By: Cynthia Ventura, Articles Solicitation Editor, J.D. Candidate, May 2019, St. Thomas University School of Law.

Abstract

Capital punishment in the United States and its tolerability as a constitutional form of punishment has long been recognized and debated over since its inception.  In Florida, lethal injection has been the primary method of execution since the 1990s. In January 2017, the Florida Department of Corrections amended its protocol by replacing all three drugs previously used.  The first administered lethal dose is now etomidate, an anesthetic that has never been used in the United States as a lethal injection drug.  This Comment discusses the lack of empirical research available to support the state of Florida’s use of etomidate as an appropriate method of rendering a prisoner unconscious prior to administering the second and third injections.  This Comment provides a brief background of the history of the death penalty in the United States, its temporary abolition in Furman, and the administration of capital punishment post-Furman.  This Comment also examines Florida’s capital sentencing scheme and the procedures for administering lethal injection, along with the amended protocol implemented as of January 4, 2017.

Further, this Comment outlines the substantial risks associated with the use of etomidate as a lethal injection drug and its opening the door for prisoner claims of cruel and unusual punishment.  This Comment proposes a solution to the possibility of endless litigation concerning constitutional violations with use of etomidate by calling for the discontinuation of use of etomidate until further medical literature and research is available regarding the substantial risk of harm and pain.  Additionally, further research is necessary regarding the new, specific drugs which have replaced all three injections previously used in Florida, to determine their safety and efficacy when used in combination.  Recognizing that the death penalty is the most serious of punishments, Florida must take the most serious of precautions in ensuring that it imposes these sentences in the most humane and dignified way possible without unnecessary infliction of pain and suffering.