal review.  Ohio said it was unable to obtain pentobarbital.  Florida’s new procedure was already used to execute William Happ, however, he did not contest his execution.  The hearing was held Tuesday in the U.S. District Court in Jacksonville.

Many states have been seeking alternative ways to carry out their executions.  Missouri originally wanted to use propofol, which has never been used before in executions.  The manufacturer objected.  This plan was put on hold and Missouri has announced it has obtained pentobarbital from a compounding pharmacy and will use it in a one-drug method, joining Texas.  The state’s secrecy law is being challenged currently.

State secrecy laws allow states to keep information about their executions including those on the execution team classified.  Missouri’s next execution is November 20th.  California recently abandoned its three-drug method and is developing a new process.  Georgia has obtained its new drugs (which media reports confirmed to pentobarbital) out of state at a compounding pharmacy and passed a new secrecy law (including a compounding pharmacy on its execution team) saying all such information is a state secret.  Georgia passed the law as a way to circumvent the growing corporate boycott by pharmaceutical companies against their drugs being associated with executions.

However, a Georgia Supreme Court judge ruled after inmate Warren Hill objected that the state’s new law blocking the source of lethal injection drugs interferes with a prisoner’s right to challenge the execution method as unconstitutional.  According to the law, information pertaining to drugs used in executions is classified as “confidential state secrets” and cannot be disclosed.

Judge Gail S. Tusan however, held the law unconstitutional, saying, “to be executed without being aware of basic information regarding the protocols the State will use to carry out such an execution is surely an irreparable harm.”

She also noted that neither the inmate nor the public “…has sufficient information with which to measure the safety of the drug that would be used…as there is insufficient information regarding how it was compounded.”

Dr. Larry Sasich told the court that Georgia’s likely use of a compounding pharmacist to concoct pentobarbital for the Hill execution presented the prisoner with substantial risk that the drugs would not work effectively.

Sasich said that compounding pharmacies were a “substandard drug industry” that operated in a “grey market” largely exempt from the approval process and rigorous monitoring to which drug manufacturers must submit. The product from such pharmacies was liable to be unpredictable and potentially unsafe, with a level of sterility below that of federal rules.

“The potential harm associated with the use of such contaminated or sub-potent drugs is extremely high,” Sasich said. He added that Georgia’s new secrecy law prevented Hill and his legal team from subjecting the pentobarbital supply to testing that would ensure that it would not cause him extreme pain and suffering during the execution process.

Judge Tusan concluded that the law improperly interfered with the court’s duty to make a judgment about the planned execution: “[the law] explicitly exempts from judicial review the very information that would be necessary for a court to determine the constitutionality of an inmate’s execution.”

The judge added that the new law “unconstitutionally limits” the condemned man’s access to legal redress as it prevented him from acquiring the information needed to mount an appeal under the Eighth Amendment ban on cruel and unusual punishment. 

The judge’s ruling will not create a federal precedence, but will be watched by other states with similar secrecy plans including, Arkansas, Florida, Oklahoma, South Dakota, and Tennessee, who all want to keep their compounding pharmacies a secret.  Georgia will likely appeal this decision.


Warren Hill also appealed Georgia’s undue burden for proving mental retardation after multiple findings from both state and defense psychologists was not enough to prove his mental incapacities.  The execution of inmates with mental retardation was ruled unconstitutional in 2002 (Atkins v. Virginia), but Georgia has the strictest standard in the nation.  Brian Kammer, a lawyer for Hill, said,

“Mr. Hill has been procedurally barred from proving his exemption from capital punishment, which is why he brought his case to the U.S. Supreme Court, in the hopes that the court would ensure that the evidence of his intellectual disability would be heard. It is tragic that our highest court has failed to enforce its own command that persons with mental retardation are categorically ineligible for the death penalty.”

Even though the Supreme Court refused to take Hill’s Georgia case, it did take Hall v. Florida.  The U.S. Supreme Court will decide whether the Florida Supreme Court properly upheld the death sentence of a man whose IQ is just above the state’s standard for mental retardation.  According to Florida’s law, defendants with an IQ above 70 cannot be considered intellectually disabled even though in other states they are.  Freddie Lee Hall’s scores on three IQ tests ranged from 71 to 80.  A judge had previously found Hall mentally disabled, but then the state passed IQ limits.  The case will be argued later in the term and could affect Georgia’s law.

“The death penalty is the most serious act the government can take. It’s imperative that the public has access to the full range of information so that it can know what the state is doing in its name,” said Sara Totonchi of the Atlanta-based Southern Center for Human Rights.

Florida has the highest rate of DNA death row exonerations of innocent people, Texas has the 3rd highest rate, Ohio the 9th, Georgia the 11th, and Missouri the 13th, California the 14th, Tennessee the 17th, Arkansas currently has no official death row exonerations (the West Memphis 3 do not count).  Since DNA is present in only a small portion of all criminal cases, the chances are extremely likely that there are factually innocent people on death row currently.

  1. Lon Spector says:

    It’s about time.


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