December 4, 2006
It would be impossible to understand the horror of executing Angel Nieves Diaz this holiday season without a good close look at what is going on with the Florida Death Penalty these days. There are so many unanswered questions.
Why are so many inmates are being executed in Florida this holiday season?
The death penalty was reinstated nationwide with the ruling of a United States Supreme Court case Gregg v Georgia, 428 US 153 (1976). Executions in Florida were reinstated in 1979. Since then there have been 63 killings carried out over the years. Deaths in the recent past were few and usually only with “volunteers” who wanted to commit suicide by State. Last year, in 2005, there was only one execution, of inmate Glen Ocha who was considered a “volunteer.” He claimed he wanted to die. In 2004, there was also only one execution of “volunteer” John Blackwelder. Some think he was wrongfully executed, as a man sitting on death row still claims he is the real murderer.
Why are government-sanctioned killings now being carried out in Florida at breakneck speeds, against the advice of our nation’s highest court, the United States Supreme Court who believes there is are serious issues with lethal injection in Florida?
Three executions have occurred since September using secret protocols, devised by the Florida Department of Corrections, that questionably violate the Administrative Procedure Act. Why are medical doctors in attendance at these executions wearing black hoods? Isn’t this a violation of the American Medical Association’s ethics and of the Hippocratic oath, “to do no harm,” that these doctors swore to uphold when they got licensed to practice medicine? Why did Gov. Bush thumb his nose up at the United States Supreme Court? Why did Gov. Bush and the Florida Courts allow the execution of Clarence Hill take place when the issues of lethal injection had not been heard in a court of law? Why did Mr. Hill’s execution go forward the very day after the American Bar Association released a 450 page report called for a moratorium on Florida’s death penalty due to a substantial number of critical flaws?
The recent spate of questionable executions were carried out just in time for Election Day 2006. Jeb Bush thereby gave a big edge to his favored successor, then Attorney General Charles Crist, who grandstanded constantly as being “tough on crime.”
The Recent Lethal Injection Issue
However, the lethal injection studies came out and subsequently became noticed by the Appellate Courts.
The story begins in January 2006 with inmate Clarence Hill, the first man with a 2006 execution date certain, laid strapped to a gurney waiting to be executed. Mr. Hill did not want to die. He was convicted for the 1982 murder of a Pensacola police officer in a savings and loan robbery. Mr. Hill’s attorney, T. Todd Doss, was, seeking a last minute stay of execution, and raised a claim showing that recent studies proved that Florida’s lethal injection procedures were cruel and unusual punishment in violation of the Constitution’s Eighth and Fourteenth Amendments. Mr. Hill claimed that execution by lethal injection by the Florida Department of Corrections (FDOC) (three injections, including an anesthetic (sodium thiopental), a paralytic agent (pancuronium bromide), and potassium chloride to stop the heart) would cause him a lengthy and painful death because defense attorneys said it, “creates a foreseeable risk of the gratuitous and unnecessary infliction of pain on a person being executed.” Mr. Hill did not contest the legality of capital punishment, the facts of his own case, nor did he assert that lethal injection per se was unconstitutional. He only claimed the way it was carried out would be cruel. Mr. Hill cited a new study co-authored by David A. Lubarsky and Dr. Leonidas Koniaris that was published in a recent article in The Lancet, “Inadequate Anaesthesia in Lethal Injection for Execution,”, Vol. 365, The Lancet 1412-14 (April 16, 2005). In this study it was found that without proper administration of the anesthesia one experiences asphyxiation, a severe burning sensation, massive muscle cramping and finally cardiac arrest in full awareness and yet is paralyzed and unable to express pain.
So literally at the final hour, the United States Supreme Court granted a stay of execution. Mr. Hill won the right to have the courts review the question of whether or not federal civil rights law (42 USC Sec. 1983 Civil Rights) could be used to challenge the state’s execution methods. In June this year, the USSC ruled again and allowed the claim to go forward in the federal courts, and sent it to the United States District Court – Northern District in Tallahassee Division, in Florida.
A right to file a civil rights claim cleared a path for death row inmates nationwide to file lawsuits that would otherwise have been prohibited by tight restrictions on habeas corpus since the federal statute, Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), was enacted. Not in Florida it turned out.
The Supreme Court ruling caused several other Governors to halt executions in their home states or Courts to issue orders addressing serious Eighth Amendment questions raised by lethal injection. This includes South Dakota, Missouri, Arkansas, Ohio and California, and even federal cases. Oklahoma and North Carolina responded by changing their protocols. However, Texas and Virginia, who carry out the most executions per year, did not.
On June 13, 2006, in the Pensacola News Journal article, “Court OK’s injections appeal,” Carolyn Snurkowski, Assistant Deputy Attorney General seemed uncannily to foreshadow what the Courts’ rulings would be. Ms. Snurkowski said, “Mr. Hill certainly has the wherewithal to go back (to federal court) and ask that his claim be entertained. How far he gets with that remains to be seen. They could say he’s too late.” How could she know?
Arthur Rutherford, a Viet Nam veteran and carpenter was convicted of killing Stella Salamon on August 22, 1985 by strangling and then drowning her in the bathtub of her Santa Rosa County home. In addition to the lethal injection issue, Mr. Rutherford’s attorney Martin McClain raised an innocence claim. A woman living with Mr. Rutherford at the time of the homicide, Mary Heaton, had recently confessed to the killing. The Associated Press reported on January 26, 2006 that one dissenting jurist, Justice Harry Lee Anstead said, “How can we make these evaluations without an evidentiary hearing?” Mr. Rutherford won a stay, however, on the lethal injection issue.
In an article September 19, 2006, the Associated Press reported that Richard C. Dieter, Executive Director of the Death Penalty Information Center, said “Nationally there is an inconsistency in the review of lethal injection challenges. If the Florida case was that serious for the Supreme Court, I would think that at a minimum in Florida they would hold an evidentiary hearing to hear from both sides about whether there are particular problems.”
However, Gov. Jeb Bush defied the United States Supreme Court rulings, killed Mr. Hill and Mr. Rutherford, which mooted the lethal injection issue. No claimants no case.
Just in time for Election Day so his chosen successor Attorney General Charles Crist, could be elected Governor of Florida.
This scheme began on August 17, 2006 when Attorney General” Christ, wrote an Advisory Opinion to Florida Governor Jeb Bush determining that it is “legally sufficient to support the issue of a warrant” for the execution of Clarence Hill. That very same day Gov. Jeb Bush wrote a letter to Randall Bryant, the Warden of Florida State Prison, the prison that holds Florida’s executions. In his letter Gov. Bush set Mr. Hill’s execution for September 20, 2006.
Both Gov. Bush and Attorney General Christ acknowledged in their letters of August 17, 2006 that the lethal injection claim was still viable in the higher courts, but they both noted the same loophole. There was no existing stay of execution in place at that time. The reason for this is that the 25- day period for rehearing of that matter lapsed before the Eleventh Circuit Court of Appeals had called the case to calendar. It was August, and Courts are rarely in session at that time because lawyers, witnesses and jurists are on vacation. But on that technicality Mr. Hill’s stay got taken away from him.
In spite of the impending death date, his attorneys forged ahead and filed a claim before the federal US District Court in Tallahassee. In it Mr. Hill stated that Florida lethal injection procedures are “substantially similar” to those used by the states found overly painful in The Lancet study. Mr. Hill claimed Florida has no standardized procedures to administer the chemicals, insufficient guidelines for the unqualified personnel and no plan for medical assistance if needed.
The federal Court, in its Order of September 1, 2006 written by Stephan P. Mickle, United States District Judge, denied Mr. Hill’s claim, stating that a civil rights claim is an equitable remedy and not a matter of right and because Mr. Hill raised the claim too late. As to the first reason, the Court said that since there was a stay in place, it “must be sensitive to the State’s strong interest in enforcing its criminal judgments without due influence by federal courts.” Judge Mickle also stated that though the Lancet study is relatively new, Mr. Hill’s attorneys should have raised this issue sooner because Florida’s lethal injection methods were subject to a full evidentiary hearing in 2000 in Sims v. State, 754 So. 2d 657 (Fla. 2000). “Hill has offered no reason for his delay,” the Court stated. The defense argument that the Lancet study was new because it was scientific proof not conjecture, and that federal law recently held hearings questioning lethal injection protocols fell on a deaf Court. Nevertheless, the District Court denied Mr. Hill’s claim on September 11, 2006 because “it appears that Hill is engaging in dilatory tactics to delay a death sentence.”
Mr. Hill then asked the United States Court of Appeals for the Eleventh Circuit In Atlanta to delay the execution and expedite his appeal. On September 15, 2006, the Court (Circuit Judges Tjoflat, Hull and Pryor) denied his claim stating, “With Hill’s execution schedule to be carried out within a matter of days from (your) receipt of the instant motion, we decline to engage in that protracted, and untimely futile, sequence of events. “ This Court again accused Hill of waiting until the final hour to raise the lethal injection claim calling his case “dilatory.”
The conundrum is how was Mr. Hill able to file a claim when his seasoned Florida attorneys knew no court in Florida would consider anything credible except hard scientific evidence, which was not published until The Lancet study came out in April 2005?
In the meanwhile, several organizations pleaded with Jeb Bush to halt the execution until the lethal injection issue was resolved in Florida. Human Rights Watch U.S. Director Jamie Fellner, in a letter to Gov. Bush dated September 18, 2006, stated that U.S. veterinarian guidelines prohibit the use of potassium chloride when euthanizing a domestic animal unless they are sure the animals are deeply anesthetized and that Florida Department of Corrections does not have protocols to safeguard such danger. The Human Rights Watch Director also wrote specifically about a botched Florida execution that occurred on June 8, 2000 when it took execution technicians 33 minutes to find suitable veins to inject inmate Bennie Demps, whose last words were an expression of agony.
On September 18, 2006, Mr. Bush told the Associated Press that the delays in Mr. Hill’s case had made “a mockery” of the judicial system.
Mr. Hill was killed on September 20, 2006. In Pensacola News Journal article September 21, 2006, reporter Paul Flemming wrote “a blue-cloaked and hooded medical staffer came in at 5:11 p.m. to check Hill’s vitals, followed by a similarly clothed doctor to check Hill with a stethoscope. After two nods to Bryant (Randall Bryant the warden of Florida State Prison), the warden declared Hill dead (See Pensacola News Journal, 9/21/06, “Hill Executed. Death Brings Little Relief to Victim’s Family,” by Paul Flemming.)
This eye-witness report makes it seem like a lynching. In reality, doctors wearing hoods just obviates an unsolvable problem with the death penalty. In order to carry out a painless killing, a medical doctor should be present; but according to our medical standards, it is unethical for a doctor to participate in the unnatural homicide of a healthy person.
The American Medical Association Finds that it is Unethical for Doctors to
Participate in Executions
It is a violation of the American Medical Association’s ethics and of the Hippocratic oath, “to do no harm,” that these doctors swore to uphold when they got licensed to practice medicine to participate in an execution in any way, from preparations to checking for vital signs of the deceased before the jailer pronounces death. So says the Council on Judicial Affairs “Physician Participation in Capital Punishment,” Journal of the American Medical Association, 1993, p. 270, 365-368.
Both the American Medical Association and the American Society of Anesthesiologists refuse to participate in executions on ethical principles. In July 2006, William G. Plested, President of the AMA, stated, "The American Medical Association is troubled by continuous refusal of many state courts and legislatures to acknowledge the ethical obligations of physicians, which strictly prohibit physician involvement in a legally authorized execution. The AMA's policy is clear and unambiguous — requiring physicians to participate in executions violates their oath to protect lives and erodes public confidence in the medical profession.”
"A physician is a member of a profession dedicated to preserving life
when there is hope of doing so. The use of a physician's clinical skill and judgment for purposes other than promoting an individual's health and welfare undermines a basic ethical foundation of medicine — first, do no harm.”
"The guidelines in the AMA Code of Medical explicitly prohibits
selecting injection sites for executions by lethal injection, starting intravenous lines, prescribing, administering, or supervising the use of lethal drugs, monitoring vital signs, on site or remotely, and declaring death.”
One of the recent studies on lethal injection revealed disturbing facts. "As it's practiced now, lethal injection is cruel and could even be called torture in some cases," said Dr. Leonidas Koniaris, a cancer specialist at the University of Miami and lead author of a study published by the prominent British medical journal Lancet. Without anesthesia, a condemned person would experience "asphyxiation, a severe burning sensation, massive muscle cramping, and finally cardiac arrest" because of the other drugs commonly used in executions, the Lancet paper said.
The more important point, co-author Dr. David Lubarsky, chairman of the department of surgery at the University of Miami, suggests, is that execution chambers have no systems to monitor how drugs are administered and whether they are effective. In a hospital, machines track a patient's vital signs and brain activity, indicating when an anesthetic is taking effect. In the prisons, "you can't tell if they're botching it. They do nothing," The study suggests that the current practice of lethal injection for execution fails even to meet veterinary standards for putting down animals.
Yet, anesthesiologists are opposed to lethal injection as well and pointed out very serious problems with laypeople attempting to competently carry out an execution. Dr. Orin Guidry, President of the American Society of Anesthesiologists, said, “Each of us, as anesthesiologists, would say that five grams of thiopental (the usual dose administered during lethal injection) should be sufficient to anesthetize anyone. Why are these executions “botched”? The inmates may not be getting this dose intravenously. IV access is often difficult. The persons preparing and administering the drugs usually are not observing the inmate. The process is divided into a number of steps done by different individuals to minimize the onus on any one person. The nature of the inmate or the situation may require a larger dose. Many of the personnel involved lack formal training or clinical experience in providing sedation or anesthesia care to patients.”
The ASA has adopted the AMA ethical code that physicians cannot participate in executions. Dr. Guidry asks, “Are anesthesiologists stopping capital punishment and making public policy? Not in my opinion. Lethal injection was not anesthesiology’s idea. American society decided to have capital punishment as part of our legal system.”
Does Florida have doctors who exempt themselves from this oath of office and pay them to oversee executions? We may never know because the FDOC and Governor Bush's office can easily put a hood over the truth of what goes on during executions. They are not videotaped, although they should be.
American Bar Association Report Says Florida’s Death Penalty System is Flawed
On September 17, 2006 the American Bar Association released a 403 page report highlighting so many critical flaws in Florida’s Death Penalty system that it called for a moratorium until the problems could be addressed. The ABA panel was comprised of both prosecutors and defense attorneys. The 8-member committee included retired Florida Supreme Court Justice Leander J. Shaw Jr. and Florida State University professor Mark Schlackman, Esq., the Director of Center for the Advancement of Human Rights.
American Bar Association reported that Florida leads the nation in death row exonerations; 22 since 1973, and complies with only 8 of the 93 ABA legal standards. The report called for qualified lawyers for capital-case defendants; a ban on executions of the mentally disabled; the creation of uniform statewide standards to decide who is charged with a capital crime; and a commission to study Florida’s wrongful convictions to prevent the execution of the innocent.
Gov. Bush used to have similar sentiments. According to the Miami Herald, when the U.S. Supreme Court acknowledged the lethal injection issue of Clarence Hill’s claim, he ordered a review of Florida’s death penalty system. By the time the ABA report came out, closer to Election Day, Bush refused to comment on the ABA findings. However, he did call for a speedier execution system, which the ABA did not recommend. Gov. Bush said, “I believe the death-penalty process here is protected, correctly so, by an appeals process that is extensive. It can go on for more than 10 years. For a lot of people that’s a denial of justice.” So, in addition to ignoring the United States Supreme Court, he also overlooked hard facts published by the American Bar Association.
And last year Bush ignored the Florida Supreme Court. In October of 2005, Florida Supreme Court Justice Raoul Cantero, a Jeb Bush appointee, wrote an opinion in the case of Alfredie Steele Jr., who was charged with killing a Pasco County sheriff, that questioned the propriety of Florida’s majority vote system for juries in death sentencing cases. The one difference between Florida and every other state is that Florida allows the death penalty to be imposed by a majority vote instead by unanimous vote. “The requirement of a unanimous verdict can only assist the capital sentencing jury in reaching such a reasoned decision,” Cantero wrote in his decision.
When the findings of the ABA report were raised by Mr. Hill and Mr. Rutherford, the Florida courts denied relief stating it did not contain any “new information.”
One wonders if the Florida Court read what was in the ABA report.
The next day Florida killed Clarence Hill.
And less than a month later, Florida killed Arthur Rutherford.
On September 22, 2006, Gov. Jeb Bush sent a second letter to Warden Bryant, this time setting a date with death for Arthur Rutherford - October 18, 2006. To make this happen, Gov. Bush used the same loophole as he did in setting an execution date for Clarence Hill.
On June 19, 2006 when the United States Supreme Court remanded the case back to the Eleventh Circuit Court, the stay of execution for Arthur Rutherford had been lifted. The time between the lifted stay and the Court actually hearing Mr. Rutherford’s claim was the governor’s window of opportunity to arrange for another pre-Election execution in Florida.
Arthur Rutherford was killed shortly after Mr. Hill, on October 18th. At this time, the specifics of the lethal injection protocols, which had been prevented from being heard by the courts, were also kept hidden from the press and Mr. Rutherford’s attorneys. Though it had also happened to Clarence Hill, with Arthur Rutherford’s execution, defense attorneys made an issue of it.
The Florida Department of Corrections act of withholding the lethal injection protocols was an insurmountable obstacle faced by Mr. Hill’s attorney and prevented Mr. Rutherford from being able to litigate them specificity. Again, the Courts enabled this to happen. Now it was even closer to Election Day 2006, only eighteen days remained until voters went to the polls.
In addition to filing the lethal injection claim, Mr. Rutherford also took issue with Florida’s clemency process (or lack thereof); and the flaws raised by the American Bar Association report that directly applied to him.
As with the reasoning for Mr. Hill, the Eleventh Circuit Judge Carnes dismissed Mr. Rutherford’s claim as “dilatory,” noting that he “deliberately waited until the last few days before his execution to file what he could have filed many months, if not years, earlier.” This judge also noted the States’ important interest in executions, the flaws of lethal injection had been known as far back as 2000, and this claim was made too late.
Circuit Court Judge Wilson dissented. “Because the factual basis for Rutherford’s claim only recently came to light and because the legal basis for his claim was not in place until six days before his scheduled execution, he did not unnecessarily delay in bringing his Sec. 1983 action.” Referring to the lower court’s similar ruling, Justice Wilson commented, “There was no semblance of a proper discussion or balancing of the equities.”
The hottest issue in Arthur Rutherford’s rush to get a stay of execution was the secrecy of the lethal injection protocols.
Human Rights Watch in its April 2006 report stated that, in addition to eye-witness observation, execution records, such as execution logs, autopsies, and toxicology reports area necessary to conduct accurate post-mortem reviews of how the execution proceeded, including whether the prisoner reached an appropriate level of anesthesia. But corrections agencies have refused to create or keep such records and agencies have refused to make them publicly available when they have been created or kept.
In Mr. Rutherford’s case, neither the Florida Department of Corrections nor the Governor's Office revealed the protocols to the defense attorney in time, making a specific legal challenge impossible before Mr. Rutherford’s execution date expired.
But when lawyers and news reporters questioned the FDOC about the lethal injection protocols they planned to use on Mr. Rutherford, the FDOC assured them that they improved the protocols.
The following story was reported on October 18, 2006 in the Tallahassee Democrat and the St. Petersburg Times:
The day before Mr. Rutherford’s execution, which was October 17, 2006, the FDOC released a new nine-page document explaining the execution procedures “in great detail.” It was back-dated August 16th.
On the basis of this never-before-seen document, that very day the Florida Supreme Court ruled, “the current lethal injection procedures reveal nothing that would cause this Court to revisit our previous conclusions that procedures for administering the lethal injection do not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.” Justice Harry Lee Anstead in a special concurring note said a hearing on the issue was needed. “I am troubled, however, by the fact that the State has not at all times made its execution procedures and protocols a matter of public record.”
Just hours before Mr. Rutherford’s execution, his attorney Martin McClain’s law partner, Linda McDermott, Esq. petitioned the Court to hear objections to what she clamed were changes to Florida’s execution protocols just made the day before. Ms. McDermott expressed outrage by the fact that the FDOC released a newly created nine-page document, kept hidden from Mr. Rutherford’s defense as he was fighting for his life. Gov. Bush said, “Mr. Rutherford’s attorney does not have the right to get them, by law. When someone else asked for them, we gave them up.”
The Florida Department of Corrections officials had a technicality up their sleeve by saying that they complied with state law that restricts when death row inmates can make public records requests.
Lawyers for both Mr. Rutherford and Mr. Hill simply told reporters that the document represented a “fraud on the court” because it was not revealed to them earlier. Mr. McClain told the Associated Press, “This is litigation by sandbag. They’re saying we’ve got a secret and we don’t have to tell you. It’s the most outrageous thing I can possibly imagine. If I, as a defense attorney, did something like this, they’d have my bar card.” Mr. McClain also pointed out it had substantial differences in the amounts of chemicals than reportedly used in prior execution and said it was false to pretend it had not been changed behind the public’s back.
Such information could have saved Clarence Hill’s life. The day Mr. Hill was executed, the United States Supreme Court ruled 5 to 4 against granting him a stay so he could hold hearings on the lethal injection issue. “We got four votes, said his attorney Mr. Doss,” We get one more vote and Clarence Hill is alive today. To misrepresent the facts and not present the facts is not to do justice.”
And with that, Mr. Rutherford was also killed.
Florida Today reported that Kent Scheidegger, legal director for the California based Criminal Justice Legal Foundation said that Mr. Hill and Mr. Rutherford’s cases have worked to reduce future litigation delays, the opposite of what death penalty opponents hoped for in January when the U.S. Supreme Court agreed to hear Hill’s case. These cases can be used to deny other last minute lethal injection claims elsewhere, he said.
The third execution in Florida’s pageantry of pre-election killings was that of serial killer Danny Rolling, on October 25, 2006. This piece de la resistance was presented just 12 days before Election Day. Gainesville bars had parties; there were tailgate parties in the prison parking lot. Even the prosecution took advantage of the slam dunk scapegoat and took a verbal swat at Mr. Rolling like he was a piñata at a party. Florida Assistant State Attorney Bill Cervone, who sat in the third row of the execution chamber, told Lise Fisher of the Gainesville Sun that the penalty should have been harsher. “My bottom feeling is that the punishment doesn’t fit the crime. “ If this is the caliber of State representative meting justice in Florida it is no wonder the death penalty flourishes. What did Mr. Cervone want; Danny Rolling’s head on a spit and paraded in the streets of Gainesville? Justice is supposed to be blind. That means, take the emotionalism out of the situation and then stand in the place of the victims and society and dispense justice in accordance with our Constitution. Did Mr. Cervone come to class on that day of law school? Why did his boss allow him to say such a thing to the press? Chief Assistant State Attorney Jeanne Singer described it to reporters as if she were watching a performance: Theater of perverted spectators, maybe? As if being mentally ill and tortured by his father his entire childhood were not enough, but then Mr. Rolling acted out in that state and was convicted and sentenced to jail for crimes he pleaded guilty to. Mr. Rolling, still very mentally ill and completely untreated, now having to live with the utter horror of his bad actions, was put in a jail cell no bigger than a tiny closet for more than a decade. He was not allowed to marry his fiancée. He did not have enough blankets in the winter; suffered blistering heat in the summer; was given food so bad that even recently more than 50 death row inmates got severe food poisoning; allowed only two hours of exercise a week (put on the yard with violent paranoid schizophrenics who also are untreated and threatening other inmates); and got only two ten minute showers while wearing shackles. All this, with the knowledge that he would be killed, and then he was executed in front of a sea of spectators cheering against him. This “fry the bastard” mentality gets votes. Good ole Charlie Crist got elected and his name is on every appeal that sends people to their death. Even the appeals that get struck down that are made by innocent people. People who did not commit the crimes, or those with trials that were so utterly unjust they are, in fact, legally innocent.
Mr. Rolling made several claims in his last minute appeals which questioned the lethal injection and the results of the ABA report. He also contested the fact that the FDOC kept vital information about executions from him, which derailed any chance he had of contesting the cruel methods Florida may use in his execution. We are all supposed to go on faith that they are kosher, after what we already know happened during Florida executions?
Why are Departments of Corrections, including Florida’s, exempt from promulgating Rules and Regulations for its lethal injection protocols? Human Rights Watch stated in a report on lethal injection released April 2006 that they were aware of only one state, New Jersey (since the beginning of 2006 is under a death penalty moratorium), which had ever opened its lethal injection protocol to public input and comment. Human Rights claimed that in 36 other states, corrections officials said that “reasons of security” prevent them from making the entire protocol available to the public.
Florida’s Department of Corrections has not promulgated an administrative regulation nor published any guidance prescribing the lethal injection procedures it uses to execute condemned prisoners. The Florida Supreme Court in Sims v State (754 So. 2d 657, 670 (Fla. 2000) agreed with the corrections department that a published protocol is not needed because the department has the authority to change its rules any time for any reason.
What does a corrections agency know about a medical procedure? Human Rights Watch report stated that State legislators and corrections officials did not develop their lethal injection procedures with the advice and guidance of medical experts or through a process of reasoned scientific inquiry. Most states copied the procedures of Texas or Oklahoma, whose protocols were informally or hurriedly made by non-experts who did not consult with persons who were qualified.
A looming question is why were these protocols were allowed to be kept secret all these years? Does Florida’s lethal injection statute, Fla. Stat. Sec. 922.105 (2005), violate the Florida Constitution and the Eighth and Fourteenth Amendments to the United States Constitution? By granting the Department of Corrections unfettered discretion to create a lethal injection protocol Florida may be in violation of the federal Administrative Procedure Act as well as the Florida Administrative Code.
Agencies, such as the Department of Corrections, are necessary because they allow a state to regulate specialized institutions of society. In order to get federal funding a state must comply with Federal mandates and adopt Administrative Procedure Act. The “APA” is a universal set of laws that regulate all government funded agencies. One of the most important parts of the APA is how it provides “checks and balances” to control the power agency administrators have over American citizenry. The APA provides for this by creating standardized rules and regulations particular to each agency. These rules and regulations must be "promulgated." This is a process of expert and public scrutiny as to the rule/regulation’s impact on constitutionality, cost, safety, feasibility and appropriateness. Most important is that public hearings must be held before any rule or regulation gets adopted. If not it is a violation by the agency. Ramifications of breaking the law include punitive fines, criminal charges and an agency’s loss of Federal or State funding.
In the spring of 1996, Florida Legislature adopted a revised Administrative Procedure Act (APA), ch. 96-159, 11996 Fla. Laws 147 (codified in scattered sections of Fla. State. Ch. 120 (Supp. 1996). According to an article published by Florida State College of Law’s Assistant Professor Jim Rossi and Professor of Administrative Law Patricia A. Dore in “The 1996 Revised Florida Administrative Procedure Act: A Survey of Major Provisions Affecting Florida Agencies,” (Florida State University Law Review, Vo. 24: 283-307 (1997), updates in the statute were designed to make rulemaking more accountable.” (see p. 283). How did the Legislator miss making formal rules about something as important as ending a person’s life?
Moreover, with such a vital liberty interest – the manner in which a person’s life is ended prematurely by the State, the protocols used during execution, must be scientifically based, reviewed by the appropriate experts and presented to interested person in public hearings. If not, as proved in several recent cases in Florida (despite the FDOC purposefully hiding the information with the Court’s and Governor’s imprimatur), people get hurt.
States that do not abolish capital punishment must still abide by human rights standards in their choice of execution methods because the United States is a party to the International Covenant on Civil and Political rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. According to Human Rights Watch, The Human Rights Committee (HRC), the body of experts that monitors state compliance with the ICCPR, has stated that when the death penalty is applied, it must be carried out in such a way as to cause the least possible physical and mental suffering.
It may be politically difficult for state lawmakers to take up this cause because being ''tough on crime'' is often a winner at the polls. But if Florida is going to execute those who commit heinous crimes, it should do all that it can to make sure the judicial system is fair and unfailingly accurate.
Sidebar: The History of Lethal Injection in Florida
On July 2, 1976, the Supreme Court ruled in Gregg v. Georgia that “The punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments. The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. The Georgia statutory system under which petitioner was sentenced to death is constitutional. The new procedures, on their face, satisfy the concerns of Furman, since, before the death penalty can be imposed, there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate.”
Originally the method of execution in Florida was electrocution. Fla. Stat. Sec. 922.105 (1999) “[a] death sentence shall be executed by electrocution.” It was soon discovered that inmates suffered terribly painful deaths from use of the electric chair. The Death Penalty Information Center keeps records of “botched executions”. Jesse Tafero was certainly one of Florida’s electrocution disasters on May 4, 1990. “During the execution, six-inch flames erupted from Tafero's head, and three jolts of power were required to stop his breathing. State officials claimed that the botched execution was caused by "inadvertent human error" -- the inappropriate substitution of a synthetic sponge for a natural sponge that had been used in previous executions. They attempted to support this theory by sticking a part of a synthetic sponge into a "common household toaster" and observing that it smoldered and caught fire.”
Yet, seven years later, the state had not learned how to prevent setting inmates on fire as it found during Pedro Medina’s electrocution on March 25, 1997. “A crown of foot-high flames shot from the headpiece during the execution, filling the execution chamber with a stench of thick smoke and gagging the two dozen official witnesses. An official then threw a switch to manually cut off the power and prematurely end the two-minute cycle of 2,000 volts. Medina's chest continued to heave until the flames stopped and death came. After the execution, prison officials blamed the fire on a corroded copper screen in the headpiece of the electric chair, but two experts hired by the governor later concluded that the fire was caused by the improper application of a sponge (designed to conduct electricity) to Medina's head.”
However, the electrocution of Allen Lee Davis on July 8, 1999 dramatically changed Florida’s compunction to use the electric chair. “Before he was pronounced dead ... the blood from his mouth had poured onto the collar of his white shirt, and the blood on his chest had spread to about the size of a dinner plate, even oozing through the buckle holes on the leather chest strap holding him to the chair." His execution was the first in Florida's new electric chair, built especially so it could accommodate a man Davis's size (approximately 350 pounds).”
The challenge by another Florida death row inmate to the constitutionality of the electric chair prompted a change in execution methods. Florida Supreme Court Justice Leander Shaw commented that "the color photos of Davis depict a man who -- for all appearances -- was brutally tortured to death by the citizens of Florida.” Justice Shaw also described the botched executions of Jesse Tafero and Pedro Medina (q.v.), calling the three executions "barbaric spectacles" and "acts more befitting a violent murderer than a civilized state." Justice Shaw included pictures of Davis's dead body in his opinion. The execution was witnessed by a Florida State Senator, Ginny Brown-Waite, who at first was "shocked" to see the blood, until she realized that the blood was forming the shape of a cross and that it was a message from God saying he supported the execution.”
Soon Constitutional claims of a violation the Eighth Amendment Right to be Free of Cruel and Unusual Punishment abounded and to circumvent the prospect of losing their death penalty completely, Florida Legislation enacted a law to allow the inmate a choice of electrocution or lethal injection on January 14, 2000. (See also, Bryan v Moore, 528 US 960 (1999), cert. dismissed, 528 US 1133 (20000) (dismissing the writ after Florida amended its procedures to provide for lethal injection as the presumptive method of execution); Provenzano v Moore, 744 So.2d 413, 431-36(Fla. 1999)(Shaw, J. dissenting)(describing executions), cert. denied, 528 US 1128 (2000). See also Fla. State. Sec. 922.10 (“A death sentence shall be executed by electrocution or lethal injection.”)
Eleven months after the Davis debacle, Bennie Demps the third Florida inmate to choose lethal injection. Execution technicians spent thirty-three minutes trying to find veins for the IVs. From the DPIC files are Demps’ words, "They butchered me back there," said Demps in his final statement. "I was in a lot of pain. They cut me in the groin; they cut me in the leg. I was bleeding profusely. This is not an execution, it is murder."
It was at this time Florida Legislature gave the Florida Department of Corrections the responsibility of determining how to carry out lethal injections. This grant of power has gone unnoticed until the aforementioned studies surfaced that inmates experienced great pain from the unscientific inconsistent ways they were given lethal cocktail.
Key Issues of the ABA Report (http://www.abanet.org)
Florida Leads the Nation in Death-Row Exonerations: Combined, these death-row exonerees served approximately 150 years in prison before being released.
Inadequate Compensation for Conflict Trial Counsel in Death Penalty Cases: The statutory fee cap [..] and the failure to regularly provide for partial payments have the potential to dissuade the most experienced and qualified attorneys from taking capital cases and may preclude those attorneys who do take these cases from having the funds necessary to present a vigorous defense.
Lack of Qualified and Properly Monitored Capital Collateral Registry Counsel: Registry attorneys need only minimal trial and appellate experience to qualify for appointment and are not adequately monitored.
Inadequate Compensation for Capital Collateral Registry Attorneys: In at least some instances, registry attorneys handling capital collateral cases are not fully compensated at a rate that is commensurate with the provision of high quality legal representation.
Significant Capital Juror Confusion: Death sentences resulting from juror confusion or mistake are not tolerable, but research establishes that many Florida capital jurors do not understand their role and responsibilities when deciding whether to impose a death sentence.
Lack of Unanimity in Jury’s Sentencing Decision in Capital Cases: The Florida Supreme Court recently noted that “Florida is now the only state in the country that allows a jury to find that aggravators exist and to recommend a sentence of death by a mere majority vote.” Additionally, a recent study found that Florida’s practice of permitting capital sentencing recommendations by a majority vote reduces the jury’s deliberation time and thus may diminish the thoroughness of the deliberations.
The Practice of Judicial Override: Between 1972 and 1999, 166 of the 857 first-time death sentences imposed (or 19.4 percent) involved a judicial override of a jury’s recommendation of life imprisonment or life imprisonment without the possibility of parole. [..] Florida law still authorizes the practice.
Lack of Transparency in the Clemency Process: Full and proper use of the clemency process is essential to guaranteeing fairness in the administration of the death penalty. Given the ambiguities and confidentiality surrounding Florida’s clemency decision-making process and the fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida’s clemency process is adequate.
Racial Disparities in Florida’s Capital Sentencing: [A] criminal defendant in a capital case is, other things being equal, 3.4 times more likely to receive the death penalty if the victim is white than if the victim is African-American.
Geographic Disparities in Florida’s Capital Sentencing: The cause of these geographic disparities is unclear, but one possible variable is the charging decision. Research in other states indicates that charging practices vary from prosecutor to prosecutor and few of the prosecutor offices in Florida that we contacted have written polices governing the charging decision. Research also suggests that some capital charging decisions in Florida are influenced by racial factors.
Death Sentences Imposed on People with Severe Mental Disability: The State of Florida has a significant number of people with severe mental disabilities on death row, some of whom were disabled at the time of the offense and others of whom became seriously ill after conviction and sentence.
In assessing Florida's system, the team measured state law, procedure and practices against protocols developed by the ABA to evaluate death-penalty jurisprudence. It found "the state did not comply with 23 protocols, partially complied with 36, and fully complied with only eight." The team was unable to assess compliance with 25 protocols because the records do not exist or were not easily obtainable.
Florida is not alone among Southern states with broken death penalty systems. The ABA's study of the death penalty in Alabama and Georgia reveals similar problems.
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