Fordham Law

Controversy surrounds scheduled execution of Florida man

Deborah Denno in First Coast News, October 15, 2013

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A Florida man who's been on death row for nearly 30 years is scheduled to die on Tuesday.

But the execution is drawing more criticism than usual from death penalty opponents who say the state is taking a huge risk and trying to make a political statement.

William Happ, 50, was convicted after the death of a 21-year-old northern Illinois woman in Citrus County, Florida in 1986.

Angie Crowley was driving from the Fort Lauderdale area to Yankeetown to visit a friend over Memorial Day weekend when Happ abducted, beat, raped and strangled her to death.

Happ's execution by lethal injection will be the sixth one the Florida Department of Corrections has carried out so far in 2013.

According to agency spokeswoman Misty Cash, only one more is scheduled for the calender year at this point.

That means Florida is on track the execute seven condemned inmates in 2013, the most for a single year in about 30 years.

By comparison, Florida leads the pack with Texas.

It has executed 14 inmates this year. Florida will remain in second after its sixth execution today.

Oklahoma and Ohio follow with four and three executions this year respectively.

The death penalty is only legal in 32 states, but very few actually carry out executions.

Mark Elliott is the Executive Director of Floridians for Alternatives to the Death Penalty and told First Coast News it seems leaders in Florida are executing inmates more often for political purposes.

"It's a political issue. It's not a medical issue. It's not a criminal justice issue. In Florida, it's 100% political," he said in a phone interview.

Elliott pointed out that former Florida Governor Jeb Bush once halted executions out of procedural concerns, but that Governor Rick Scott has taken legal action to speed them up.

Still, the state's execution rate is not the only reason for added attention on Happ's scheduled death.

He is set to be the first inmate in Florida history to be killed with a new lethal injection drug.

Florida is one of the last states to still use a cocktail of three drugs to carry out lethal injections.

The first is meant to make the condemned inmate unconscious. The second is meant to paralyze them, and the third is meant to stop their vital organs.

Florida, though, is not unlike many other states in that its first drug, pentobarbital, is no longer available, and that its current supply is dwindling.

So, it is turning to a new sedative called midazolam hydrochloride that has never been used in Florida before.

Deborah Denno is a leading expert on lethal injection and a law professor at Fordham University.

Denno told First Coast News in a phone interview that Florida could be opening itself up to legal challenges with the new drug.

"Florida is taking a huge risk," she said.

Denno said midazolam hydrochloride has also never been used for executions in any other state in history, but that it is FDA-approved.

The concern among death penalty opponents, though, is that Florida might be violating Happ's constitutional rights.

Elliott said he might become the victim of undue suffering if the new drug does not have the sedating effect the state says it will.

He said that would mean Happ would be more likely to feel what he calls the painful effects of the second and third, more lethal drugs.

"But we'll never know. The only person who could tell us is the person who is going to die," Elliott said.

Denno added that Florida is in the minority of states that are still using an injection cocktail.

"Eleven states allow for the use of one drug," she said, adding that she believes this process is more humane because it lacks a paralytic agent.

In response, Cash told First Coast News the state has done its research and determined the new drug will be a humane and dignified way to carry out death sentences.

Legal action is pending, meanwhile, over the decision to use midazolam hydrochloride.

Attorneys for death row inmate Ehteria Jackson have filed a complainted in U.S. District Court in Jacksonville.

They argue the new drug poses risk and violates Jackson's Eighth Amendment rights.

Oral arguments in the case are set for November 6, meaning if there is any change it will not happen in time to have an impact on Happ.

Cash confirmed his execution and all future executions are scheduled to be carried out as planned.

Happ is scheduled to die at 6 p.m. at Florida State Prison in Starke.