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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Florida fights to keep lethal drug records secret

Midazolam
Arizona lawyers seek records of Florida's triple-drug lethal injection protocol

Lawyers representing seven Arizona death row inmates want information about the drugs used in Florida's lethal-injection procedure, but corrections officials are asking a judge to keep the documents secret.

The Arizona lawyers last month filed a subpoena seeking years of records related to Florida's triple-drug lethal injection protocol, including the types of drugs purchased, the strengths and amounts of the drugs, the expiration dates of the drugs and the names of suppliers. The lawyers are seeking similar information from other states.

The subpoena, filed in federal court in Arizona, is part of a drawn-out challenge to that state's lethal-injection process. Arizona's death penalty has been on hold for 2 years following the botched execution of inmate Joseph Wood in 2014, who died nearly 2 hours after the lethal-injection procedure was started.

On Monday, the Florida Department of Corrections asked a federal judge in Tallahassee to quash the subpoena, saying that state information regarding death penalty drugs is exempt from public disclosure.

The state agency "is unclear how Florida's lethal injection drugs have anything to do with this case out of Arizona, in which plaintiffs are, in part, challenging Arizona's use of midazolam for its lethal injections. FDC does not have any involvement in Arizona's lethal injection procedures or Arizona's procurement of drugs for its lethal injections," Florida Chief Assistant Attorney General James Lee Marsh wrote in the 15-page motion.

Midazolam, 1 of the drugs used in Wood's execution, is the 1st of the 3-drug lethal cocktail used in Florida.

Florida corrections officials and the state "have very strong public policy interests in preventing its confidential execution information from being publicly disclosed," Marsh wrote.

"The United States Supreme Court has recognized that there is a guerilla war currently occurring against the death penalty in the United States. Anti-death penalty groups have been on a crusade against those legally involved with executions, harassing and threatening them until they feel pressured to withdraw their participation. ... In Florida, the plight has not been any different," he also wrote.

Arizona corrections officials told U.S. District Judge Neil Wake they are discontinuing the use of midazolam because their supply of the drug expired and they can no longer obtain the sedative.

Pfizer, which manufactures midazolam, in March announced that it would not distribute the drugs for use in capital punishment. In May, a spokesman for the Florida Department of Corrections said the manufacturer's decision would have no impact on Florida.

A bitterly divided U.S. Supreme Court last year signed off on the use of midazolam for executions, ruling that lawyers for Oklahoma prisoners failed to prove that the use of the drug "entails a substantial risk of severe pain." The Oklahoma prisoners had argued that the drug does not effectively sedate inmates during the execution process.

Florida and other states began using midazolam as the 1st step in a 3-drug execution cocktail in 2013, after previously using a drug called pentobarbital sodium. The states switched because Danish-based manufacturer Lundbeck refused to sell pentobarbital sodium directly to corrections agencies for use in executions and ordered its distributors to also stop supplying the drug for lethal-injection purposes.

Florida's death penalty, meanwhile, has been under scrutiny following a U.S. Supreme Court decision earlier this year that found the state's death penalty sentencing system gave too much power to judges, and not juries.

The Florida Supreme Court has been grappling with the aftermath of that decision, in a case known as Hurst v. Florida, as well as a law hurriedly passed this spring to deal with the Hurst ruling. The court indefinitely postponed 2 executions following the January 12 Hurst ruling.

Source: news4jax.com, July 13, 2016

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