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Attorney General tells Florida Supreme Court executions need not be painless

By Bill Cotterell
Florida Capital Bureau Political Editor

TALLAHASSEE -- Attorney General Bill McCollum told the Florida Supreme Court today that executions don't have to be totally painless.

"Avoidance of the possibility of any pain is neither possible nor required under the Constitution," said the state's brief in an appeal by convicted child killer Mark Dean Schwab, who is set to die next Tuesday. "If unconscious, as Schwab assumes he will be, there can be no risk of pain, let alone a 'substantial risk'...."

Attorneys for Schwab argued that Florida's newly revised lethal-injection methods don't comply with U.S. Supreme Court rulings on cruel and unusual punishment. They asked the high court to return Schwab's case to a Brevard County court for a full evidentiary hearing on his claims that there are better ways to do it.

The state Supreme Court is going through the last legal maneuvers involving the legality of the new lethal-injection methods in preparation for Florida's first execution since the December, 2006, death of Angel Diaz -- which took far longer than planned, because a needle missed its mark. The Department of Corrections has extensively revised the methods and trained execution teams since then.

The state's reply brief said Schwab, convicted in 1992, has had ample time to raise all possible objections -- and that he had, in fact, already litigated some of the claims his attorneys are raising now. It also said that "the mere possibility of a malfunction" in the lethal-injunction equipment or dosages of three chemicals did not rise to the level of a constitutional claim.

In appealing to the Supreme Court, Schwab's attorneys said the circuit court in Brevard denied Schwab's claims in a hearing this week. His three-lawyer defense team from the state's Capital Collateral Regional Counsel asked the seven justices to order a full evidentiary hearing.

Schwab was sentenced to death July 1, 1992, for the abducting, sexually assaulting and killing Junny Rios-Martinez, 11, of Cocoa.

Scwhab's execution would be Florida's first since December 2006 when a botched lethal injection led to a state-imposed moratorium, since lifted. Schwab's November execution was delayed by a U.S. Supreme Court review of lethal injection in a Kentucky case.