TALLAHASSEE Nov 25 A drug that Florida recently
started using to knock out condemned killers in executions does
not subject them to unconstitutionally cruel and unusual
punishment, a Florida judge ruled on Monday.
The challenge to use of midazolam hydrochloride, the first
of three drugs used in Florida executions, now goes back to the
state Supreme Court. In a sharply divided 5-2 ruling last week,
the high court directed Judge Phyllis Rosier of Florida's Eighth
Judicial Circuit to hold an evidentiary hearing on the
effectiveness of the drug.
An attorney for Askari Abdullah Muhammad, previously known
as Thomas Knight, won a stay of execution through at least Dec.
27 with the medical challenge. He had been scheduled to die on
"No credible evidence has been presented to this court that
shows midazolam as an anesthetic in the amount prescribed by
Florida's protocol is 'sure or very likely to cause serious
illness and needless suffering,' or give rise to 'sufficiently
imminent dangers,'" Rosier wrote, citing a standard set by U.S.
Supreme Court rulings.
Rosier said Dr. Mark Heath, a New York anesthesiologist
testifying for Muhammad last week, had said midazolam would
produce a deep state of unconsciousness at 10 or 15 milligrams.
The execution method uses 500 milligrams.
News reports said William Happ, the first man executed with
the new drug mix, showed some signs of movement and that it took
longer for him to die. Heath "speculated that it could mean that
Happ was not fully anesthetized when the second phase of the
protocol was administered," Rosier wrote in her order.
But Dr. Lee Evans, testifying for the state, said Happ's
movement did not prove that he felt anything. Rosier said Evans
testified that midazolam "is faster acting than pentobarbital in
Pentobarbital was the drug previously used to put condemned
prisoners to sleep. Its manufacturer has refused to supply it to
states using it in executions so Florida switched to midazolam -
executing two men with it so far. No other state has used the
The second and third drugs used in executions paralyze the
sleeping inmate and then stop the heart.
Based on testimony of doctors on both sides, Rosier ruled
that the drug "is a FDA-approved drug routinely used as a
pre-anesthetic sedative" which, in very high doses, could even
be used as the only drug in an execution.
"There is no dispute that the dosage amount used in
Florida's protocol is such that it would induce not only
unconsciousness when properly administered, but also respiratory
arrest and ultimately death," she wrote.
Muhammad was convicted of abducting, robbing and killing a
couple, Sydney and Lillian Gans, in 1974 in Miami. While on
death row, he killed prison guard Richard James Burke in 1980.
Governor Rick Scott recently signed his death warrant for
the correctional officer's murder.
(Editing by David Adams and Lisa Shumaker)