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U.S. Supreme Court upholds lethal injection

TALLAHASSEE — Florida is poised to begin executions for the first time in 16 months after the U.S. Supreme Court on Wednesday upheld the lethal injection method the state uses to kill the condemned.

By a 7-2 vote, the court denied a constitutional challenge to the execution procedures used in Kentucky. That method — three drugs to sedate, paralyze and kill inmates — is used in Florida and about three dozen other states.

But Wednesday's ruling will likely not end legal challenges to lethal injection in Florida, legal experts said.

Seven justices approved, but only two signed on with Chief Justice John Robert's opinion. Four offered other rationale.

"The issue of how you humanely put someone to death with the three-drug cocktail still has not been resolved," said Charles Rose, a professor at the Stetson University College of Law. "It leaves open the ultimate issue. I think the governor is on solid ground to proceed with executions if he so desires, but once he does we'll have the next challenge."

Lethal injection has been under siege recently because of botched executions — including one in Florida — in which inmates took a long time to die or indicated they may have felt pain.

Whether an inmate feels unnecessary pain is important because that might violate the Eighth Amendment's prohibition of cruel and unusual punishment.

In his decision, Roberts said lethal injection is constitutional if there is not a substantial chance of a prisoner feeling pain.

"Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain," Roberts wrote.

After accepting the Kentucky case, the high court in November stayed the execution of Florida inmate Mark Dean Schwab, convicted of the 1991 kidnapping, rape and murder of 11-year-old Junny Rios-Martinez of Cocoa.

Crist likely to sign

Crist signed no other death warrants while the Kentucky case was pending, but said Wednesday he likely will begin signing death warrants again — though not necessarily Schwab's.

"That case is still pending before the Supreme Court,'' Crist said. "But I've already asked our staff in the general counsel's office to look at other cases that might now be ripe for the signing of a subsequent death certificate.''

"Justice is waiting,'' Crist said.

Executions nationwide were on hold for about seven months while the justices decided the Kentucky case. But Florida hasn't executed anyone since Angel Diaz on Dec. 13, 2006.

Diaz bucked and grimaced during his execution, which took more than twice as long as usual. An investigation determined corrections employees pierced needles through his veins, causing the chemicals to spray into his flesh — prolonging his death and perhaps causing great pain.

Then-Gov. Jeb Bush placed all executions on hold and convened a commission to study procedures. The commission recommended changes, most of which were implemented.

Florida has a checkered death penalty history. In the 29 years since the state's first modern execution, 64 inmates — an average of about two a year — have been put to death.

Today, 388 people sit on Florida's death row. At the current rate, nearly all of them will die in prison of old age.

Nationwide, 42 people were executed last year among more than 3,300 people on death row.

In the Kentucky case, two death row inmates did not ask to be spared. They wanted the court to order a switch to a single barbiturate that causes no pain and can be given in a large enough dose to cause death.

With the three-drug procedure, if the anesthetic does not work, the other two drugs can cause excruciating pain, critics say. One of those, a paralytic, would render the prisoner unable to express discomfort.

Roberts said the one-drug method, frequently used in animal euthanasia, "has problems of its own, and has never been tried by a single state."

Kentucky has had only one execution by lethal injection, and it did not present any obvious problems.

Roberts said "a condemned prisoner cannot successfully challenge a state's method of execution merely by showing a slightly or marginally safer alternative."

'Execution gone wrong'

But death penalty experts say the Diaz execution puts Florida in a different situation.

"I think Florida can be distinguished from Kentucky primarily because Florida has the best example of an execution gone wrong," said Suzanne Keffer, an attorney with the state's publicly funded office for death penalty appeals who has challenged lethal injection.

Justices Ruth Bader Ginsburg and David Souter dissented. Ginsburg wrote that her colleagues should have asked Kentucky courts to consider whether the state includes adequate safeguards to ensure a prisoner is unconscious and thus unlikely to suffer severe pain.

Justices Anthony Kennedy and Samuel Alito joined with Roberts.

Justice Clarence Thomas' opinion, which was joined by Justice Antonin Scalia, called it an "easy case" because the only execution methods that could be unconstitutional are those designed to inflict pain or suffering.

Justice John Paul Stevens, while agreeing with the outcome because he didn't think the Kentucky inmates proved their case, said the court's decision would not end the debate over lethal injection.

Stevens was one of seven justices to uphold capital punishment in 1976, leading to the modern death penalty. Now about to turn 88, he questions capital punishment.

Capital defense lawyer D. Todd Doss, who took a Florida lethal injection case to the U.S. Supreme Court in 2006, said he wasn't surprised by the array of opinions from the justices.

"Lethal injection has produced a number of opinions in society and the legal community itself, so I don't find it surprising that it splintered the court," Doss said. "I think we all kind of hoped we would get a definitive ruling from the court. Each side wanted it in their favor. It didn't happen."

Times staff writer Steve Bousquet contributed to this report, which includes information from the Associated Press. Chris Tisch can be reached at (727) 892-2359 or tisch@sptimes.com.

388 Florida inmates now on death row

0 Florida executions in 2007 and 2008

$51-million Annual cost of Florida's death penalty, according to 2000 newspaper analysis.

$24-million Cost per execution

Dec. 12, 2006

Last Florida execution: Angel Diaz

U.S. Supreme Court upholds lethal injection 04/16/08 [Last modified: Thursday, April 17, 2008 5:36pm]

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