Florida Justices Halt Execution Until U.S. Supreme Court Rules on Lethal Injection

Saying it must “err on the side of extreme caution” or risk threatening the “viability of Florida’s entire death penalty scheme,” the Florida Supreme Court on Tuesday halted the Feb. 26 execution of a convicted killer until the U.S. Supreme Court rules on a lethal injection drug.

The U.S. Supreme Court has temporarily put on hold executions in Oklahoma while it considers whether a relatively new lethal-injection drug violates constitutional protections against cruel and unusual punishment.

Because Florida’s lethal injection protocol is virtually identical to Oklahoma’s, the execution next week of Jerry William Correll needs to be delayed until the U.S. Supreme Court makes a decision, Florida Chief Justice Jorge Labarga wrote for the majority in a 5-2 decision Tuesday.

“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,” Labarga wrote. “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.”

The decision overturned a circuit judge’s order last week denying Correll — convicted for the 1985 stabbing deaths of his ex-wife, daughter and two others in Orlando — a stay of execution pending the U.S. Supreme Court decision.

In the Oklahoma case, the high court is considering arguments about whether the disputed drug, midazolam hydrochloride, does not effectively sedate inmates during the execution process and subjects them to pain that violates the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment.

Florida and other states began using the sedative as the first step in a three-drug execution cocktail in 2013, after previously using a drug called pentobarbital sodium. The states switched because Danish-based manufacturer Lundbeck refused to sell pentobarbital sodium directly to corrections agencies for use in executions and ordered its distributors to also stop supplying the drug for lethal-injection purposes.

Correll filed an emergency petition with the Florida Supreme Court on Jan. 30, seeking a stay of his execution while the U.S Supreme Court considers the matter. The Florida court returned the case to Orange County Circuit Judge Jenifer Davis, who last week rejected Correll’s arguments. Gov. Rick Scott signed Correll’s death warrant earlier in January.

In ruling against Correll, Davis pointed to past Florida Supreme Court and federal-court decisions that upheld the use of midazolam hydrochloride.

But on Tuesday, Labarga wrote that, since the U.S. Supreme Court has put on hold executions in Oklahoma while considering the issue, Florida should do the same.

“‘Death is different,'” Labarga wrote, quoting from a previous U.S. Supreme Court decision.”When the execution of a death-sentenced individual is at issue, heightened care must be taken, and none more so than when, as here, the method of execution has a reasonable and realistic chance of being declared to be cruel and unusual punishment by the United States Supreme Court.”

But in a 10-page dissent, Justice Charles Canady argued that the Supreme Court temporarily halted Oklahoma executions because state officials there requested the stays. Canady also objected that, although the drug protocols are similar, a decision about the constitutionality of Oklahoma’s use of midazolam may not have any impact on Florida’s lethal injection process.

The Florida Supreme Court has repeatedly signed off on the use of the drug in previous cases, Canady, joined by Justice Ricky Polston, wrote.

“This court has reviewed an exhaustive amount of litigation in a number of cases regarding the efficacy of midazolam in Florida’s lethal injection protocol, and we have not had concerns about its ability to produce an execution that comports with the Eighth Amendment. Perhaps the Supreme Court is concerned with the ‘botched’ executions of Dennis McGuire in Ohio, Joseph Wood in Arizona, and Clayton Lockett in Oklahoma; but none of those executions used midazolam in the same manner or dosage as it is used in Florida’s protocol,” he wrote.

–Dara Kam, News Service of Florida