Plea to delay Florida execution

November 9th, 2007 4:09 pm

Lyle Denniston

Attorneys for Mark Dean Schwab, a Florida death row inmate due to be executed at 6 p.m. next Thursday, asked the Supreme Court on Friday to impose a delay until it can act on a coming appeal to challenge Florida’s use of lethal injection for executions (Schwab v. Florida, application 07A383; the papers can be found here.)

The coming petition, the application said, will raise the same issues that the Court has agreed to consider this Term in a Kentucky case, Baze v. Rees (07-5439) — a claim that the Eighth Amendment’s ban on cruel and unusual punishment is violated by the current three-chemical protocol used in lethal injections. In addition, the application noted, those are the issues the Court had before it in three other cases in which it postponed executions since agreeing to hear the Baze case in late September.

Moreover, the application said that the state of Florida “uses the same three drug regimen” as is used in Kentucky and in all states but one that carry out executions by the use of lethal drugs.
Florida’s Supreme Court, in a unanimous ruling on Nov. 1, upheld the constitutionality of that protocol as implemented in Florida, finding that sufficient safeguards had been put in place since an execution in December 2006 — of inmate Angel Diaz — in which the procedure took 34 minutes to complete the execution. The day after that execution, other death row inmates filed a challenge to the use of the method.

When the state court refused on Wednesday to delay Schwab’s execution date, one of the judges joining in that denial said that Schwab’s proper next step should be to seek a stay from the Supreme Court. “It should be that Court’s decision to determine whether it intends a de facto moratorium on the death penalty and whether the issues it is presently reviewing regarding lethal injection justify a stay of Schwab’s execution,” Justice Barbara J. Pariente wrote.

Schwab’s application was filed with Justice Clarence Thomas, who is the Circuit Justice for the area that includes Florida. He has the authority to act alone on the stay request, or to refer it to his colleagues. Other stay applications in lethal injection cases have been referred to and acted upon by the full Court.