State Justices allow new lethal injection method

By Paul Flemming
news-press.com Tallahassee bureau
Originally posted on November 01, 2007

TALLAHASSEE — The Florida Supreme Court on Thursday unanimously ruled that the state's new lethal injection methods, revised after a botched execution in December, are constitutional.

The decision clears the path for the Nov. 15 execution of Mark Schwab, whose appeals in a separate case were denied Thursday by the state's highest court.

The rulings will send Schwab, and Florida's lethal injection protocols, to federal courts. The U.S. Supreme Court has issued three stays of execution since September since it agreed to consider a Kentucky case and set standards on the constitutionality of lethal injection.

Lawyers for convicted murderer and child rapist Schwab in October argued that Florida's lethal injection methods are unconstitutional. They made oral arguments to the court on the same day justices heard Ian Deco Lightbourne's challenge to the state's procedures.

Calls to lawyers for Schwab and to Attorney General Bill McCollum were not immediately returned.

Schwab's is the first death warrant signed by Gov. Charlie Crist and the first in the state since a moratorium on executions was lifted following an inquiry into the December 2006 lethal injection of Angel Diaz. Diaz took nearly three times as long to die as previous executions. Autopsies showed that the three-drug cocktail Florida uses to carry out lethal injections were injected into tissue rather than directly into his veins.

The Florida Supreme Court Thursday said new training and procedures established by the Department of Corrections are sufficient.

"This Court's obligation is to ensure that the method used to execute a person in Florida does not constitute cruel and unusual punishment," Thursday's ruling said.

Following Diaz's execution, then-Gov. Jeb Bush established a commission to study the state's methods, as did the Department of Corrections. Lower court hearings in Lightbourne's case on those findings and the state's response found the new procedures constitutional.

"Our precedent makes clear that this Court's role is not to micromanage the executive branch in fulfilling its own duties relating to executions," the Florida Supreme Court's Lightbourne ruling said.

The court concluded that the state had met its constitutional requirements:

"After Diaz's execution, the DOC added additional safeguards into the protocol to ensure the inmate will be unconscious before the execution proceeds. In light of these additional safeguards and the amount of the sodium pentothal used, which is a lethal dose in itself, we conclude that Lightbourne has not shown a substantial, foreseeable or unnecessary risk of pain in the DOC's procedures for carrying out the death penalty through lethal injection that would violate the Eighth Amendment protections."

The Lightbourne decision was reflected in Schwab's case and was key to the court denying his appeals.

Schwab kidnapped, raped, tortured and murdered 11-year-old Junny Rios-Martinez of Cocoa on April 18, 1991. Just a month earlier, Schwab was released from prison after serving less than half of an eight-year sentence for raping a 13-year-old boy in Cocoa Beach.

In its decision denying Schwab's appeals, the Florida Supreme Court said changes the state has made to its lethal injection protocols meet constitutional standards.

"Moreover, the protocol has been amended since Diaz's execution so that the warden will ensure that the inmate is unconscious before the pancurionium bromide and the potassium chloride are injected," the court wrote.