The United States Supreme Court has stayed the execution of Herbert Smulls by the State of Missouri, but the argument isn’t because Missouri is doing some strange new combination of untested drugs in a lethal injection method – no, the argument surrounds whether or not the identity of the supplier of pentobarbital must be revealed.

Obviously, lots of people would like to know who is providing pentobarbital to Missouri, since the lack of supply of this drug for lethal injections in other states has led to Ohio and Florida and other states finding new alternative drug cocktails in order to execute people.

(For more information, read our earlier posts regarding the recent Ohio, Oklahoma, and Florida execution processes.)

Meanwhile, news is that other states are considering other forms of execution as lethal execution methods get so difficult based upon drug supply issues.

This wouldn’t be so hard to do as some might think:  many states have valid laws on the books for executions by firing squad, gas chamber, electric chair, and hanging.  See our earlier posts for details. 

Image above:  Gas Chamber used for Executions

Dennis McGuire was executed by the State of Ohio using a new two-drug combination that had never been used in an execution in Ohio, or anywhere else for that matter.  Many warned about the possibility that this lethal injection method would be the very cruel and inhuman type of death that the U.S. Constitution prohibits.

Ohio went ahead anyway. 

Now, media reports are quoting witnesses to the execution that Dennis McGuire didn’t pass away on that gurney quickly or quietly.  For 10 minutes, witnesses watched as McGuire choked for breath, gasping and straining against the restraints, struggling for air.

Included among those witnesses were his federal public defenders, his daughter, son, and daughter-in-law. 

Watch Columbus Dispatch reporter Alan Johnson’s recounting of what he saw here.

Of course, McGuire had been convicted of a violent crime – but comparing the death for which he was convicted with the death he had to endure in his execution is missing the point here.

Constitutional protections exist to prevent inhumane executions by the government and in states like Ohio and Oklahoma (remember Wilson’s "I feel my whole body burning" last week"?) where these untried drug combinations are being used in capital punishment – well, it’s beyond shocking and no one should be surprised that there are calls now for an immediate moratorium on the death penalty in Ohio now.

As for his children?  They are reportedly suing in federal court for the wrongful death of their father in this execution. Watch the Johnson video above for details here.

The State of Oklahoma executed Michael Lee Wilson yesterday by lethal injection.

News media reports are that almost immediately after the injection process began (within 20 seconds), Wilson said, ‘I feel my whole body burning‘  yet his body didn’t react in such a way that any of the witnesses could see his body reacting to the drugs.

According to the State of Oklahoma’s site, the drugs used in Oklahoma executions are:  (1) Sodium Thiopental or Pentobarbital – causes unconsciousness; (2) Vecuronium Bromide – stops respiration; and (3) Potassium Chloride – stops heart.

Thomas Knight Executed Using Midazolam Hydrochloride by State of Florida

Just the day before, the State of Florida executed Thomas Knight after he lost his fight against the lethal injection execution method used by Florida executors which involved a new drug, midazolam hydrochloride, because Florida had run out of pentobarbital. 

Knight’s lawyers argued that the lethal injection method was unconstitutional because these new drug cocktails have not been medically and scientifically shown not to be cruel and unusual means of executing people. 

Ohio Fight Over 2-Drug Execution Method for Dennis McGuire Lethal Injection

Meanwhile, in Ohio, there’s a fight because Ohio wants to use the drug that Florida used in the Knight execution, midazolam hydrochloride, with one other drug — a TWO drug cocktail — to execute Dennis McGuire.  Medical experts and attorneys are fighting in federal court on the constitutionality of this new lethal injection method. 

Does any of this bother you? 

The stay was ordered and a hearing was ordered, too.

The Florida Supreme Court ordered that a judge in Bradford County hold an evidentiary hearing on the drug midazolam hydrochloride and whether or not it is safe and effective for use in killing human beings as part of a state execution of capital punishment.

Note that Nathan Knight’s execution would not be the first Florida execution to use this drug; two Florida executions (William Happ; Darius Kimbrough) have already used midazolam hydrochloride in lethal injection executions since October 15, 2013, because the state has run out of pentobarbital – see our earlier posts.

According to the Florida Supreme Court Order, there can be no execution of Thomas Knight until after December 27, 2013 – and after this hearing on the drug has taken place.

Bradford County Circuit Judge Phyllis Rosier held the hearing as ordered by the Florida Supreme Court.

The hearing took two days, and one expert for each side (prosecution and defense) took the stand to provide opinion evidence regarding whether or not midazolam hydrochloride effectively prevents pain in humans sufficiently for its use in a lethal injection execution. (One of Knight’s arguments: Happ moved in a manner during his lethal injection execution that suggested midazolam hydrochloride might not work to prevent pain.)

Judge Rosier ruled that midazolam hydrochloride in the three drug cocktail used for lethal injection executions by the State of Florida does not constitute cruel and unusual punishment: there was “no credible evidence” to show any suffering would result from the use of this drug if used in sufficient dosage.

What about Happ’s movement? The judge ruled that no evidence was presented to support the argument that the movement was caused by pain or demonstrated suffering on the part of Happ.

What happens now?

The Florida Supreme Court will consider Judge Rosier’s ruling — and will hear arguments in the case next week (on December 18, 2013).

In the Terry Lenamon Online Library now: 

Florida Supreme Court Stay in Death Row Inmate Thomas Knight’s Challenge to Use of Midazolam Hydrochloride…

Yesterday at six o’clock in the evening, Darius Kimbrough was executed by the State of Florida Department of Corrections after being sentenced to death in 1994 for the 1991 murder of Denise Collins of Orlando. Once again, Florida execution practices were hampered regarding the method of execution involving a lethal injection cocktail because Florida no longer has any pentobarbital in its inventory to use in these capital punishments.

And once again, that dilemma has been resolved by the authorities by using midazolam hydrochloride in the lethal injection procedure. Kimbrough is the second man executed in Florida using this drug.

As we’ve posted about before, this drug is not tested. William Happ was the first man to be executed in a process where the new untested drug, midazolam hydrochloride, is injected first as a sedative with two other drugs then being injected into the body to paralyze the person and then stop the heart from beating.

This three drug process took 18 minutes for Darius Kimbrough to die. Was he sedated or was his paralysis preventing him from evidencing pain? We don’t know.

Kimbrough was not part of the ongoing appeal from several Florida Death Row inmates arguing that the use of midazolam hydrochloride is cruel and unusual punishment in violation of the U.S. Constitution.

He did write a letter to the Florida Supreme Court to voice his concerns about this controversial drug. It didn’t matter.

We’ve been monitoring how it’s getting harder and harder to execute people in this country by lethal injection because the lethal drugs for the lethal injection just aren’t available to the states any longer, or at least not much supply is left.

There’s been chatter about returning to earlier forms of execution (like the firing squad or the electric chair), things are getting so bad for the executioners out there.

That’s a big jump for many, though: returning to those old, historic methods when everyone seems to prefer using a syringe and a gurney. So deals have been made for the stuff.

Texas: “Nevermind” Says Pentobarbital Supplier

Recently, over in Texas, a quiet deal was made between a Texas compounding pharmacy and the State of Texas to provide the needed pentobarbital supply for lethal injections; however, as soon as the identity of the supplier was made public, the company wanted to nix the deal and asked the State of Texas to return the pentobarbital it had purchased.

The letter sent by Jasper Lovoi, owner of The Woodlands Compounding Pharmacy, to the Texas Department of Justice can be read in its entirety online, courtesy of Grits for Breakfast.

Here’s the gist of it, quoting from Lovoi’s letter:

… Now that this information has been made public, I find myself in the middle of a firestorm that I was not advised of and did not bargain for. Had I known that this information would be made public, which the State implied it would not, I never would have agreed to provide the drugs to TDCJ…. I must demand that TDCJ immediately return the vials of compounded pentobarbital in exchange for a refund. … Otherwise I may have to ask the Court in the prisoners’ lawsuit to consider my concerns.

Texas’ response? Too bad, so sad, Mr. Lovoi.

The State of Texas has refused his request to return the pentobarbital – and Mr. Lovoi may be stuck here because, as Grits points out, no matter the implications in his phone conversations with agency representatives, the Texas Public Information Act provides for the disclosure of the drug supplier.

Now, Texas has enough pentobarbital to complete its execution schedule for 2013.

Florida: A Whole Different Ballgame

While Texas is satisfied with a compounding pharmacy’s pentobarbital for its lethal injection executions, the State of Florida is opting for another chemical altogether in this Lethal Drug Shortage. This week, the Florida Department of Corrections will be using a brand-new, never before tried execution method in the execution of William Happ, a 27-year resident of Florida’s Death Row.

The Florida alternative is midazolam hydrochloride, sold under the name “Versed.” Versed is a drug used in hospitals as a sedative before someone has surgery; it has never before been used in any execution.

Unless something happens to halt things, which is unlikely since Mr. Happ has waived any additional legal appeals on his behalf to halt the execution, the State of Florida will use this new execution method, midazolam hydrochloride, on Mr. Happ in an execution scheduled for tomorrow (October 15, 2013).

Image:  William Happ is scheduled to die tomorrow through the use of a lethal drug injection using a drug never before used on humans for this purpose.  

 As executioners are finding it more and more difficult to find drugs to use in lethal injections (see our prior post on this), discussion has begun on an alternative to injection as a way of killing for capital punishment.

Recently, an opinion piece on CNN.com written by Robert Blecker, a law professor at New York Law School, has gained lots of attention.

Grits For Breakfast, a noted criminal justice blog based in Austin, Texas, supports his suggestion that firing squads be the alternative chosen by states for future executions.

Sentencing Law and Policy, another well-respected blog published by Ohio Law Professor Douglas Berman, also points to Blecker’s article favorably.  (Comments here are very interesting.)

Firing squads instead of lethal injection?  Guess it would be a lot easier to find enough bullets.  

And, history shows firing squads are fast, cheap, and effective as shown in the photograph below from the National Archives, where  "...German General Anton Dostler’s body slumps toward the ground after being executed by a firing squad at Aversa, Italy. The general was convicted and sentenced to death by an American Military Tribunal."