Florida Supreme Court approves death drug

The following article was published in the Palm Beach Post on August 23, 2011:

Florida Supremes approve death drug

By Dara Kam

Florida’s new lethal injection drug poses no substantial risk of undue pain, the Florida Supreme Court ruled Tuesday, lifting a stay of execution for convicted cop-killer Manuel Valle.

The court unanimously ruled that the use of pentobarbital in capital punishment cases, as part of the three-drug injection “cocktail,” does not inflict undue pain. The state’s lethal injection procedure requires a dosage of the drug – also used in animal euthanasia and assisted suicide – 10 times that used for sedation.

A divided state Supreme Court last month ordered a Miami judge to hold a hearing on the new drug, an anesthetic that Department of Corrections officials chose in June to replace sodium thiopental. Sodium thiopental’s manufacturer stopped making the drug early this year, leaving corrections officials in Florida and other death penalty states scrambling to find a substitute.

The Florida Supreme Court agreed Tuesday with Miami-Dade Circuit Judge Jacqueline Hogan’s ruling earlier this month, that the drug does not raise a substantial risk of harm. Three federal courts have also signed off on the drug.

Lawyers for Valle, who has spent 33 years on Death Row, argued that using pentobarbital, also known as Nembutal, as an anesthetic may not render him unconscious, thus subjecting him to undue pain induced by the following drugs used in the procedure.

But in Tuesday’s 44-page opinion, which also clears the way for future executions using pentobarbital, the court said there is no credible evidence that administering the drug in the method proscribed would not render Valle unconscious.

Even Valle’s medical expert could not testify that such a massive dose would not knock Valle out.

“By asserting that no evidence exists concerning whether pentobarbital will render an inmate unconscious, Valle has failed to meet his burden of proof,” the court’s unsigned opinion said. The court also rejected arguments that the Danish manufacturer of the drug, Lundbeck Inc., has asked that it not be used for lethal injections.

Lundbeck twice pleaded with Gov. Rick Scott not to use the drug, saying it “contradicts everything we are in business to do.” But the court found that Lundbeck’s opposition and argument that there’s not enough known about the drug’s safety for use in lethal injections “do nothing to establish a substantial risk of serious harm.”

Valle, 61, was sentenced to death for the 1978 murder of a Coral Gables police officer, Louis Pena, after Pena pulled him over on a routine traffic stop. Valle was convicted of the crime soon after but has avoided execution after numerous appeals, reversals and re-hearings that eventually reached the U.S. Supreme Court, which overturned his death penalty conviction. In all, courts have re-sentenced Valle to death three times.

Lawyers for Valle are still pursuing a challenge against lethal injection in federal court and other appeals, including with the U.S. Supreme Court.

Scott signed a death warrant for Valle — his only one since taking office in January — late in May. A spokesman for Scott said no new execution date has been set for Valle, who had been scheduled to be put to death on Aug. 2, before the Supreme Court issued a stay pending a decision on the new drug protocol.

Following Tuesday’s ruling, Florida Catholic Bishops renewed their plea that Scott spare Valle’s life, asking the governor to allow Valle to remain behind bars for the rest of his life.

“Killing someone because they killed diminishes respect for life and promotes a culture of violence and vengeance. We affirm the right and duty of the State to assure public safety and punish the guilty by incarceration, which allows the inmate an opportunity for reflection on their offenses and sorrow for the pain they have caused others,” the bishops wrote to Scott.

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