Florida

Supreme Court: Execution drug used in Florida not ‘cruel and unusual’

FILE - This Oct. 9, 2014, file photo shows the gurney in the the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. On Monday, June 29, 2015, The Supreme Court voted 5-4 in a case from Oklahoma saying that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment. Florida wants to start up executions again after a U.S. Supreme Court ruling Monday cleared a drug used in the state’s lethal injection cocktail.
FILE - This Oct. 9, 2014, file photo shows the gurney in the the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. On Monday, June 29, 2015, The Supreme Court voted 5-4 in a case from Oklahoma saying that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment. Florida wants to start up executions again after a U.S. Supreme Court ruling Monday cleared a drug used in the state’s lethal injection cocktail. AP

Florida’s rapid pace of executions — derailed in February because of a pending U.S. Supreme Court case — is cleared to start up again. And the state isn’t wasting any time.

Just hours after the high court ruled that a drug used for lethal injections in Florida is allowed under the Constitution, Attorney General Pam Bondi filed to lift a state court order blocking executions.

Specifically, Bondi is asking the Florida Supreme Court to move forward with the execution of convicted quadruple-murderer Jerry Correll, who would be the 22nd person put to death since Scott became governor in 2011.

He would also be the first person executed since January. The six-month break is unusual for Gov. Rick Scott, who has signed death warrants at a faster pace than any governor in recent memory. Former Gov. Jeb Bush ordered 21 executions in his eight years in office, and Charlie Crist waited a full year and a half before issuing his first death warrant.

In Florida, executions take the form of lethal injection. The process requires a series of three drugs: one to knock out and numb the inmate, followed by one that causes paralysis and a third to induce cardiac arrest.

At the heart of the “cruel and unusual punishment” case is the first drug, midazolam, which is used in just four states, including Florida. Critics say it doesn’t reliably render people unconscious, and it has been blamed for two highly publicized botched executions in Oklahoma and Arizona.

The U.S. Supreme Court found Monday that there isn’t enough evidence to show that midazolam doesn’t work, and the inmates from Oklahoma who brought the case to the court didn’t meet the high standards needed to declare a method of execution unconstitutional. Plus, wrote Justice Samuel Alito, there will always be some risk of pain in death of any kind.

“After all, while most humans wish to die a painless death, many do not have that good fortune,” he wrote. “Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

Experts say that Monday’s ruling in favor of midazolam raises bigger issues about the constitutionality of the death penalty itself, and Florida may play an outsized role in what happens.

“Florida is going to be the center of litigation in the future,” said Stephen Harper, a former Miami public defender who spent much of his career working on death penalty cases.

He points to another Florida death penalty case that the U.S. Supreme Court will take up in its next term beginning in October. Within the next year, he said, the justices could declare unconstitutional the process Florida uses to sentence people to death.

The case involves Timothy Hurst, who was convicted of murdering a coworker at a Popeye’s fried chicken restaurant in 1998 in Escambia County. By a seven-to-five vote, the jury sentenced him to death but didn’t agree unanimously on either of the aggravating factors that led them to consider putting him to death.

The outcome of Hurst’s case in the Supreme Court will have more impact than Monday’s decision, says Harper.

In the meantime, death penalty opponents, including Floridians for Alternatives to the Death Penalty, have called for the state to stop executions. Right now, 395 prisoners are waiting on death row for the governor to sign their death warrant or for an appeal to be successful.

The Hurst case “directly affects the death penalty in Florida,” executive director Mark Elliot said. “Executions should be stayed until that decision comes down.”

Harper predicts the issue will be settled for good within five or 10 years. Monday’s ruling — and strong language opposing the death penalty from Justices Stephen Breyer and Ruth Bader Ginsburg — represents the beginning of a debate within the Court, he said.

“The bigger question is if the death penalty is constitutional or not,” Harper said. “And the first shots were fired with this.”

Contact Michael Auslen at mauslen@tampabay.com. Follow @MichaelAuslen

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