U.S. Supreme Court stays Florida execution

The case is the latest showdown over whether lethal injections should be delayed until a key death penalty decision.

By , Staff writer

A Florida death row inmate has been granted a stay of execution by the US Supreme Court in an action that offers further evidence that a de facto national moratorium on executions is in place.

The stay, announced Thursday afternoon, came four hours before Mark Dean Schwab was scheduled to be executed by lethal injection at 6 p.m.

Lawyers for Mr. Schwab asked the justices to intervene in light of the Supreme Court's decision in late September to hear a Kentucky case challenging that state's use of a three-drug protocol to carry out executions by lethal injection.

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The Schwab case represents the latest showdown over whether pending executions should be postponed until after the Supreme Court has heard and decided the Kentucky case, Baze v. Rees.

Florida uses a similar three-drug protocol and Schwab's lawyers argued that their client's death sentence should be postponed to ensure that Florida's procedures comply fully with any new constitutional requirements that might be announced by the high court in the Kentucky case.

Capital punishment opponents were expecting the execution would be blocked.

"There is no reason to hurry," says Mark Elliott of Floridians for Alternatives to the Death Penalty. "This person, no matter what happens, is going to die in prison. The only question is when and how."

Officials in Florida had argued that there was no reason to wait. They said they've already solved any constitutional problems by requiring that condemned inmates in Florida be unconscious before two lethal chemicals are injected.

Schwab is on death row for kidnapping, raping, and murdering an 11-year-old boy from Cocoa, Fla., in 1991.

The Florida Supreme Court and other state judges had refused to grant a stay. On Wednesday afternoon, a federal judge in Orlando stopped the execution. Then, on Thursday morning, a federal appeals court panel in Atlanta vacated that stay.

The action moved the case to the US Supreme Court, where both sides had already filed briefs.

In anticipation of the Kentucky case, some 16 executions have been stayed – four of them by the high court itself. No executions have taken place since Sept. 25, but several states – like Florida – have tried.

Analysts point to the stays as proof of a de facto moratorium on lethal-injection executions. Stays have been granted in Kentucky, Texas, Nevada, Virginia, Arkansas, Ohio, Georgia, Tennessee, Alabama, Mississippi, Pennsylvania, Arizona, and Florida.

The next potential showdown could come Dec. 6 with the scheduled execution of Alabama death row inmate Thomas Arthur.

Opponents of capital punishment say they aren't surprised death penalty states are reluctant to postpone executions.

"You have to hit some states over the head with a two-by-four," says David Elliot of the Washington-based National Coalition to Abolish the Death Penalty.

The most common argument by states seeking to press forward with an execution has been that death row inmates were using the Kentucky case as a last-minute delaying tactic. Judges are barred by law from allowing inmates to manipulate the system in that way. But the Supreme Court itself appears to have permitted such a tactic when it stayed an execution in Mississippi last month.

Like other states, Florida argued that the defendant's lawyers are trying to exploit the system. But that is not Florida's primary argument.

Unlike most other states, Florida says it has reformed its lethal injection procedures in a way that prevents the constitutional issues in the Kentucky case from ever arising.

Lawyers in the Kentucky case are asking the Supreme Court to clarify the Eighth Amendment standard of what constitutes cruel and unusual punishment. Does the amendment bar only the "wanton infliction of pain" during an execution, or does it provide a wider, more protective shield against any "unnecessary risk of pain and suffering?"

The central concern is the possibility that the three drugs might be administered too soon together without allowing enough time for the first drug, a strong anesthetic, to render the condemned inmate unconscious, and thus unfeeling.

Experts have warned that if the first drug does not take hold, the injection of the second and third drugs will cause the inmate excruciating pain.

In its briefs in the Schwab case, Florida argues that under its new lethal-injection protocol, enacted in August, condemned inmates will feel no pain and endure no suffering.

Although the state uses the same three-drug protocol at issue in the Kentucky case, Florida officials stress that under the Florida protocol, the prison warden must physically verify that the first drug, the anesthetic, has taken hold before the other two drugs can be injected.

"Florida's execution procedures are designed to eliminate the possibility of any conscious pain and suffering," writes Senior Assistant Attorney General Kenneth Nunnelley in his brief to the US Supreme Court filed Wednesday. "Because there is no possibility of the inmate perceiving the effects of the remaining drugs, there are no constitutional implications, because there can be no pain."

Mr. Nunnelley adds, "However [the US Supreme Court] may ultimately decide [the Kentucky case], that decision will not benefit Schwab – whatever standard this court may decide to apply is satisfied by the Florida procedure."

Schwab's lawyers countered that an execution is final and cannot be reversed. "If a stay of execution is not granted, Schwab will suffer the most irreparable injury known to law," Schwab's lawyer Mark Gruber, writes in his brief to the court.

Mr. Gruber said the potential harm to the state is minimal. If the Supreme Court upholds the Kentucky protocol, Schwab's execution could go forward immediately. If the high court announces new protections, Florida would be in a position to ensure that its procedures were in compliance with those protections before moving forward with Schwab's death sentence, Gruber says in his brief.

Florida has had its own problems with lethal injection. In December 2006, the execution of Angel Diaz took 34 minutes, nearly three times longer than usual. It is unclear to what extent Mr. Diaz experienced pain during the process. Some witnesses say he appeared to be grimacing during much of the procedure.

An autopsy later revealed that both the primary and backup needles used to introduce the lethal drugs into his system had pushed through the target vein.

The Department of Corrections conducted an investigatio,n and a special commission was formed to identify procedural improvements. Specific changes have now been implemented and were upheld as constitutional in a 7-0 decision by the Florida Supreme Court on Nov. 1.

Critics say the process depends not only on the procedures but the competence of the execution team. They question the level of training and say that mistakes can still occur.

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