On Tuesday 15th October William Happ was executed by lethal injection in Florida for the rape and murder of Angie Crowley in 1986. The execution has received notoriety because it involved the use of midazolam hydrochloride which had never been tested on a human for this purpose. The new drug was first administered to induce unconsciousness, followed by pancuronium bromide to induce paralysis and finally potassium chloride to cause cardiac arrest.
This situation has occurred due to a shortage of the barbiturate pentobarbital, with Florida’s stocks set to expire next month. The change was forced after Danish pharmaceutical company Lundbeck took steps to ensure that its sedatives could not be used in executions. This is not an isolated incident, Reprieve have conducted an on-going campaign called the Stop the Lethal Injection Project which has led to an export control being put in place in the UK to prevent drugs being exported to the US for use in executions and in December 2011 the European Commission enacted legislation to prevent exports to the US for the same from the whole of the EU.
This is to protect these manufacturers from being associated with executions as their products were originally designed to help with medical procedures not to assist in the extinguishing of life. This is also designed to protect the companies from exposure to potential lawsuits which may arise from their drugs being used in executions.
The US’s inability to acquire the drugs traditionally used in their lethal injection procedures has led them to search for alternatives, hence the introduction of midazolam hydrochloride. The problem was that the drug was untested, and fears arose that if the drug did not work effectively it may constitute ‘cruel and unusual punishment’ prohibited by the Eighth Amendment.
The importance of the drug working effectively is signalled by the Supreme Court of the United States of America’s decision in Baze v. Rees [553 U.S. 35, 53 (2008)] wherein the ruling states:
“It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.”
Given that the drugs are not administered by trained medical personal, as to do so would be a breach of the Hippocratic Oath, the chance of improper administration is high, combined with the unknown effect that the new drug would have the execution of William Happ is quite rightly considered an experiment as Richard Dieter the Executive Director of the Death Penalty Information Centre in Washington has said.
The Associated Press reported that Happ remained conscious longer and made more body movements after losing consciousness than other inmates recently executed using the old drug combination. A cause for concern, but ambiguity remains over whether Happ suffered more than he would if the barbiturate pentobarbital had been used.
A spokesperson for the Florida Department of Corrections refused to comment on how they could be sure that the new drug would not inflict pain and suffering but did say that research had been conducted and the decision taken that this was the “most humane and dignified way to do the procedure.” The spokesperson also refused to give details of any data or research facility as this could compromise the
safety and security of the process, meaning that the supplier of the drug may also remain anonymous.
To say that a procedure is the most humane is not to say that it is humane and given the prohibition contained in the Eighth Amendment this is something which must be recognised. It remains to be seen whether the research conducted was thorough and any implications explored to an acceptable standard and by whom, before the drug was administered, but this information may never be made available. In addition, whether suitable information was available to ensure that an appropriate dose was administered and given the lack of medical expertise by those carrying out the procedure what impact this may have had.
It would appear that the State of Florida and the Florida Department of Corrections were so keen to execute William Happ that they conducted an execution and hoped that all would go well. They could not be sure that the procedure would be humane and we cannot be sure whether it was or not when it was carried out. The nature of the procedure hides the reality, unconsciousness followed by paralysis, step two masks all failings of step one and hides suffering caused by step three.
To suggest that someone has not had pain or suffering inflicted upon them because they failed to exhibit the symptoms following their paralysis is utterly worthless as evidence. Likewise it cannot be argued effectively that suffering did occur based on the reaction of the person, but the issue is whether the presumption should be: that no suffering is caused until it can be proven; or whether suffering is assumed until it can be proven otherwise. Given the Eighth Amendment’s prohibition of cruel and unusual punishment, a strong argument can be made for the latter.
Whether the continuation of a policy which prohibits the US from acquiring drugs used in lethal injection procedures leads to the abandonment of the process may become clear in the coming years. There may however be unintended consequences, highlighted by this case in particular. If the drugs which cause death in the most humane way are not available, then the next best alternative is used instead, and should that become unavailable the process continues on down the line. The result being that each time the process becomes slightly less humane but remains within the acceptable boundaries so as not to be described as cruel and unusual punishment.
Making it more difficult to conduct executions is a way of slowing the process but unless the ideology of those who still believe in execution can be altered or removed from positions whereby their views can be enacted, to allow for abolition, there will always be another drug or method by which executions will be carried out.