Two important stories took place on Friday:
First, Florida Governor Jeb Bush has issued a moratorium on the administration of the death penalty in Florida after reports that the execution of a convicted killer took 34 minutes,
-- twice as long as normal -- because officials botched the insertion of the needles that delivered the lethal chemicals, a medical examiner said Friday.
Gov. Jeb Bush responded to the findings by halting the signing of more death warrants until a commission he created to examine the state's lethal injection process completes its final report by March 1.
Dr. William Hamilton, who performed the autopsy, said the needles pierced Angel Nieves Diaz's veins and then went into soft tissue in his arms. The lethal chemicals are supposed to go directly into the veins.
Hamilton 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 toxicology tests and other tests may take several weeks.
Subsequent experts have opined that it was quite likely the inmate suffered at least some pain, with one physician (an opponent of the death penalty) remarking that it sounds like he was "tortured to death."
Second, a federal district court in California issued a Memorandum of Intended Decision stating that the current implementation of the death penalty in California is unconstitutional. Orin Kerr explains:
According to Judge Fogel, the Constitution regulates the procedures used to carry out an execution via lethal injection, including such matters as the lighting, design, and crowdedness of the room in which the execution occurs; the recordkeeping procedures used during executions; the procedures for screening of members of the execution team; and the training and oversight of the team. California's current practices are inadequate under this standard, Judge Fogel indicated, as they create an undue risk of an Eighth Amendment violation during an execution. As this only a "Memorandum of Intended Decision," not a final decision itself, Judge Fogel gave the state of California 30 days to respond. The memorandum specifically asks the state to inform the Court whether the state plans to change its procedures in light of the memorandum.
I have mentioned on this blog before that pain is a primary interest of mine, and it is interesting to note how quickly the subject comes up in this story. While my focus is on ethics and pain management, I do think that the issues and concerns enmeshing pain, death, and capital punishment are important. In June, the president of the American Society of Anesthesiologists published a letter on the ASA website urging anesthesiologists to refuse to participate in the lethal injection process for a variety of reasons.
As Dr. Guidry indicates, the participation of anesthesiologists has become an issue because several courts (in Missouri, N.C., and California, though similar suits have almost certainly been filed in a variety of jurisdictions and postures) have indicated that without a certification that the inmate had been adequately anesthetized, the procedure might well fail constitutional muster. Thus pain is intimately connected to concerns about capital punishment.
I have briefly written on this subject here (.pdf), and, for an extensive treatment, I heartily recommend Pain, Death, and the Law (2001), edited by Austin Sarat.
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