[JURIST] Florida’s highest court on Thursday ordered [Orlando Sentinel report] an evidentiary hearing to determine if the sedative midazolam should remain in the state’s lethal injection procedure. The case of Paul Augustus Howell reached the state high court after a successful appeal to the US Court of Appeals for the Eleventh Circuit [official website] in 2013. The court of Appeals lifted the stay on Howell’s execution in November, and he was scheduled for execution on February 26 before Thursday’s court order. The evidentiary hearing, scheduled for a date no later than February 12, will evaluate if the use of midazolam as the first drug in the state’s three-drug cocktail violates the Eighth Amendment of the US Constitution [LII backgrounder], prohibiting cruel and unusual punishment. Additionally, the court ordered the Florida Department of Corrections [official website] to obtain information from the drug’s manufacturer regarding the history of midazolam in executions. Florida is the only state to use midazolam [Death Penalty Information Center report] in a three-drug protocol. Ohio and Louisiana currently employ the drug in their two-drug lethal injection procedure.

In the US there is a shortage of commonly used lethal injection drugs, forcing a number of states to modify their execution drug protocols which has resulted in a lawsuits challenging the use of untested drug combinations. Last week, a federal judge in Louisiana scheduled [JURIST report] a trial to review the constitutionality of the state’s new execution protocol, which delayed the prisoner’s execution for 90 days. In January the US Supreme Court stayed [JURIST report] the execution of a Missouri death row inmate because the state refused to release the name of the pharmaceutical to be used in the execution, but the stay was later lifted and the execution carried out. This same two-drug mixture at question in Louisiana was used last month in the execution of an Ohio convict, which reportedly caused him to suffer visible pain and his children have filed a suit in federal court over the prolonged execution [JURIST reports].