Inmates Michael Yowell and William Happ were on death row for more than 40 years combined. In Texas, Yowell shot his father, strangled his mother with a cord and burned their house to the ground in May 1998. In Florida, Happ kidnapped a 21-year-old girl, beating, raping and strangling her on Memorial Day weekend in 1986.
Before this month, Yowell and Happ were only connected by their lives as death-row inmates. Now, they will be connected in their deaths, both executed with controversial new drugs.
Texas and Florida are two states that can no longer use pentobarbital, the drug that 16 states have relied on in the last four years. Last week, Yowell was the first inmate in Texas to be executed with the compounded version of pentobarbital, a version of the drug that is not subject to federal oversight. On Tuesday in Florida, Happ will be the first inmate in the U.S. to be put to death using midazolam hydrochloride, a sedative that hasn’t been tested in executions.
Since 2010, pentobarbital has been the drug used for almost all of the lethal injections in the U.S. But medical organizations that produce pentobarbital in the past couple of years have agreed to prohibit the sale of these drugs to state prisons for the purpose of executions. Now, the supply for the state prisons has almost run dry.
The scarcity of the most commonly used lethal-injection drug of the past four years in the U.S. has left state prisons questioning where to look to next. Among those states are Texas and Florida, which are using untested workarounds that have come into question by human-rights groups and death-penalty experts.
“It’s a desperate act on the part of states,” says Deborah Denno, a Fordham University law professor. “It’s a dangerous act because it’s extremely risky. These states just can’t go jumping from drug to drug to drug.”
The mature product
In February 2009, Danish drugmaker Lundbeck purchased Illinois-based Ovation Pharmaceuticals for about $900 million. Lundbeck lauded the transaction as a “very important milestone” for the company, calling Ovation an “excellent match.”
“One of the reasons for buying [Ovation] was that they had a number of mature products, and pentobarbital was one of them,” says Anders Schroll, director of corporate communications for Lundbeck. “We looked at them and said, ‘We wanted that mature product.’”
Nembutal, the Lundbeck product containing pentobarbital, was first used in executions in Oklahoma and Ohio, and 13 states made the switch to the drug in 2011. But the Danish drugmaker was uncomfortable with the drug's usage, and doctors and human rights organizations pressured the company to end its supply to the U.S. In July 2011, Lundbeck restricted prisons from buying the drug. In December 2011, the company went one step further, selling its pentobarbital rights to Illinois-based AKORN in a the deal that prohibited AKORN from selling pentobarbital to prisons for executions.
“It was our responsibility to give access to people who needed pentobarbital and restrict it to prisons,” Schroll says.