Opinion: Is the death penalty, as it is currently administered, a violation of constitutional provisions against cruel and unusual punishment?

OCALA, Florida (AP) -- Gov. Jeb Bush suspended executions in Florida after a medical examiner said Friday that prison officials botched the insertion of the needles when a convicted killer was put to death earlier this week.

Separately, a federal judge in California imposed a moratorium on executions in the nation's most populous state, declaring that the state's method of lethal injection runs the risk of violating 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."

Fogel said the case raised 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."

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.

Fogel found substantial evidence that the last six men executed at San Quentin might have been conscious and 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.

In Florida, medical examiner Dr. William Hamilton said Wednesday's execution of Angel Nieves Diaz took 34 minutes -- twice as long as usual -- and required a rare second dose of lethal chemicals because the needles were inserted clear 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.

Missing a vein when administering the injections would cause "both psychological and physical discomfort -- probably pretty severe," said Dr. J. Kent Garman, an emeritus professor of anesthesia at the Stanford School of Medicine in California. "All the drugs would be much slower to affect the body because they're not going into a blood vessel. They're going under the skin. They take a long time to be absorbed by the body," said Garman. He said he was ethically opposed to lethal injection.

An inmate would remain conscious for a longer period of time and would likely be aware of increased difficulty breathing and pain caused by angina, the interruption of blood flow to the heart, he said. Jonathan Groner, associate professor of surgery at Ohio State University, said the injection would cause excruciating pain "like your arms are on fire."

Bush created a commission to examine the state's lethal injection process in light of Diaz's case, and he halted the signing of any more death warrants until the panel completes its final report by March 1. The governor said he wants to ensure the process does not constitute cruel and unusual punishment, as some death penalty foes argued bitterly 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. 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 experts his group had contacted suspected that liver disease was not the explanation for the problem.
"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."

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 injection in Florida since the state switched from the electric chair in 2000. Lethal injection is the preferred execution method in 37 states.