[JURIST] The Florida Supreme Court [official website] issued a 5-2 order [PDF text] Wednesday denying a stay of execution for death row inmate Mark Dean Schwab [FCCD profile, DOC]. The court ruled last week that the state could proceed with Schwab's execution after finding that Florida's revised lethal injection protocol does not constitute cruel and unusual punishment [JURIST report]. The US Supreme Court currently has on its docket a case challenging lethal injection as unconstitutional, and earlier last week the Court granted a stay of execution [order, PDF; JURIST report] to a convicted murderer on Mississippi's death row. Some analysts have suggested that the Mississippi stay, which marked the third reprieve granted by the Court since September 25, signals a de facto nationwide moratorium [CSM news report] on lethal injections until the Supreme Court reaches a decision in the lethal injection case – Baze v. Rees.

Justice Barbara J. Pariente [official profile] wrote in a concurring opinion that:

Schwab should seek a stay from the United States Supreme Court and it should be that Court's decision to determine whether it intends a de facto moratorium on the death penalty and whether the issues it is presently reviewing regarding lethal injection justify a stay of Schwab's execution.

Writing in dissent, Justice Harry Lee Anstead [official profile] said that:

The circumstances of this case, and especially the United States Supreme Court's pending review of the constitutional issues involved, present this Court with a compelling case for ordering that the execution of the appellant be stayed pending the Supreme Court's resolution of the constitutionality of the use of lethal injection as it is administered in Florida and other states. While the pendency of a case directly on point in the Supreme Court alone constitutes a compelling reason for the entry of a stay, this factor is especially compelling in Florida because our state constitution mandates that this Court must apply the United States Supreme Court's decision on the issue before us. The majority is clearly ignoring that mandate in refusing to grant a stay here.

Schwab is scheduled to be executed on November 15th.

Several constitutional challenges to lethal injection [JURIST news archive] have arisen across the country in recent months, mainly focusing on an argument that the first drug administered in a commonly used three-drug mixture [DPIC backgrounder] fails to make the inmate fully unconscious, thereby making the inmate feel excruciating pain when a heart-stopping drug is injected. AP has more. The Tallahassee Democrat has local coverage.