In a 5-2 decision, the Florida Supreme Court also denied Schwab's Motion to Stay Execution. This means Schwab's execution might take place next Thursday, November 15, 2007. The Florida Supreme Court denial of stay can be found here.
Chief Justice Lewis, and Justices Wells, Pariente, Cantero and Bell all voted to deny the stay. Pariente wrote a separate concurrence. In her concurrence, Justice Pariente urged Schwab to seek a stay with the United States Supreme Court. Justice Pariente stated it was up to the Supreme Court to determine whether Baze v. Rees, and the case's analysis of Kentucky's lethal injection protocol, was intended to impose a de facto death penalty moratorium, therefore justifying a stay in Schwab's case.
Justice Pariente did not stop there however. She also discussed what she would do if "in the executive branch and in charge of lethal injections for this state..." While she upheld Florida's Department of Corrections (DOC) lethal injection methodology (which a unanimous Florida Supreme Court upheld last Thursday in Lightbourne v. McCollum), she would urge the adoption of a one-drug protocol that would only use sodium pentothal to execute the condemned. Sodium pentothal is typically the first drug administered in the lethal injection protocol, and is used to induce unconsciousness. In addition, Justice Pariente stated she would explore the use of drugs that might impose less risk of pain than potassium chloride and pancuronium bromide, the final two drugs administered in a typical three-drug lethal execution. Furthermore, Justice Pariente would require the use of a Bispectral Index to monitor for consciousness.
While Justice Pariente is on the record stating her preference, she ultimately left the decision of what Florida and the rest of the country should require to the United States Supreme Court. Her concurrence stated the Supreme Court's decision in Baze should clarify the legal standard used to assess the method of execution, as well as indicate the extent to which the judiciary can scrutinize the method chosen by the DOC to carry out lethal injection executions.
The two dissenting justices, Justice Anstead and Justice Quince, would have stayed Schwab's execution until the U.S. Supreme Court issued its opinion in Baze. In his dissent, Anstead wrote that the circumstances of the case compelled the Florida court to stay Schwab's execution until the United States resolved the Eighth Amendment challenge to lethal injection protocols. Anstead found Florida's state constitutional mandate to apply United States Supreme Court decisions to the issues before it particularly persuasive. Anstead would have granted Schwab's stay because a decision regarding the standards for lethal injection protocol is pending before the United States Supreme Court in Baze. Anstead would have granted the stay even though Florida's new lethal injection protocol imposes far more safeguards than the protocol under review in Baze.
Anstead also stated that because the 2006 execution of Diaz went so poorly, there was no way for the Florida court to know what could happen in its next execution. Anstead would have given Schwab an evidentiary hearing, like the one Lightbourne was afforded, to determine whether the use of a three-drug protocol presented a greater risk of harm than a single lethal dose of sodium pentothal.
According to Anstead, there is no detriment to granting a stay under these circumstances, because the State will be free to execute Schwab in accordance with the standards set out in its Baze decision.
More information on Schwab's case can be found in Paul Flemming and John Torres' Tallahassee Democrat article. Lloyd Dunkelberger has an article in the Herald Tribune, and Sarah Lundy covered the decision for the Orlando Sentinel.