Florida’s prison officials are asking legislators to enact more layers of secrecy around the state’s method of executing Death Row inmates, floating a bill that would make confidential any records that “could reasonably lead to the identification of any person or entity participating in an execution.”
The measures would allow the Florida Department of Corrections to obscure the supply chain behind the unique cocktail of drugs used in its lethal injections. The department claims that doing so would prevent “social activists” from pressuring drug manufacturers into blacklisting the state from purchasing their products, but death penalty opponents say that it’s the manufacturers themselves that have sought to prevent their drugs from being used to kill people.
The move is part of a regular ritual in the Florida Legislature: carving out new exemptions to the state’s tradition of open records.
Florida is the only state that uses etomidate, a short-acting sedative, and the first of three drugs in the lethal injection cocktail. Some medical experts say etomidate is inadequate for rendering someone truly unconscious during an execution, leading to excruciating pain for prisoners who receive the fatal doses. Johnson & Johnson, etomidate’s original manufacturer, called for states not to administer it in lethal injections in a public statement prior to Florida’s first execution using the drug.
It’s unclear where the state is getting its execution drugs, and the Department of Corrections is actively defending itself in federal court against five Death Row inmates who claim the state’s methods violate their Eighth Amendment protection against cruel and unusual punishment. The prisoners have attempted to force the state to disclose how it obtains its lethal injections.
The department declined to answer several questions from the Miami Herald about its execution protocols and the effects of the legislative proposals.
But a bill that would exempt more information about lethal injections from public records is already gaining traction in the Florida House of Representatives. The House Criminal Justice and Public Safety Subcommittee advanced the measure on Tuesday, with no pushback and no debate.
If Florida prison officials get the Legislature to approve the measure, it would give them more ways to hide information about the drugs it uses and could ultimately enable them to cover up botched executions, said Virginia Hamrick, an attorney for the open government group opposing the bill, the Florida First Amendment Foundation.
“More sunshine is needed when executions are carried out,” Hamrick said in an interview with the Herald, “not more secrecy.”
Sen. Doug Broxson, a Pensacola Republican, told the Herald he filed the bill at the urging of Department of Corrections officials.
“They are seeing more activity from people who are trying to interfere with their statutory responsibility,” Broxson said. “They are finding a lot more social activity to … cut off drugs that lead to the humane process that we do in Florida.”
For years, the Department of Corrections has refused to disclose which manufacturers it relies on for executions, using the same argument in federal court that it levied to advance the legislation: If the department disclosed where it gets the drugs, it could cause executions to grind to a halt.
“It is well known that once seller and manufacturer information is obtained by death penalty opponents, they heavily target manufacturers and advocate against the use of drugs for lethal injection,” the department argued in a 2019 court filing.
The department “would then have to change its lethal injection protocol (as it has had to do many times in the past for this very reason), and that change would bring about a slew of litigation challenging the new protocol, which would cost the state of Florida hundreds of thousands of dollars.”
Robert Dunham executive director of the Death Penalty Information Center, a nonprofit that compiles annual reports detailing faults in capital punishment, called that argument “nonsense.”
The drugs were designed to be used as medicine, not poison, Dunham said, and pharmaceutical companies are acting out of their own corporate interests, not intimidation from activists.
“The state is not seeking to protect the privacy of the drug manufacturers,” Dunham said. “The state is seeking to prevent the drug manufacturers from learning that it intends to misuse their medicines.”
‘Drowning, asphyxiation, panic and terror’
Florida switched from midazolam, a different sedative, to etomidate, in January 2017, without explaining why. The state has since executed seven prisoners using the etomidate protocol, most recently Gary Ray Bowles in August 2019.
There are more than 320 prisoners currently on Death Row, according to the Department of Corrections website.
Dr. Joel Zivot, an anesthesiologist at Emory University Hospital who has studied the autopsy reports of people killed by lethal injection, said that states using one drug over another has more to do with what they can get their hands on as opposed to “any kind of refinement or improvement.”
“This is simply a question of what they can obtain,” Zivot said.
Though etomidate is a commonly used sedative in medical practice, it can’t be prescribed to kill someone, Zivot said. Unlike other drugs in its class, etomidate maintains the blood pressure of someone who receives it, Zivot said.
Even with a normal therapeutic dose, about 20 milligrams, the drug is known to be painful upon injection, Zivot said. The state of Florida uses about 10 times that — 200 milligrams — to sedate people before execution, according to its latest lethal injection protocol, reissued in May 2021.
“I guess the feeling is that afterwards, there will be death, so there will be no opportunity to complain,” Zivot said.
Autopsies of the people executed by the state of Florida under the etomidate protocols have revealed a condition called pulmonary edema, or excess fluid in the lungs, which can lead to the sensation of suffocating.
Zivot’s colleague, Dr. Mark Edgar — an anatomic pathologist and neuropathologist at Emory University Hospital — reviewed some of those autopsy reports as a medical expert for the five Death Row inmates suing the state corrections department.
In a report, Edgar wrote about the postmortem condition of prisoners who received etomidate based on four autopsy reports.
Three showed signs of pulmonary edema. Edgar concluded that prisoners who receive 200 mg of etomidate faced a “high likelihood” of experiencing “severe respiratory distress with associated sensations of drowning, asphyxiation, panic and terror.”
“It is my expert opinion that acute pulmonary edema is a terrifying, horrific and painful condition in a sensate individual that causes great suffering as the person struggles to breathe without being able to exchange air because of the compromised lungs,” Edgar wrote in the report.
Eyewitness accounts
In the Edgar report, the doctor cites two eyewitness accounts of multiple executions, both of them attorneys representing prisoners being executed.
Robert Friedman gave an account of the death of his client Eric Branch, who was executed using 200 milligrams of etomidate in February 2018.
“One minute after the execution began [Branch] screamed at the top of his lungs, then he yelled out ‘murderers.’ His body was shaking. He appeared to be in obvious distress,” Edgar wrote in the report, summarizing Friedman’s account.
Edgar concluded from the froth present in Branch’s airways that he developed acute pulmonary edema during the execution, “and this is supported by the eyewitness observations.”
Death Row inmates suing the state over lethal injection protocols have also claimed that the state is enacting changes to the protocol over the last seven executions that make it more difficult for witnesses to view what is happening.
Those measures involve covering prisoners with a tented sheet, including their feet. Witnesses at the executions have also observed officials taping prisoners’ hands, which experts say would conceal movement that might indicate a level of consciousness.
Prisoners at recent executions have been positioned away from witnesses so that only their feet could be seen, and not a full side view, the lawsuit claims.
The Department of Corrections has refused to explain why it implemented the changes.
Zivot, the Emory anesthesiologist, said that unfettered access to executions for eyewitnesses is important because it’s the only way to ensure the state is complying with the U.S. Constitution.
“Even though the law turns on the inmate’s experience, it falls on the public to be the eyes and ears and mouth of an inmate who cannot speak for themselves as they die,” he said.
‘Very efficient and humane’
Broxson, the state senator who filed the legislation, said he believes Florida’s death penalty process is “very efficient and humane.”
The Department of Corrections, in his view, is using the “perfect combination of drugs” to ensure it is a painless process for inmates.
Republican state Rep. Patt Maney, a Shalimar attorney who is sponsoring the measure in the House, on Tuesday successfully moved the bill through its first of three committee assignments.
Maney told members of the House Criminal Justice and Public Safety Subcommittee that the measure is meant to help the department “perform its statutory responsibility” and avoid harassment.
Hamrick, the First Amendment Foundation attorney, said that passage of the legislation would render death penalty records “confidential,” meaning the state would no longer have a duty to release them in a public records request.
Though the group doesn’t take a position for or against the death penalty, the First Amendment Foundation has been pushing back against several efforts in recent years by the Florida Legislature to curb what is a public record.
In the case of the execution proposal, Hamrick said that it doesn’t meet the bar needed to justify a public records exemption, which in this case would be to demonstrate that disclosing the information would prevent the state from carrying out executions.
“It’s based on hypotheticals,” Hamrick said. “It doesn’t meet the specificity standard. It’s opening up the door for darkness.”
