UPDATE: Florida execution stayed
on Nov 14, 2007 at 12:58 pm
UPDATE 5:10 p.m. The judge’s order is now available for download, here.
U.S. District Judge Anne C. Conway in Orlando on Wednesday blocked the execution by lethal injection of Mark Dean Schwab, until after the Supreme Court rules in a pending Kentucky case challenging the same three-drug protocol. “The overriding consideration in this case,” the judge ruled, “is that some of the very same issues Plaintiff presents here are currently pending for decision before the Supreme Court of the United States,” citing the case of Baze v. Rees (docket 07-5439). “Not only is the Supreme Court poised to clarify the standard by which the Eighth Amendment is to be interpreted in death cases, but the high court also has before it the constitutionality of using the very chemicals employed in this State as a means of carrying out the death sentence and challenged in the instant action. Simply put, the Court would not issue this stay absent the Supreme Court’s grant of certiorari in Baze.” The judge’s nine-page ruling and stay order can be found by those with PACER accounts on the website of the Middle District of Florida, Schwab v. McDonough, docket 07-1798, entries for Nov. 14. Unless overturned by the Eleventh Circuit Court, the judge’s order would make it unnecessary for the Supreme Court to rule on a pending stay motion by Schwab, discussed below. (UPDATE: The state has sought relief in the Eleventh Circuit.)
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Florida officials urged the Supreme Court on Wednesday to allow the prison warden to go ahead with the 6 p.m. Thursday execution of Mark Dean Schwab, using the lethal injection method. The opposition to a stay (download here) argued that the Florida procedure, newly revised, will ensure that the inmate is fully unconscious before lethal drugs are administered, so there is no risk of pain or suffering as the processs is completed. A 5,000 milligram dose of sodium thiopental will “render the inmate rapidly unconscious and maintain that state of unconsciousness for many hours,” the brief argued. “The inmate will not feel anything when the pancuronium bromide and potassium chloride are injected” to induce paralysis and then death, the state said. (The case is Schwab v. Florida, application 07A383.)
Moreover, the procedure now in place, the state said, provides that the warden, consulting with a medically-trained professional, will determine whether the first step has actually resulted in unconsciousness before any further steps are taken, and will suspend the process if it is determined that an insufficient state of unconsciousness has been achieved.
While Florida uses the same three-drug formula that is in use in 36 states, the state changed its procedures after an execution in December 2006 took 34 minutes to complete, and there was no pause after the first step to determine the depth of unconsciousness. The Florida Supreme Court upheld the constitutionality of the revised procedure in a ruling on Nov. 1. It found no violation of the Eighth Amendment ban on cruel and unusual punishment in the three-drug protocol, as specifically administered in Florida.
State officials argued in opposing a stay that Schwab’s plea for a delay is simply asking the Supreme Court to reevaluate facts that were not in dispute before the Florida Supreme Court about how the procedures now works. And, it added, Schwab is asking the Court to lay down a standard that “an unnecessary risk” of pain and suffering is enough to violate the Eighth Amendment, when the Florida Supreme Court applied that standard and found no violation.
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