Thursday, July 7th was the final day that the Florida Supreme Court issued opinions before their summer break. The session ended without rulings on the constitutionality of the state’s death penalty until its next term begins in late August. This means there will be no executions in Florida for the next two months. You can read a news article that quotes attorney Martin McLain by using this link: Miami Herald July 7, 2016. We will keep you apprised of any updates as they develop.
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Ten Reasons to End the Death Penalty
Each week of the 2016 Legislative Session, members of TCADP distributed post cards that offered ten different reasons to end the death penalty. Each link below will take you to the weekly card and issue.
Week 1 – Innocence – #1 Frank Lee Smith
Week 2 – Victims – #2 New Victims
Week 3 – Model Code – #3 Model Code
Week 4 – Groveland Four – #4 Groveland Four
Week 5 – Mental Illness – #5 mental illness
Week 6 – Maze of Unfair Practices – #6 Maze of Unfair Practices
Week 7 – Deterrence – #7 Deterrence
Week 8 – Innocence – #8 Innocence
Week 9 – Collateral Damage – #9 Collateral Damage
Week 10 – Arbitrary – #10 Arbitrary
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Rick Scott set the record for more executions than any Florida governor in modern times.
Florida Governors and Executions
1979 – 1987
|16 total = 8 average per term|
1987 – 1990
|9 total = 9 average per term|
1991 – 1998
|18 total = 9 average per term|
1999 – 2006
|21 total = 10+ average per term|
2007 – 2010
|5 total = 5 average per term|
2011 – present
| 23 total = 20 average per term
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U.S. Supreme Court Approves Execution Drugs
WASHINGTON — The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.
Justice Samuel A. Alito Jr. wrote the majority opinion in the 5-to-4 decision. He was joined by the court’s four more conservative justices.
The drug, the sedative midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other, severely painful drugs.
Four condemned inmates in Oklahoma challenged the use of the drug, saying it did not reliably render the person unconscious and so violated the Eighth Amendment’s ban on cruel and unusual punishment. Lower courts disagreed.
Oklahoma and several other states started to use midazolam in executions after manufacturers in Europe and the United States refused to sell them the barbiturates that were traditionally used to produce unconsciousness.
Lawyers for the Oklahoma inmates, with the support of experts in pharmacology and anesthetics, said midazolam, even if properly administered, was unreliable. They pointed to three executions last year that seemed to go awry.
In April 2014, Clayton D. Lockett regained consciousness during the execution procedure, writhing and moaning after the intravenous line was improperly placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to gasp and choke for extended periods.
Justice Alito wrote that the inmates had failed to identify an available and preferable method of execution or made the case that the challenged drug entailed a substantial risk of severe pain.
In dissent, Justice Sonia Sotomayor, joined by the other three members of the court’s liberal wing, said “the court’s available-alternative requirement leads to patently absurd consequences.”
“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” she wrote. “But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”
Click here for: Highlights of the Supreme Court’s Decision
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New York Times
The use of a lethal-injection drug involved in prolonged, apparently agonizing executions last year will come under scrutiny in the Supreme Court on Wednesday as the justices hear a case brought by three condemned prisoners from Oklahoma.
The prisoners, convicted murderers, are challenging the use of the sedative midazolam as the first step in executions. Lawyers for the prisoners, with the support of many medical experts, say that even if properly administered, the drug cannot reliably cause deep unconsciousness before the injection of other extremely painful agents that cause death.
Oklahoma and several other states have turned to midazolam because manufacturers in Europe and the United States have refused to sell them the barbiturates traditionally used in executions. Officials from these states argue that when properly administered, midazolam does render prisoners insensate.
They also say that they have adopted new procedures to prevent mishaps like the gruesome execution in Oklahoma last April of Clayton D. Lockett, who moaned and writhed in a procedure involving midazolam that took 43 minutes after the intravenous line was improperly placed. The sedative was also used in executions in Arizona and Ohio in which prisoners gasped for prolonged periods — for nearly two hours in the Arizona case.
Credit Uncredited/Oklahoma Department of Corrections, via Associated Press .
The Supreme Court has not examined lethal injections since 2008, when it held that what was then the standard three-drug combination did not violate the Eighth Amendment’s ban on cruel and unusual punishment. But multiple opinions in that ruling revealed a splintered court and left uncertainty about crucial questions, said Deborah W. Denno, a law professor at Fordham University, including what standards states should apply as they adopted other drugs and combinations, and when the courts should grant stays of execution.
In one striking sign of continued divisions, the Supreme Court did not delay the Jan. 15 execution using midazolam of a fourth Oklahoma prisoner who was originally part of the current lawsuit, Glossip v. Gross, No. 14-7955. That would have taken five votes. Yet little more than a week later, it agreed to hear the appeal of the other three men scheduled for executions, which required just four votes.
Lawyers for the prisoners say that there is a “scientific consensus” that midazolam “cannot reliably produce deep, comalike unconsciousness,” and that its use risks inflicting “agonizing pain and suffering” on prisoners.
The scarcity of time-tested anesthetics has led to turmoil in capital punishment as states have tried new drugs and combinations, sought drugs from secret sources and passed laws to conceal the identity of drug suppliers.
Some states have also revived plans for use of the electric chair, firing squads or, in the case of Oklahoma, nitrogen gas. But lethal injection remains the preferred option.
In the 2008 case, Baze v. Rees, condemned prisoners in Kentucky argued that the state’s three-drug regime violated the constitutional ban on cruel and unusual punishment because it risked causing severe suffering.
The prisoners conceded that the execution would be constitutional if performed correctly, but said there was a significant risk that the barbiturate could be improperly administered, causing the prisoners to suffer agony that would then be masked by the paralytic.
The Supreme Court ruled that the chance of an injection mishap did not present a “substantial” or “objectively intolerable” risk. The legality of that three-drug regime, at least, was established.
But with the refusal of manufacturers to sell sodium thiopental as well as pentobarbital, another barbiturate that can reliably induce coma and death, these drugs have become scarce.
The 2008 case turned on the possible misadministration of drugs. In contrast, the new case argues that midazolam cannot reliably meet a constitutional standard even when it is properly used, said Megan McCracken, a legal expert with the Death Penalty Clinic at the University of California, Berkeley, School of Law.
“This is an opportunity for the court to prevent other states from adopting a drug that has been so problematic,” Ms. McCracken said.
But Florida officials, in a brief to the Supreme Court, said Florida’s experience with midazolam in 11 “uneventful executions” showed that it can work well. They said barring its use would “threaten the ability of Florida and other states to carry out the punishments their citizens have selected.”
Another question posed in Wednesday’s case is whether those challenging a lethal injection protocol must show that alternative drugs are available.
A brief filed by Alabama, joined by 12 other states, charges that the Oklahoma prisoners’ suit is part of a pattern of “thinly veiled attempts to prevent an offender’s execution by any method.” The solution, it says, is to require the plaintiffs “to present an acceptable, available alternative to the state’s protocol.”
Eric M. Freedman, a professor of law at Hofstra University, called this argument unfair.
“It is the government’s obligation to conduct an execution that is not cruel and unusual,” he said. “The government cannot shift that obligation to the prisoner.”
The Death Penalty: How Does it Impact the Family of the Victim?Monday, April 13 at 7 pm — Amtrak Community Center — 918 Railroad Avenue When Kathy Dillon was 14 years old, her father was shot and killed in the line of duty on the New York State Thruway. Emerson Dillon was a New York State Trooper who pulled over a car whose occupants had been involved in a robbery. The shooters got away, but were later caught and charged with murder. Ten years later her boyfriend, David Paul, was also shot and left to die on a roadside.
Kathy writes and speaks publicly from the perspective of having lost both her father and her boyfriend to murder. She has spoken at churches, panel discussions, conferences, and public forums of various kinds. Kathy belongs to Murder Victims’ Families for Reconciliation and Murder Victims’ Families for Human Rights. She is a former board member of Floridians for Alternatives to the Death Penalty.
“The death penalty was in place in New York State for first-degree murder of a police officer, but it didn’t protect my father that day. I don’t believe that it has a deterrent effect. And for me, it always comes down to my belief that humans shouldn’t have the power to decide who lives and who dies. I feel that it is wrong for one person to take the life of another, either in an attack of violence or in response to violence.”
A Stay of Execution for Jerry Correll
Governor Rick Scott’s scheduled 22nd execution will not take place this month. The execution of Jerry Correll scheduled for Thursday, February 26th has been stayed by the Florida Supreme Court in a 5 to 2 opinion today.
Justices Labarga, Pariente, Lewis, Quince and Perry concurred with an opinion written by Justice Labarga. Justice Canady dissented and Polston concurred with his dissent.
- The Court’s decision is based upon Florida’s use of the drug midazolam which is used in the lethal injection protocol.
- The use of midazolam in executions is being reviewed by the U. S. Supreme Court in response to an Oklahoma case, Glossip v. Gross.
- Oklahoma’s protocol and Florida’s protocol are nearly identical.
- Oral arguments in the U. S. Supreme Court case will be held during the last week of April and a decision is expected around the last week of June.
- This will likely mean there will be no executions in Florida until there is an outcome of the U.S. Supreme Court case.
Some important sections of today’s Florida Supreme Court opinion are cited below. (Emphasis added)
Because our jurisprudence is bound by the Eighth Amendment jurisprudence of the United States Supreme Court, if use of midazolam as the first drug in a three-drug lethal injection protocol is determined to be cruel and unusual—and therefore unconstitutional—then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continuing viability.
Without a stay of execution in this case, Florida risks the unconstitutional execution of Correll, for which there is no remedy. In contrast, a stay pending determination of the issue in the United States Supreme Court will not prejudice the State and, more importantly, will ensure that Florida does not risk an unconstitutional execution, a risk that would threaten the viability of Florida’s entire death penalty scheme. For all these reasons—the most significant being the pending Supreme Court review of a protocol for which review had been denied in the past—this Court must err on the side of extreme caution and grant a stay of execution for Correll.
You can read the 15 page order here: http://www.
We will update you as things develop.