Much like the rest of the U.S., Florida is running out of lethal-injection cocktails. But the Sunshine State is reportedly now stockpiling new execution drugs, including one that’s apparently never been used in any state.
The move raises more questions about the state’s already controversial capital punishment protocol.
According to records obtained by the News Service of Florida, Florida’s Department of Corrections shelled out more than $12,000 this year on new drugs, one of which is etomidate, a fast-acting anesthetic, which would theoretically replace the sedative Midazolam in lethal injection cocktails.
Megan McCracken, a lawyer at Berkeley Law School’s Death Penalty Clinic, told the Sun Sentinel that the use of etomidate in executions would be “brand-new and wholly novel.”
“It has not been used, to our knowledge, in an execution in any state,” McCracken said.
Florida’s Department of Corrections did not immediately respond to a request for comment.
Florida’s current lethal injection protocol consists of a cocktail of three drugs, including Midazolam, which has been used in high-profile botched executions — like Clayton Lockett in Oklahoma, who writhed and groaned on the gurney after 16 attempts to inject him, and Joseph Wood in Arizona, whose execution dragged on for nearly two hours. Use of the drug has spurred lawsuits, including one brought by inmates in an Oklahoma prison that the Supreme Court narrowly voted down.
Nearly 400 inmates on Florida’s death row await their sentence, and the state hasn’t executed anyone since Jan. 7 of this year. The Tampa Bay Times reported in July that Florida had just 250 vials of Midazolam left, enough for about 12 executions, but noted the supply would likely expire by the end of the year.
Records also indicate Florida has a small supply of potassium chloride — another drug used in the three-drug cocktail, which stops a person’s heart, the Sun Sentinel reported. Their stock will likely run out in February 2017. In March, Florida started purchasing a new drug, potassium acetate, presumably to replace potassium chloride.
Executions across the United States are at a 25-year-low, due in part to the increasing difficulty for corrections departments to obtain the necessary drugs for lethal injections.
The use of etomidate invites more legal challenges to Florida’s death penalty, just as the state mounts an appeal to the U.S. Supreme Court’s February ruling in Hurst v. Florida, which found Florida’s death sentencing procedure unconstitutional because judges had the power to override a jury verdict. The Florida Supreme Court has already stayed two scheduled executions in 2016, while Florida justices mull whether the Hurst v. Florida ruling should retroactively apply to existing death row sentences. Forty inmates have appeals pending.
Florida’s Supreme Court also ruled in October that a state law allowing a non-unanimous jury to deliver a death sentence was unconstitutional. Whether that ruling will be applied retroactively will likely be determined by two cases pending for the state Supreme Court; Lambrix v. Florida and Asay v. Florida, the Tampa Bay Times reported.