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Two States Put Lethal Injections on Hold

December 19, 2006 at 6:35 PM EST
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JUDY WOODRUFF, NewsHour Special Correspondent: Thirty-seven of the 38 states that have the death penalty use lethal injection as their method of execution. But on Friday, the brakes were applied in two of those states: Florida and California.

In Florida, Governor Jeb Bush suspended executions after it took two injections and 34 minutes, more than twice the expected time, to execute a convicted murderer. The governor appointed a panel to review whether the way lethal injections are administered in the state violates the U.S. constitutional prohibition against cruel and unusual punishment.

Separately, in California, Federal Judge Jeremy Fogel determined that state’s method of administering lethal injection is unconstitutional. He ordered a moratorium on executions until the state fixes its procedures.

Yesterday, Governor Arnold Schwarzenegger said his staff will take immediate action to comply.

Two views now on the administration of lethal injections. Richard Dieter, he is executive director of the Death Penalty Information Center.

And Jeff Middendorf, he is general counsel of Kentucky’s Justice and Public Safety Cabinet. Last month, Middendorf successfully defended his state’s lethal injection procedures before the Kentucky Supreme Court.

Gentlemen, thank you both for being with us.

To you first, Richard Dieter, tell us just briefly more about what happened in Florida, what triggered all this.

RICHARD DIETER, Death Penalty Information Center: What happened was an execution that went totally wrong. They injected the chemicals into the muscles rather than into the vein, and it took two complete dosages, much longer than expected.

The inmate was grimacing. He was trying to say things. He was moving around. And with that, the Florida governor called a halt to all executions. They don’t want this happening again.

JUDY WOODRUFF: How often does this sort of thing happen?

RICHARD DIETER: We have a list of about 38 botched executions, most of them lethal injections. It doesn’t occur with every one, but these are procedures that are often done in a medical atmosphere. But they’re being done in lethal injection chambers by guards, by prison officials. And so things can go wrong.

JUDY WOODRUFF: And, Richard Dieter, what about in California? A different situation. You didn’t have a botched execution, but you had a legal review that led to…

RICHARD DIETER: Yes, they took more of a proactive — or the judge there demanded that they take a proactive approach and held hearings, called in experts from around the country, conducted, you know, many days, went to the execution chamber himself, the judge, to see how things were done, and said, “This is not the way it’s supposed to be. This is not in comport with human dignity. This is very risky, and I’m going to hold it all up until you fix this process.”

The 'cocktail of chemicals'

Jeff Middendorf
Kentucky Justice & Public Safety Cabinet
The amount of time that took place in Florida would certainly concern us here in Kentucky. However, here in Kentucky, the Supreme Court recently upheld lethal injection by a 7-0 vote.

JUDY WOODRUFF: Jeff Middendorf, in Kentucky, now this has not happened in your state. From your perspective, can you understand why, in these states and it looks like maybe in others, they're taking another look at lethal injection?

JEFF MIDDENDORF, Kentucky's Justice and Public Safety Cabinet: Sure, I can certainly understand. The amount of time that took place in Florida would certainly concern us here in Kentucky. However, here in Kentucky, the Supreme Court recently upheld lethal injection by a 7-0 vote.

And one of the things that would safeguard that same incident from happening here in Kentucky is we have a restriction on the amount of time that actually someone has to appear unconscious or be unconscious, and it's one minute.

Unlike down in Florida, where it went on for a long period of time, we would begin a second set of chemicals, starting with the sodium thiopental, in the second site, so that would be able to take care of that situation and to assure that a painless death took place.

JUDY WOODRUFF: Let me just interrupt you, because you're referring to the chemicals that are typically used, as we understand it, what, in 38 states, 37 states around the country. There's a so-called cocktail of chemicals, is that right?

JEFF MIDDENDORF: That's correct.

JUDY WOODRUFF: And that's pretty standard?

JEFF MIDDENDORF: It's pretty consistent. It's pretty standard across the United States that use lethal injection. And as I mentioned, here in Kentucky, we have those safeguards in place, so the incident that happened in Florida would not happen here in Kentucky.

And the Supreme Court recently decided that less than a month ago that the safeguards put in place by Kentucky's protocol assures that it is a constitutional execution.

Administering lethal injection

Richard Dieter
Death Penalty Information Center
There've been some autopsies now done on inmates who have been executed, and the level of the anesthetic was consistent with consciousness, so they may have been conscious. We'll just never know; they're dead now.

JUDY WOODRUFF: Richard Dieter, this has only happened now in two states. Does this in any way signal that lethal injection as a form of death penalty is in some sort of jeopardy?

RICHARD DIETER: It is in some jeopardy, because it's a medical procedure. It was at first recommended by some doctors, or at least the chemicals were, and yet it's being performed without the medical supervision.

So there's a fundamental question of whether these can ever be done reliably. And it's coming to a head, not just in these two states, but in federal courts throughout the country. They're hearing the same issue being raised.

JUDY WOODRUFF: Do you see it that way, Mr. Middendorf, a fundamental question about whether the lethal injection can be administered in a reliable, consistent way?

JEFF MIDDENDORF: Well, certainly, the Supreme Court in Kentucky recently said it can, and, you know, this is a new way of challenging the death penalty, and it is spreading throughout the country.

We had a five-day trial with 20 experts; 17 depositions were conducted prior to that. And, really, the experts throughout the country, even those that came in on behalf of the inmates that are set to be executed, agreed that it comes down to the proper siting of the I.V.

And, really, once that takes place and the sodium thiopental takes effect, the other drugs aren't going to affect and cause any pain to the inmate.

JUDY WOODRUFF: Well, if that's the case, Mr. Dieter, if that's -- is that all that would need to be done to make sure that it's administered consistently and according to the rule book in every state?

RICHARD DIETER: You know, one of the problems is that the inmate appears to be unconscious. And that's in the eyes of the guards who are watching, not in the eyes of an anesthesiologist.

They're administered a drug that paralyzes them, that makes them look like they're totally, you know, out of the consciousness, but that may not be the case. There've been some autopsies now done on inmates who have been executed, and the level of the anesthetic was consistent with consciousness, so they may have been conscious. We'll just never know; they're dead now.

JUDY WOODRUFF: What about that, Mr. Middendorf? If that's the case, are there flaws then in this system that's used so widely?

JEFF MIDDENDORF: Well, certainly, that's purely speculation on the other side's behalf. And what the testimony that came out in Kentucky was, when Mr. Dieter mentions those lower sodium thiopental levels and autopsy results, they're taking those results and comparing them to anti-mortem standards.

If you look at those results with post-mortem standards, they fall within that therapeutic range. And, of course, a therapeutic range means that it's having the desired effect, which is unconsciousness.

JUDY WOODRUFF: Could you put that in layperson's terms very quickly? What are you saying?

JEFF MIDDENDORF: Basically, the numbers often that are showed in autopsy results from the other side indicating that they could possibly be conscious, they're comparing apples and oranges, the final results of that, in saying that it's possible they're awake.

JUDY WOODRUFF: Do you want to respond quickly?

RICHARD DIETER: Just to say that these drugs are no longer being used by veterinarians in the euthanasia of animals, I think that says something about the quality of this kind of cocktail and this method. I think we need to look at this in a whole new light, hear from the experts, as was done in California.

You know, Kentucky, I applaud their review, but they've only had one execution by lethal injection. Florida thought everything was OK, too, and then, you know, the train wreck happened the other night. So I think there's -- we need to have an open mind about all of this.

Lethal injection before the courts

Richard Dieter
Death Penalty Information Center
We're going to have a longer period of regional exploration of this issue. And then, yes, I think eventually the Supreme Court -- this is a constitutional issue that affects the whole country -- they may well step in.

JUDY WOODRUFF: Let's talk about what happens from here going forward. Mr. Middendorf, do you expect this could end up in the U.S. Supreme Court? And what do you see unfolding?

JEFF MIDDENDORF: Well, it certainly could end up there. I don't know if the justices of the Supreme Court have decided to take one of those cases up. I think it's going to be regionally, at least for now.

The two inmates that lost here in Kentucky before the Kentucky Supreme Court have now moved to intervene in federal court. We're certainly opposed to them trying to get a second bite of the apple. And I think, at some point, there will probably be an execution date set soon in Kentucky.

And we'll have to determine if either a federal judge or either the Supreme Court takes a look at that again here in Kentucky and stays the execution. But I think it's going to be a regional stoppage from here on out, depending on the protocols of the different states that are involved.

JUDY WOODRUFF: Mr. Dieter, Mr. Middendorf said a minute ago that he views this, to some extent, as an attack or an effort to end the death penalty. Is that a big part of what's involved here?

RICHARD DIETER: Well, what's happening here is lawyers who are ethically obligated to try to keep their clients alive are using this issue, because it's a valid issue. I mean, they're not trying to end the death penalty; they have to raise these concerns. This is not coming from some sort of anti-death penalty movement.

And it appears to have some substance to it. There are, you know, doctors now saying, "We wouldn't do this anymore." So there's real substance to this claim, whatever side issues, you know, may result. It may result in the end of the death penalty, but that's not why it's being raised.

JUDY WOODRUFF: And, on the Supreme Court count, do you expect it to go to the high court?

RICHARD DIETER: I think Mr. Middendorf is right. We're going to have a longer period of regional exploration of this issue. And then, yes, I think eventually the Supreme Court -- this is a constitutional issue that affects the whole country -- they may well step in.

JUDY WOODRUFF: So, Mr. Middendorf, you expect that to happen, even if somebody were to come up with some sort of consistent procedure for this to be administered?

RICHARD DIETER: Well, yes, I think at some point the Supreme Court will probably review it. However, as long as you have 50 different states with different protocols, it's difficult to do it in a vacuum, saying that one size fits all.

It's because it is different. Like I said, here in Kentucky, the Supreme Court has upheld it. And we've put those safeguards that appear not to be in place in Florida and at least California at this point.

JUDY WOODRUFF: We're going to leave it there. Jeff Middendorf, joining us from Kentucky, Richard Dieter here in Washington, gentlemen, we thank both of you. We thank you.

RICHARD DIETER: Thank you.

JEFF MIDDENDORF: Thank you.