America turns its back on death penalty after botched lethal injection of killer

Number of condemned at lowest point for 30 years as opinion begins to change

Suzanne Goldenberg in Washington

Wednesday January 10, 2007

Guardian

It took Angel Nieves Diaz 34 minutes to die from the time the two executioners inserted the IV tubes into each arm and began pumping the chemicals into his body. His eyes widened. His head rolled. He appeared to speak. "It was my observation that he was in pain," Neal Dupree, a lawyer for Diaz and a witness to the execution, wrote in an affidavit. The faint signs of movement from the body strapped to the trolley continued for 24 minutes. "His face was contorted, and he grimaced on several occasions. His Adam's apple bobbed up and down continually, and his jaw was clenched."

Diaz's execution in Florida on December 13 for the murder of the manager of a topless bar was the last in the state for some months to come. Almost immediately after his body was removed from the execution chamber, it became clear that the execution had gone wrong.

The cocktail of three chemicals that was meant to have sent him to oblivion within moments had led to a painful, lingering death. After a report from the medical examiner found 12-inch-long chemical burns on Diaz's arms, the state governor, Jeb Bush, opened an inquiry into his death and suspended all executions, granting more than 370 people on Florida's death row at least a temporary reprieve.

Brutality

Although the brutality of Diaz's death merited attention across America, what has gone almost unnoticed is that the death penalty, once an article of faith for conservatives, is now in retreat.

The penalty remains the law in 38 states, but last year saw the lowest number of executions in a decade - 53 including Diaz. The number of condemned fell to the lowest level since the restoration of capital punishment in 1976: 114, compared with 317 in 1996.

Ten states have suspended executions, and for the first time last week, one state - New Jersey - announced it was leaning towards abolition. "The death penalty is inconsistent with evolving standards of decency," an official commission reported. New Jersey would be the first to take such a step since capital punishment was restored.

"The death penalty is on the defensive," said Richard Dieter, director of the Death Penalty Information Centre in Washington DC. "Its flaws are much more obvious now. If you are for the death penalty you are going to have to say how are we going to avoid executing innocent people."

Mr Dieter attributes much of the declining taste for the death penalty to science, with DNA and other new technologies used to establish innocence in cases where a jury has chosen to convict. More than 120 people have been freed from death row because of doubts about their conviction, including at least a dozen because of DNA testing.

Such doubts led George Ryan, the conservative Republican governor of Illinois, to impose a moratorium on executions seven years ago after more than a dozen wrongful convictions were overturned. His conversion came about when journalism students at Northwestern University produced a taped confession exonerating a man who had been on death row for 17 years. Other inmates on death row were later cleared by DNA, and subsequent investigations.

"Juries make mistakes. Prosecutors make mistakes. If you are for the death penalty you have to say we are going to lose innocent lives but it is worth it," Mr Dieter said.

In Florida, executions are on hold because of public queasiness about lethal injection following Diaz's botched execution. As the medical examiner discovered, technicians missed the veins when they were inserting the intravenous tubes into Diaz's arms, and it took a second injection to kill him. Death penalty opponents say such excruciating deaths are to be expected in American prisons. According to Human Rights Watch, one of the three chemicals in the mix of lethal injections has been banned for use on animals because of fears that it masks, rather than relieves, pain.

In New Jersey, where there have been no executions since the state restored the death penalty 25 years ago, the argument came down to the high cost of legal appeals while keeping people on death row. An official commission last week concluded it did not work. "There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent."

Last defence

The judiciary has also turned against the death penalty, with the supreme court barring the execution of the insane, people with learning difficulties, or minors, and lower courts turning to alternative sentences. Thirty-seven of the 38 states that retain the death penalty now have life without parole.

Death penalty opponents say that such lifelong prison terms make it increasingly difficult to argue that the death penalty is the last defence against a convicted killer going free. In the last few years, juries in celebrated capital cases have balked at imposing the final punishment. Zacarias Moussaoui, convicted last year over the September 11 attacks, got life in a maximum security jail. So did Gary Ridgeway, the Green River serial killer from Washington state, who admitted to murdering 48 people, and received a life term with no parole. If one of the worst serial killers in history does not deserve the death penalty, the argument goes, who does?

Mr Dieter said: "There are indications of change even in places like Texas and Virginia," the states that perform the most executions.

Those developments came too late for Diaz, as did the outrage over lethal injection. But for Suzanne Keffer, of the Capital Collateral Regional Counsel, his lawyer for the past eight years, his suffering may produce some good. "If you can look at it this way, that something good may come out of this ... it certainly may be a benefit."