Florida's Death Penalty Protocol and What It Could Mean For Baze

Yesterday (Nov. 1, 2007) the Supreme Court of Florida upheld Florida's Lethal Injection Protocol. The decision, Lightbourne v. McCollum, can be found here.

Lightbourne reached the Florida Supreme Court when the Governor put a halt to all Florida executions in 2006, after an inmate's lethal injection execution took "34 minutes, which was substantially longer than in any previous lethal injection in Florida." The Governor then created the Governor's Commission on Administration of Lethal Injection which held hearings and made recommendations to the Florida Department of Corrections ("DOC").

The DOC revised its procedures in May 2007. When a trial court found these procedures inadequate, the DOC issued new procedures in August 2007. It is the August 2007 procedures that Lightborne challenged.
In its decision, the Florida Supreme Court addressed whether after the 2006 execution, and the response from the DOC, there were still issues as to whether Florida's lethal injection protocol was cruel and unusual punishment under the Eighth Amendment. The Florida Court reviewed the DOC's new procedures in accordance with the United States Constitution, and specifically examined whether the August 2007 protocol met Eighth Amendment standards of being "in accords with the dignity of man" and not "inhumane or... excessive."

This review meant the Florida Supreme Court had to establish a standard for gaging the type of risk that could be considered "inhumane" or "excessive" and thereby violate the Eighth Amendment. The standard for gaging risk is exactly what the petitioners in Baze v. Rees asked the U.S. Supreme Court to address. The Petitioner's Petition for Certiorari can be found here. Petitioner's in Baze want the Supreme Court to set a national standard as to the type of risk that will be considered a constitutional violation.

The opinion of the Supreme Court of Kentucky held the Eighth Amendment is violated when there is a "substantial risk of wanton and unnecessary infliction of pain." Missouri has a similar "substantial risk of wanton infliction of pain" standard. The Ninth Circuit stated in Morales v. Hickman, that protocol will violate the Eighth Amendment if it creates an undue and unnecessary risk that the inmate will suffer pain. Throughout their appeals, the Baze Petitioners have urged courts to adopt a legal standard that would prohibit any method of execution that posed an "unnecessary risk" of pain and suffering.

Even in light of Supreme Court review, the Florida Supreme Court still sought to review its own protocol and precedent to determine whether its own protocol met current constitutional standards. The Florida Supreme Court reasoned that in light of the new detailed protocol, and because Lightbourne had failed to establish concrete evidence that the inmate executed in 2006 had suffered pain, that a properly carried out lethal injection execution, with protocol safeguards, would not rise to the level of an Eighth Amendment violation.

The Florida court determined that Lightbourne had not demonstrated the new protocol created either an unnecessary nor foreseeable risk that Florida's DOC procedures for lethal injection would rise to the level of an Eighth Amendment violation. The court also refused to create a specific method or chemical combination for the DOC to follow in future executions. The court stated that unless Lightbourne could point to inherent deficiencies in the current procedure, the court would not intervene.

So what does yesterday's decision mean for Baze v. Rees? The Baze decision goes before the U.S. Supreme Court on slightly different footing than Lightbourne. First, at the time Baze and Bowling filed their petitions, Kentucky did not have a written lethal injection protocol. Kentucky had relied on other states when it adopted its protocol in 1998. Second, Kentucky did not suspend its executions, and review its procedures, because of an execution that went poorly. The only lethal injection execution that took place in Kentucky occurred in 1999, and no there has been no court finding the inmate suffered during that execution. Finally, Kentucky does not use Florida's method to check the condemned's level of consciousness after the first lethal injection drug has been administered.

When Baze and Bowling filed their actions, Kentucky did not use any physical test or machine to insure an inmate was unconscious before injecting the final two drugs. Kentucky's Trial Court findings on its lethal injection protocol can be found here.

However, Lightbourne, Baze and Bowling all contest the use of the same three drugs, and all assert that there is a risk that the protocol could cause suffering that would be considered cruel and unusual punishment. A ruling by the U.S. Supreme Court could answer both challenges by setting a legal standard - such as "substantial risk" and could ask states to adopt certain specific written protocol.

In the meantime, keep your eyes peeled for the Florida Supreme Court's decision in Lightbourne's companion case Schwab v. State, No. SC07-1603 (Fla. Nov. 1, 2007). Schwab's execution dated is set for November 15, 2007. The Florida Supreme Court has given parties until Monday, November 5, 2007 to file any motions for rehearing. The response motion is due by noon the next day. In light of the Lightbourne decision, a stay by the Florida Supreme Court seems unlikely.