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Florida's New Lethal Injection Protocol

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Yesterday, as noted in today's News Scan, the Florida Supreme Court granted a stay of execution in one of the oldest capital cases, that of Thomas Knight, a.k.a. Askari Abdullah Muhammad.  The order is here.  Two justices dissent.

Knight/Muhammad challenges Florida's new injection protocol, which substitutes midazolam hydrochloride for the first drug of the three-drug protocol that was standard until the last few years.  The protocol includes a check for consciousness after the first drug, the safeguard that Justice Ginsburg found critically missing from the Kentucky protocol upheld by a majority in Baze v. Rees.

The usual constitutional test in prison medical cases is "substantial risk of serious harm."  As the Baze plurality indicated, in the lethal injection context that translates to a substantial risk of severe pain during the execution.  The Florida Supreme Court majority concludes that Muhammad "has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida's lethal injection protocol will subject him" to such a risk.  So they send the matter to the trial court for an evidentiary hearing, followed by a rapid briefing schedule, and oral argument, if necessary, on December 18.  The stay expires in a little over a month, December 27.

On the merits, the dissent is probably right.  As a practical matter, I think the court's action is for the best.  The stay is brief.  With an evidentiary hearing, findings of fact, and a state court opinion on the merits, the resulting judgment should be close to bulletproof when (not if) the attack is made in federal court.  When these steps are missing or inadequate, the federal courts are more likely to step in, and the overall delay is likely to be longer.

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