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Florida may be running out of execution drug, records show

Records show that Florida has not purchased midazolam in over a year and that whatever supply is left is quite old.
Records show that Florida has not purchased midazolam in over a year and that whatever supply is left is quite old.
Published Jul. 18, 2016

Florida may be running out of the controversial and difficult-to-procure sedative that the state uses to execute prisoners on death row.

Records of the state's lethal injection drug supply logs show that Florida has not purchased midazolam in over a year. The logs, which are maintained by the state Department of Corrections, indicate that while Florida may still have 250 vials of the drug — enough for at least 12 executions — it is possible the drug has either already expired or will likely expire by the end of this year.

Citing the "sensitivity" of the information contained in the logs, a spokeswoman for the department declined to answer any questions about the state's lethal injection drugs, including whether Florida currently has enough to carry out an execution.

Although the records leave many questions unanswered, they suggest that Florida has joined the ranks of states struggling to obtain midazolam, a drug whose use has been upheld by the U.S. Supreme Court but whose effectiveness and reliability have been called into question. Under pressure from opponents of the death penalty, sources for the drug have become increasingly difficult to find.

Last month, Arizona announced it could no longer perform executions, as its midazolam supply had expired and it could not find a way to buy more of it or other sedatives like pentobarbital and sodium thiopental. And although Arkansas says it has all the drugs it needs to carry out executions, its future is uncertain as its supplier of the current drugs has refused to provide more.

Florida's three-drug lethal injection procedure calls for midazolam to be administered first to render inmates unconscious before two other drugs — vecuronium bromide and potassium chloride — are injected. Critics of midazolam point to its use in several botched executions in 2015 and argue that it does not fully sedate inmates and so violates the Eighth Amendment's ban on cruel and unusual punishment.

The logs, obtained by a public records request, show that Florida began stockpiling midazolam in June of 2013, several months before officials publicly announced plans to make the then-untried sedative part of its lethal injection protocol. The switch was necessary, they said, because the state was running out of pentobarbital and the drug's maker prohibited its use in future executions.

Over the course of 2013, Florida purchased nine shipments of midazolam, according to the Department of Corrections' logs. Some contained as few as 10 vials, half the number needed for a single execution; others had as many as 480 vials. All of these vials have since expired, forcing the state to throw out hundreds of containers of midazolam before they could be used in executions.

In 2014, the department recorded three midazolam purchases. In 2015, there was only one — 70 vials that have already expired. So far this year, the Department of Corrections has not purchased the drug.

Unopened, midazolam has a shelf life of three years. But ever since Florida began buying the drug, the state has never purchased a supply that remained usable for even a full two years.

Whatever supply of the drug Florida has left — the logs show 250 vials remain — is quite old. Its purchase dates back to late 2014 and because the records don't provide an expiration date, and have not been updated recently, it's unclear if these vials are still usable. Unless they have a significantly later expiration date than all of the other midazolam Florida has bought, it's doubtful they will last into 2017.

David Lubarsky, chairman of anesthesiology at the University of Miami, said the unusually short lifespan of Florida's drugs is another symptom of midazolam's increasing unavailability.

"Usually it's sold shortly after manufacture," said Lubarsky, who has testified against midazolam's use in executions. "But the drug companies are refusing to sell it to the Department of Corrections, so therefore the drugs are coming from a secondary source that's distributing them."

In one respect, the increasing scarcity of lethal injection drugs may have come at a good time for Florida officials, as the death penalty is currently on hold.

In January, the U.S. Supreme Court struck down part of Florida's capital punishment system, forcing state lawmakers to rewrite the statute and inspiring new legal challenges that are currently before the state Supreme Court.

Florida's Supreme Court justices began their summer break last week, prompting speculation that they are unlikely to issue decisions in a series of high profile death penalty cases until after they return from recess in late August.

On the other hand, if Florida still has a viable supply of midazolam, the clock is ticking. Even if the justices allow executions to resume, there are other issues that have to be litigated that could take weeks or months to resolve, potentially causing the state's remaining drugs to expire before an execution could be held.

Last month, lawyers for seven Arizona death row inmates who are challenging the state's use of midazolam sent Florida officials a subpoena seeking information about its lethal injection drug supply, its protocol, and the expiration dates of its remaining stock. In response, Florida lawyers asked a federal judge to quash the subpoena, arguing that all of the information the inmates sought was protected and confidential.

As in other states where capital punishment remains legal, Florida Department of Corrections officials have refused to name their supplier.

"We don't know where they're getting it, the quality of it, or whether it's pure, and that's sort of the problem with a lack of transparency," said Maria DeLiberato, a Tampa attorney who represents inmates facing capital punishment. In 2014, DeLiberato filed a lawsuit in federal court on behalf of five death row inmates, challenging Florida's use of midazolam.

If the state can no longer buy the drug, it will have to find a replacement in order to carry out executions, she said.

"They would have to change their protocol," she said, "or find another way to get it."

Contact Anna M. Phillips at aphillips@tampabay.com or (813) 226-3354. Follow @annamphillips.