First post-Baze maneuvers
on Apr 17, 2008 at 3:57 pm
The state of Florida moved quickly on Thursday to get Supreme Court permission to carry out the execution of a death-row inmate, and a prisoner in Mississippi asked the Court to rule itself or tell a lower court to rule on his challenge to that state’s execution procedure. These were the first filings in the Court in the wake of Wednesday’s ruling upholding the basic elements of execution by use of lethal drug injections.
These filings, indicating that developments following the decision in Baze v. Rees (07-5439) will unfold rapidly, came in cases in which the Justices had delayed scheduled executions at a time when the Court was not permitting any state to go forward with a death sentence.
The two filings demonstrated that death-penalty states believe that the informal moratorium the Court has had in effect is now entirely over, so new executions may be scheduled as the states choose, and that lawyers for death-row inmates in states other than Kentucky are going to try to keep the inmates away from the death chamber while contesting the specifics of other states’ procedures.
Florida filed a motion to vacate the stay the Supreme Court had issued on Nov. 15 in the case of Mark Dean Schwab (pending petition 07-10275); it also filed a brief opposing Schwab’s appeal.  The state argued: “Schwab has at all times taken the position that this Court’s decision in Baze will dictate the resul tin his case. That decision has been issued. Under Baze, Schwab has no likelihood of success on his constitutional claim, which is foreclosed by Baze, which, of course, is binding precedent.”
In opposing review of Schwab’s pending petition, the state contended that Florida’s lethal injection procedures “are substantially similar” to Kentucky’s procedures, upheld in the Baze decision. The Florida process, the state attorney general argued, “more than satisfy” the constitutional standard spelled out in Baze. He noted that Florida, in fact, uses more of the initial drug in the three-drug protocol — the first drug is used to cause unconsciousness — than Kentucky does.
In the new Mississippi filing, a supplemental brief, lawyers for death-row inmate Earl Wesley Berry contended that the lethal injection procedures used in that state provides fewer safeguards than under Kentucky’s procedures for avoiding “serious harm” to the inmate during the execution process. The case is Berry v. Epps, 07-7348. The Court stayed his execution on Oct. 30.
The brief argued that “the Mississippi procedure…deviates in several important ways, not just from Kentucky’s practice, but from the practice used in other states.”
It gave these examples: Mississippi uses a 2-gram dose of the first drug (sodium thiopental, “one gram lower than all but three other states”; Mississippi requires a “maximal concentraion” in mixing thiopental with IV fluid; it does not have “minimum qualifications for the IV execution team”; it does not provide “the training and practice sessions required in other states”, and, it has “no ‘back-up plan’ in the even of failed IV insertion or other errors in administrration of the chemicals.”
