Lethal injection, the preferred method of execution in the U.S., came under fire in two states Friday, with a federal judge in California saying the capital punishment method is unconstitutional and Florida officials pledging to re-examine the system there following a botched execution earlier this week.
In Florida, Gov. Jeb Bush suspended all executions in the state after a medical examiner said that prison officials improperly inserted needles in the arm of Angel Nieves Diaz on Wednesday. Because of the error, it took 34 minutes — twice as long as usual — and required a rare second dose of lethal chemicals to kill the convicted murderer, the examiner said.
In the California case, a federal judge imposed a moratorium on executions and declared that the state’s method of lethal injection violates the constitutional ban on cruel and unusual punishment.
U.S. District Judge Jeremy Fogel ruled in San Jose that California’s “implementation of lethal injection is broken.” But he said: “It can be fixed.”
Lethal injection is the preferred execution method in 37 states, and is often cast by supporters as the most humane method of capital punishment. But courts are increasingly challenging that assumption. Last month, a federal judge declared unconstitutional Missouri’s injection method, which is similar to California’s.
The controversy appeared sure to build in the wake of Diaz’s execution.
Needles reportedly improperly inserted
Florida’s medical examiner, Dr. William Hamilton, said Friday that the lengthy procedure was necessary because the needles that deliver the deadly drugs were pushed through his veins and into the flesh in his arms. The chemicals are supposed to go into the veins.
Hamilton, who performed the autopsy, refused to say whether he thought Diaz died a painful death.
“I am going to defer answers about pain and suffering until the autopsy is complete,” he said. He said the results were preliminary and other tests may take several weeks.
Bush created a commission to examine the state’s lethal injection process in light of Diaz’s case, and he signed an executive order halting the signing of any more death warrants until the panel completes its final report by March 1.
The order did not have any immediate effect, because no executions were scheduled before Bush leaves office on Jan. 2. His successor, fellow Republican Charlie Crist, said he also supports the moratorium.
Bush said he wants to ensure the process does not constitute cruel and unusual punishment, as some death penalty foes argued after Diaz’s execution. Florida has 374 people on death row; it has carried out four executions this year.
Diaz, 55, was put to death for murdering the manager of a Miami topless bar during a holdup in 1979.
The medical examiner’s findings contradicted the explanation given by prison officials, who said Diaz needed the second dose because liver disease caused him to metabolize the lethal drugs more slowly. Hamilton said that although there were records that Diaz had hepatitis, his liver appeared normal.
Inmate grimaced, continued to move
Executions in Florida normally take no more than about 15 minutes, with the inmate rendered unconscious and motionless within three to five minutes. But Diaz appeared to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words.
As a result of the chemicals going into Diaz’s arms around the elbow, he had a 12-inch chemical burn on his right arm and an 11-inch chemical burn on his left arm, Hamilton said.
Florida Corrections Secretary James McDonough said the execution team did not see any swelling of the arms, which would have been an indication that the chemicals were going into tissues and not veins.
Diaz’s attorney, Suzanne Myers Keffler, reacted angrily to the findings.
“This is complete negligence on the part of the state,” she said. “When he was still moving after the first shot of chemicals, they should have known there was a problem and they shouldn’t have continued. This shows a complete disregard for Mr. Diaz. This is disgusting.”
Earlier, in a court hearing in Ocala, she had won an assurance from the attorney general’s office that she could have access to all findings and evidence from the autopsy. She withdrew a request for an independent autopsy.
David Elliot, spokesman for the National Coalition to Abolish the Death Penalty, said the Diaz execution was just the latest in a long history of foul-ups on the state’s death row. “Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether its electrocution or lethal injection,” Elliot said. “We just think the Florida death penalty system is broken from start to finish.”
Electric chair's ghoulish past
Florida got rid of the electric chair after two inmates’ heads caught fire during executions in the 1990s and another suffered a severe nosebleed in 2000. Lethal injection was portrayed as a more humane and more reliable process.
Twenty people have been executed by lethal injection in Florida since the state switched from the electric chair in 2000.
In the California case, U.S. District Judge Jeremy Fogel said that the case under consideration there raises the question of whether a three-drug cocktail administered by the San Quentin State Prison is so painful that it “offends” the Eighth Amendment ban on cruel and unusual punishment.
Fogel said he was compelled “to answer that question in the affirmative.”
The U.S. Supreme Court has upheld executions — by hanging, firing squad, electric chair and gas chamber — despite the pain they might cause, but has left unsettled the issue of whether the pain is unconstitutionally excessive.
California has been under a capital punishment moratorium since February, when Fogel called off the execution of rapist and murderer Michael Morales amid concerns that condemned inmates might suffer excruciating deaths.
Do drugs render inmates unconscious?
Fogel found substantial evidence that the last six men executed at San Quentin might have been conscious because they were still breathing when lethal drugs were administered.
He ordered anesthesiologists to be on hand, or demanded that a licensed medical professional inject a large, fatal dose of a sedative instead of the additional paralyzing agent and heart-stopping drugs that are normally used. But no medical professional was willing to participate.
Attorneys for Morales alleged in a lawsuit that Morales might appear unconscious after being injected with a sedative, but internally he would suffer excruciating pain, “burning veins and heart failure,” once the paralyzing and the death drug were administered.
Morales, 47, of Stockton, raped and brutally beat a 17-year-old Lodi girl 25 years ago.
California’s death row is the nation’s largest, with more than 650 inmates.