Judge denies Fla. execution drug challenge

By CURT ANDERSON
The Associated Press
Updated: 1:54 p.m. Wednesday, Aug. 3, 2011
Posted: 12:09 p.m. Wednesday, Aug. 3, 2011


MIAMI — A death row inmate's challenge to Florida's planned use of a replacement drug in executions was rejected Wednesday by a state judge, who concluded that the new lethal injection drug would not result in needless pain and suffering.
Miami-Dade Circuit Judge Jacqueline Hogan Scola joined other judges around the country in finding that the barbiturate pentobarbital is suitable to render a condemned inmate unconscious before two other fatal drugs are administered. Pentobarbital, marketed under the name Nembutal, is replacing a drug whose sole U.S. supplier has stopped making it.
In a 21-page decision, Scola found no evidence of a potential violation of the Eighth Amendment's prohibition against cruel and unusual punishment.
"Usage of pentobarbital does not create an objectively unreasonable risk of suffering," Scola wrote.
The ruling came in the case of Manuel Valle, 61, who was sentenced to die for the 1978 shooting death of Coral Gables Police Officer Louis Pena. His execution would be the first in Florida using pentobarbital, and a divided Florida Supreme Court granted a one-month stay until Sept. 1 to allow time for his challenge to be reviewed.
"This drug has been used for lethal injections in many other states and has already been upheld in three federal district courts," said state Attorney General Pam Bondi. "This man killed a police officer, and his execution is long overdue."
The ruling now goes to the state Supreme Court for final review. A tentative oral argument date is set Aug. 24.
The state switched to pentobarbital earlier this summer because of a shortage of sodium thiopental, which had been a mainstay of lethal injections until its manufacturer halted production. States scrambled to find an alternative, and 18 people have been executed around the country using pentobarbital as a replacement anesthetic since Oklahoma became the first last year.
Valle's attorneys and a medical expert argued at a hearing Tuesday before Scola that pentobarbital was woefully untested in lethal injections and that there was some evidence an inmate suffered in a recent Georgia execution using it. But the state's medical expert said Florida's planned dosage would be fatal by itself and Georgia officials insisted nothing unusual happened in the execution of Roy Willard Blankenship in June.
Scola said she found the state's argument more persuasive.
"A defendant must show an objectively intolerable risk of harm which must be sure or very likely to cause needless suffering," the judge wrote. "Not only has the defendant failed to meet this standard, he has failed to present any credible evidence of any risk of needless suffering."
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