Botched killing puts Death Row on hold

The future of the death penalty in the United States looked uncertain yesterday after a federal judge in California ruled that the lethal injection method used in three dozen states was unconstitutional in its current form, and Florida halted its own execution schedule following a botched procedure there last week.

Both decisions added credence to the growing body of evidence that condemned prisoners may suffer agony when they are put to death, and that chemicals intended to knock them unconscious may in fact only paralyse them, masking their pain.

The Florida decision was arguably the more surprising, since Jeb Bush, the outgoing governor, is a champion of the death penalty and has presided over a record number of executions in his state, much like his brother George Bush when he was governor of Texas. On Friday, Governor Bush announced that he was suspending all executions in Florida while a special commission looks into problems with the lethal injection and ways of fixing them.

That decision came two days after executioners on Florida's Death Row took 34 minutes, more than twice the usual time, to kill Angel Nieves Diaz, a career criminal convicted of killing a manager at a topless bar in Miami in 1979. Diaz was conscious almost 25 minutes into the procedure, by which time he had received double doses of all three lethal drugs. Preliminary findings by the state medical examiner suggested his executioners failed to find his veins and pumped the drugs instead into his arm tissue, where they formed large chemical burns.

A defensive Governor Bush told reporters that his commission, which is due to report on 1 March, would not be asked to question the validity of lethal injection as an execution method, or to question the death penalty. It will focus on streamlining procedures for administering the drugs - sodium thiopental, pancuronium bromide, and potassium chloride.

"All the people that are against the death penalty whenever there is a chance will call for suspending the death penalty," Governor Bush said. "That would be like ready, fire, aim. I think it is better to actually determine what happened." Death penalty opponents countered that Governor Bush's own attitude was an instance of "ready, fire, aim".

In California, meanwhile, federal judge Jeremy Fogel gave the clearest ruling yet that the three-drug method of lethal injection constituted cruel and unusual punishment and was thus a violation of the Eighth Amendment of the US Constitution. He was ruling on the case of a convicted rapist and murderer, Michael Morales, whose date with death last February was postponed because of evidence that the sodium thiopental used to render the prisoner unconscious did not always work, and that the pancuronium bromide, which paralyses the body, could itself inflict horrific pain.

Judge Fogel said the evidence was "more than adequate to establish a constitutional violation". He added: "Given that the state is taking a human life, the pervasive lack of professionalism in the implementation is... at the very least deeply disturbing."

His ruling is almost certain to halt executions for now in California, which has the most populous Death Row of any in the country, and could have a profound effect on rulings in other states. The issue will probably end up before the Supreme Court.

Judge Fogel did not rule out all forms of execution by lethal injection, and recommended investigation into using just one heavy barbiturate like sodium pentobarbital. The system, he wrote, "is broken, but it can be fixed".

Lethal injection was first used in Oklahoma in 1977 and became widely used because the ghoulish business of killing could be dressed up as a medical procedure. No doctor, however, has ever been consulted on the effectiveness of the three-drug procedure, since the Hippocratic oath precludes involvement in executions.