TALLAHASSEE (CBSMiami/NSF) – A new report issued by the Constitution Project on Wednesday recommends that states like Florida scrap the three-drug lethal injection cocktail that resulted in a botched execution in Oklahoma last week and switch to a single drug instead.
But Gov. Rick Scott’s administration says it is sticking by the current triple-drug formula despite the drawn-out death of Oklahoma Death Row inmate Clayton Lockett, who died of a heart attack 43 minutes after the execution began on April 29.
Last year, Florida began using midazolam hydrochloride as the first of the triple-drug lethal injection protocol, instead of the previously used pentobarbital sodium. The drug, the first of three injections, renders the inmate unconscious.
Florida and Oklahoma’s lethal injection protocols are almost identical, but the quantities of the drugs are different, with Florida using 500 milligrams of midazolam while Oklahoma’s protocol calls for 100 milligrams.
Switching from three drugs to one — which eight states currently use, according to the Death Penalty Information Center — is one of more than three dozen recommendations made by the Washington, D.C.-based Constitution Project. Former Florida Supreme Court Justice Gerald Kogan is co-chair of the committee that issued the death penalty report released Wednesday.
The committee also recommends that states require unanimous verdicts in the sentencing phase of death penalty cases. Florida is one of only three states that do not require unanimous decisions.
The 217-page “Irreversible Error” report, in the works long before Lockett’s execution last week, addresses myriad issues surrounding capital punishment and is aimed at ensuring the death penalty is applied equally and fairly, said committee member Mark Earley, a Republican and former Virginia attorney general.
“Without substantial revisions — not only to lethal injection, but across the board — the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional,” he said.
A uniform, single-drug protocol used by all states with the death penalty could help ensure that “whatever it is you’re injecting into the person who’s being executed doesn’t constitute cruel and unusual punishment,” said Kogan, who opposes the death penalty.
Following the Oklahoma execution, President Obama ordered U.S. Attorney General Eric Holder to review the death penalty, and several other states are re-examining their lethal injection protocols.
But Scott — who signed a death warrant three days after Lockett died — is not reconsidering Florida’s lethal injection process, Department of Corrections spokeswoman Jessica Cary said.
“Carrying out the sentence of a court in a capital case is the Florida Department of Corrections’ most solemn duty, and the Department remains committed to doing everything it can to ensure a humane and dignified lethal injection process,” Cary said.
Seventeen Death Row inmates have been executed under Scott’s orders, the most of any Florida governor in recent history.
Lockett’s botched execution is the latest of a string of troubling executions throughout the country.
In 2006, Florida Gov. Jeb Bush put a temporary hold on executions in the wake of the botched death by lethal injection of Angel Diaz, who took more than 30 minutes to die after being injected with the lethal cocktail then used by corrections officials.
In 2007, the U.S. Supreme Court ruled that the three-drug protocol comprised of sodium thiopental, pancuronium bromide, and potassium chloride does not violate the constitutional protection against cruel and unusual punishment. But since then, drug shortages have forced states to use different drugs.
Florida and other states are switching their lethal injection protocols because Denmark-based manufacturer Lundbeck, which makes pentobarbital sodium, decided to refuse to sell the drug directly to corrections agencies for use in executions and ordered its distributors to also stop supplying the drug for lethal-injection purposes.
A one-drug protocol “that achieves death by an overdose of a single anesthetic or barbiturate, as opposed to the three-drug method” would “decrease the problems associated with drug administration and eliminate the risks from using paralyzing or painful chemical agents,” the report reads.
Late last year, the Florida Supreme Court unanimously ruled that the current protocol using midazolam does not violate the constitutional ban on cruel and unusual punishment.
But the drug, as well as the lethal injection protocol, is the subject of a federal lawsuit where lawyers for five Death Row inmates are challenging, among other things, the secrecy involved in where the drugs are obtained and how they are administered.
“The botched execution in Oklahoma, a state which uses the same combination of drugs as Florida, demonstrates how important it is that the courts have the opportunity to review Department of Corrections’ procedures. The manner in which the state designs and seeks to execute a prisoner should not be shrouded in secrecy. We are hopeful that the Federal District Court in Jacksonville will allow our lawsuit to proceed so that Florida’s lethal injection procedures can be subjected to judicial review in an open and public forum,” said Maria DeLiberato, an attorney representing Death Row inmate Dane Abdool.
DeLiberato filed the lawsuit with the U.S. district court in Jacksonville.
Wednesday’s report coupled with the Oklahoma execution especially resonate for Florida death penalty opponents because of a new law passed last year aimed at speeding up executions. The Florida Supreme Court heard oral arguments in a challenge to the “Timely Justice Act” earlier this year, but has not yet rendered a decision.
Florida and other states began using lethal injection because it was considered more humane than the electric chair, said Stephen Harper, a Florida International University law professor who teaches a course on the death penalty, runs the school’s death-penalty clinic and has represented numerous clients charged with capital crimes.
“I think what happened in Oklahoma sort of brought home the fact that the anti-death penalty advocates who were perceived as trying to impede the execution of clients, that there’s some truth in what they were saying,” he said.
An overdose of a single, anesthetic drug would be the best way to put people to death, Harper agreed.
“They go to sleep and they don’t wake up. That would seem to be the most humane way to execute the person,” he said.
Florida should “pause and figure out how best to implement its death penalty,” Harper said. “Whether it will do that or not, I don’t know. But lawyers are going to continue to challenge it.”
The recommendation that capital punishment should not be imposed in the absence of a unanimous verdict is an even bigger issue for Florida, Harper and Kogan agreed.
It is “ridiculous” that Florida does not require unanimous decisions for death penalty sentences but does require unanimous decisions regarding the guilt phase, Kogan said.
“It’s ludicrous to say you need a unanimous verdict to find somebody guilty and then after you find them guilty you don’t need a unanimous verdict to sentence them to death. I think it defies logic,” he told The News Service of Florida on Wednesday.
The committee also recommended doing away with another Florida practice that gives judges the power to override jury decisions regarding death penalty verdicts.
This report is by Dara Kam with The News Service of Florida.
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