JACKSONVILLE – Two federal judges threw out challenges from seven Florida death row inmates on Wednesday arguing that the state’s use of a new lethal injection drug constitutes cruel and unusual punishment, but said the decision was based on legal technicalities.
U.S. District Court Judges Marcia Morales Howard and Timothy J. Corrigan said that the lawsuits are “not trivial,” as a state assistant attorney general asserted, and gave the inmates and their lawyers 60 days to file new complaints. The state Attorney General’s Office will then have 30 days to respond.
The lawsuit stems from the state’s recent change of its execution protocol to include the sedative midazolam hydrochloride, instead of the previously used pentobarbital.
“Midazolam is not intended for use as an anesthetic,” the lawsuit said, adding that it is typically used to sedate patients before anesthesia is administered. “Its use in this context is wholly untested.”
The seven inmates are challenging the new procedure in U.S. District Courts in Jacksonville, Ocala, Tampa and Orlando. The inmates had earlier sued to stop the previous lethal injection drug mix and filed amended complaints to reflect the new procedures. They now will have to file more amended complaints.
The ruling will not affect the scheduled execution of Darious Kimbrough next week because he is not one of the inmates appealing the new protocol, said attorney Maria DeLiberato, one of the attorneys representing the seven inmates. Kimbrough broke into the Orlando apartment of 28-year-old Denise Collins as she slept in October 1991. He sexually assaulted Collins and then beat her to death.
The judges questioned the evidence from the inmates’ attorneys and state lawyers. Neither side submitted medical expert statements.
“If it’s so great, why weren’t they using it before?” Corrigan asked Assistant Attorney General Scott Brown Thursday, referring to midazolam. Brown responded that enough is administered to render the inmate unconscious.
Corrigan said he was not questioning whether the use of the new drug is proper, but he wanted more evidence from medical experts.