When is a drug not safe to be used in executions? This is a question which has been posed in the Florida Death Penalty Abolition community following the Florida Supreme Court case of Manuel Valle.
Manuel Valle was convicted of killing a police officer in the Coral Gables area of Miami in 1978 and sentenced to death. On 30th June 2011, Florida Governor Rick Scott signed the death warrant for Manuel Valle, and an execution date of 2nd August 2011 was set. Valle issued a last ditch appeal, arguing about the effectiveness of the drug pentobarbital in rendering an inmate unconscious is uncertain (pentobarbital has recently replaced the use of sodium thiopental which is no longer in ready supply in the USA, as the anaesthetic element of the three drug cocktail used in executions). His execution was stayed whilst the courts heard argument on this point.
His appeal was first heard in front of the Miami Circuit Court, in which his lawyers argued that due to serious concerns regarding the efficacy of pentobarbital to render an inmate unconscious, the use of that drug constitutes cruel and unusual punishment in contravention of the Eighth Amendment. One of the main elements of the appeal was that witnesses to recent executions in Alabama and Georgia had observed that the drug did not seem to automatically render the inmate unconscious,and therefore they would have been subjected to pain when the muscle relaxant and heart stopping drugs were administered.
The Miami Circuit Court refused the appeal on the basis that Valle had not shown conclusively that the inmates were not anaethetised when the fatal drug was administered, merely that it was possible, and this was not suffient for the appeal to be allowed.
Valle appealed to the Florida Supreme Court, and the judges confirmed the Miami Circuit Judges decision stating "by asserting that no evidence exists concerning whether pentobarbital will render an inmate unconscious, Valle has failed to meet his burden of proof..... [Valle's] asserted lack of knowledge about pentobarbital's effects falls short of the heavy burden of affirmatively showing that the drug is sure or very likely to cause serious illness and needless suffering or that its use will result in a substantial risk of serious harm."
In other words, beacuse there is very little research about the effects of this new drug, and because it has not been positively shown that it did not kick in as an anaesthetic in the two previous executions, the drug can be used.
Death penalty abolitionists argue that if there is any doubt, then the State should err on the side of caution and not use the drug. However, it seems that in Florida, the fact that it might cause pain is not enough, infact the Supreme Court went further and said that if the pentobarbital did not immediately render unconscious but did so within a short amount of time then the inmate would only suffer pain for a short period and this would therefore not be cruel and unusual. Further the Supreme Court ignored the pleas of the drug manufacturer who asserted that the purpose of the develoment of the drug had been to save lives, not take them, and therefore it had never been tested for execution purposes, the execution was an 'off label' use of the drug.
So it seems that the answer to the question is, the drug is only unsafe to be used in executions when it is positively shown not to work, or highly likely not to work. Doubt as to its effectiveness is not enough to stop the State, which is one of the top five states for its death row population and execution rate, from executing Manuel Valle.
Manuel Valle is now due for execution on the 6th September 2011 in Florida State Prison at 6pm.
The Fla. Supreme Court decision can be found at http://www.floridasupremecourt.org/
Information in Florida's Death Row can be found at http://www.dc.state.fl.us/oth/deathrow/index.html
Want to know more about the work of Alison Gurden? www.alisongurden.com
