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Column: Florida’s Rush to Execute a Prisoner Using an Untested Drug

Last Tuesday, a convicted murderer named William Happ was strapped to a gurney in the death chamber of the Florida State Prison and executed via lethal injection. Happ was given a three-drug cocktail that included midazolam hydrochloride, a fast-acting sedative that had never before been used in capital punishment. Many observers worried that the untested midazolam might wear off before the other drugs took effect, thus subjecting Happ to excruciating pain. Sure enough, the Associated Press reported that Happ apparently “remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.”

Like many death-penalty states, Florida has nearly exhausted its supply of the popular execution drug pentobarbital, and has been frantically searching for an effective substitute. But while other states have halted their lethal injections until they can resolve this problem — just recently, Missouri postponed the execution of Allen Nicklasson due to concerns over the efficacy of the substitute drug propofol — Florida decided to forge ahead and deploy this untested drug. The state’s haste is barbaric and disgusting, and it sends a clear and chilling message: In Florida, the death penalty has less to do with justice than vengeance.

The death penalty is currently legal in 32 states, and in all of those states, lethal injection is the primary execution method. Lethal injection was first used in America in 1982 — in Texas, naturally — and was seen as a more civilized method of execution than the gas chamber or the electric chair. “We said this is really ridiculous. We kill animals more humanely than we kill people,” Dr. Jay Chapman, the father of the modern lethal-injection process, remembered to CNN in 2007.

Chapman pioneered the “three-drug cocktail” execution method, in which the prisoner was administered three drugs in succession. The first, an anesthetic called sodium thiopental, rendered the prisoner unconscious and unable to feel pain from the next two drugs, which paralyzed him and stopped his heart, respectively. The thiopental was what ostensibly made the process humane; if the first drug didn’t work, the prisoner might remain conscious during the rest of the process, which would cause him tremendous pain and possibly violate the Eighth Amendment prohibition on cruel and unusual punishment.

This became an active concern in January 2011, when the manufacturer of sodium thiopental took the drug out of production, citing liability concerns. States scrambled to find a substitute, with many switching to pentobarbital, a sedative that had been used to euthanize animals, but had not yet been used to execute humans. The use of this untested drug drew considerable protest, and, later in 2011, pentobarbital’s manufacturer decided to stop selling it to prisons in death-penalty states, citing its adamant opposition to “the distressing misuse of our product in capital punishment.”

Since then, stockpiles of pentobarbital have dwindled as states again frantically search for acceptable substitutes. The measures some states have taken are questionable. As Slate’s Josh Voorhees noted in July, Georgia passed a law authorizing the state to act in secret when purchasing execution drugs, presumably in order to shield its suppliers from public protest. Other states are using drugs from “compounding pharmacies,” which produce drug mixtures and name-brand knockoffs that are not subject to FDA approval. In an article earlier this year, ScienceLine noted that South Dakota executed an inmate named Eric Robert in 2012 using a compounded version of pentobarbital that had been contaminated with fungus; Robert “reportedly opened his eyes during the execution, which, according to human rights group Reprieve, could be a sign that the contaminated drug did not properly anesthetize him.”

And then there’s Florida. As Slate’s Emily Bazelon reported in June, Florida recently passed the Timely Justice Act, which speeds the state’s execution process. (“Only God can judge,” one Florida legislator said. “But we sure can set up the meeting.”) Happ is the sixth prisoner put to death by Florida this year; a seventh execution is scheduled for November.

The state’s rush to fast-track executions is odd, especially considering Florida’s well-documented history of sending innocent people to death row. But it’s especially bizarre considering the pentobarbital shortage and the lack of any well-established substitutes. Last week, a Florida Department of Corrections spokeswoman assured reporters that the prison system did research and determined that using midazolam⅜“is the most humane and dignified way to do the procedure.’” But, as Reuters noted, the spokeswoman “refused to identify a research laboratory or other source of the department’s scientific data,” or otherwise confirm that the state’s research consisted of anything other than Google searches and wishes. “We’re not talking about details,” she said. “That could impact the safety and security of the process.”

Yes, “the process.” Here’s how the capital punishment process is supposed to work, as I understand it: The state gives a condemned prisoner every possible opportunity to appeal the verdict against him, and if the appeals process takes 30 years, well, so be it; It’s better to wait and be sure than to move too fast and have doubts. Then, when all appeals have been exhausted, the prisoner is executed as humanely as possible. Respect for the prisoner and for the process is what separates a state-sanctioned execution from a lynch mob. Justice requires patience. Vengeance values speed.

By rushing to use an untested execution drug despite valid concerns about its safety and efficacy, Florida is willfully flouting this process, and its lawmakers should be embarrassed. For all it knows about how midazolam works as an execution drug, the state might as well have just handed the victim’s family a rusty knife and told them to go to town on William Happ’s throat.

A mature state does not cut corners. A functional penal system does not act on hunches. If states cannot cite studies that show a drug is safe to use for executions, then they shouldn’t use the drug, period. When it comes to capital punishment, the ends cannot justify the means.

Justin Peters writes Slate’s crime blog, slatecrime.