A split Florida Supreme Court has postponed the execution of convicted cop killer Manuel Valle and ordered a hearing on a new drug to be used as part of the lethal injection “cocktail.”
In a 4-3 ruling, the court ordered a Miami judge to hold a hearing on the Department of Correction’s new lethal injection protocol and put off Valle’s execution from Aug. 2 to Sept. 1.
Gov. Rick Scott signed the death warrant for Valle, convicted of killing Coral Gables police officer Luis Pena in 1978, on June 30. It is the first and only execution Scott has ordered since taking office in January.
Department of Corrections officials in June replaced the anesthetic sodium thiopental, the first of the three drugs used in lethal injections, with pentobarbital sodium. Sodium thiopental’s manufacturer stopped making the drug early this year, leaving corrections officials in death penalty states like Florida scrambling to find a substitute.
But Lundbeck Inc., the Danish manufacturer of pentobarbital, recently announced that the drug is untested and unsafe for use in lethal injections. Lundbeck stopped selling the drug to distributors who intended to resell it for use in executions.
Pentobarbital has never been FDA-approved as an anesthetic and Valle’s lawyers raised questions about how much of the drug needs to be given to prevent the pain caused by the injection of potassium chloride. The drug has been used in at least 15 executions in other states.
“The Court has determined that Valle’s claim as to the use of pentobarbital as an anesthetic in the amount prescribed by Florida’s protocol warrants an evidentiary hearing,” the majority said in the order.
Last month, the execution of Roy Willard Blankenship in Georgia, using the same drug, went awry. Blankenship jerked his head several times, mumbled inaudibly and appeared to gasp for breath for several minutes after he was pumped with pentobarbital. Medical experts are split about what whether Blankenship’s movements were a sign that his execution was bungled.
But in the minority dissent, Justice Charles Canady wrote that Valle failed to demonstrate that the new drug will meet the U.S. Supreme Court’s threshold of “cruel and unusual punishment.”
Valle “has made no attempt to allege that any risk of severe pain created by the revised protocol ‘is substantial when compared to the known and available alternatives,'” Canady wrote, referring to the earlier U.S. Supreme Court opinion on when such claims can be made.
“Based on speculation and conjecture, Valle claims the right to judicial micromanagement of the execution process,” Canady wrote. “He has no such right.” Canady also wrote that Valle’s claim ignores the lethal injection protocol’s requirement that an inmate be unconscious before the second and third drugs can be administered.
The court ordered a hearing on the issue be held by a Miami judge by Aug. 5 and set aside Aug. 24 for oral arguments if necessary.
A spokesman for Gov. Scott said that the governor doesn’t have any involvement in the case at this stage, and didn’t have a comment on the Department of Corrections’ policy for executions. The spokesman, Lane Wright, said that if the stay is lifted, the execution will proceed, either on Aug. 2 or “within the appropriate timetable.”
Wright didn’t address what the governor would do if the court finds the protocol illegal.
The News Service of Florida and The Associated Press contributed to this story.