California, Florida Use of Lethal Injection Halted

By Joel Rosenblatt and Karen Gullo
Dec. 15 (Bloomberg) -- The use of lethal injection in California and Florida was ordered halted because of questions about the length of such executions, and the possibility of causing pain and discomfort before the condemned dies.
A federal judge in San Jose, California, ruled today that the method is unconstitutional because it constitutes cruel and unusual punishment. In Florida, Governor Jeb Bush suspended the practice after a Dec. 13 execution took 34 minutes. The prisoner appeared to suffer, moved for 24 minutes and tried to speak as he died, said Suzanne Myers Keffer, his lawyer.
California's use of lethal injection, a combination of chemicals meant to sedate, end breathing, and stop the heart, creates a ``risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment,'' U.S. District Judge Jeremy Fogel ruled.
The federal government, the U.S. military and 38 states allow capital punishment, and all of those except Nebraska use lethal injection as the primary method of killing inmates sentenced to death, according to the Washington-based Death Penalty Information Center. Executive Director Richard Dieter said the actions by the two states may lead to a national review of the procedure.
``Taken together, today's decisions are historic,'' said Dieter. ``The two states with the largest death rows in the country now have holds on all executions.''
Other States
Elisabeth Semel, director of the American Bar Association's Death Penalty Representation Project, said the events in California and Florida may force other states to make changes in their lethal injection procedures.
``For people who oppose the death penalty it's an affirmation of the kind of problems we have pointed out for a long time,'' said Semel. ``For people who support the death penalty, this isn't going to change their minds.''
Bush, the brother of President George W. Bush, halted the signing of any additional death warrants in Florida until a commission he created to investigate the state's execution process completes its report, scheduled for March 1.
The ruling in San Jose involved Michael Morales, convicted in 1983 of the murder of 17-year-old Terry Lynn Winchell. Morales argued he might remain conscious and experience excruciating pain when given the three-drug lethal injection.
The number of Americans who support the death penalty has dropped from 80 percent in 1994 to 65 percent this year, Dieter said.
Drop in Support
``That's a drop, although its still strong support,'' he said. ``People are more hesitant about the death penalty than they have been.''
Appeals stemming from today's events in California and Florida may eventually end up before the U.S. Supreme Court, Dieter predicted.
``If they take a case, all executions will be on hold, in Texas and everywhere,'' he said. ``This sort of sets the stage, recognizing there are problems with the current method.''
Judge Fogel in February ordered California officials to review the state's method of administering the injections due to ``numerous anomalies'' in previous executions, said David Senior, a lawyer representing Morales.
``Here we are in December and the state hasn't even begun,'' Senior said. ``By contrast, the governor of Florida has taken prompt action to investigate and examine the issues. For some reason the state of California has elected not to do so.''
`Petulant'
California Governor Arnold Schwarzenegger's office has been ``petulant in their response to a very thoughtful judge who, using his language, respectfully suggested that they review their procedures,'' Senior said.
Morales' execution, originally scheduled for Feb. 21, was postponed after Fogel placed restrictions on how the state could carry out the procedure, including having a licensed health care professional inject any drugs used in the execution.
Schwarzenegger's administration will review the injections to make sure the procedure is constitutional, the governor's Legal Affairs Secretary Andrea Lynn said in an e-mailed statement.
``Governor Schwarzenegger will continue to defend the death penalty and ensure the will of the people is represented throughout the ongoing court proceedings,'' the statement said.
California Attorney General Bill Lockyer has ``urged'' the state's Department of Corrections and Rehabilitation and Schwarzenegger ``to take advantage of this opportunity'' to reform the procedure, Lockyer spokesman Nathan Barankin said.
The California case is Morales v. Woodford, 06-219, U.S. District Court Northern District of California, San Jose.