Toobin: Cruelty-free execution is difficult

Florida prisoner's 34-minute death prompts moratorium


California judge calls injection method unconstitutional

CNN expert says Supreme Court will ultimately have to rule

PALO ALTO, California (CNN)

-- After it took 34 minutes for an inmate in Florida to die by injection, Gov. Jeb Bush on Friday ordered a moratorium on all executions in the state. Meanwhile, a federal judge in California ruled Friday that lethal injection could be unconstitutionally cruel and unusual punishment and stopped executions in that state.

CNN senior legal analyst Jeffrey Toobin discussed the meaning of these developments with CNN anchor Wolf Blitzer on "The Situation Room."

BLITZER: Jeff, let's talk about the decision by Florida Gov. Jeb Bush to issue a moratorium, a suspension of all executions in the state of Florida after one prisoner who was executed, it took him more than a half an hour to use the lethal injection to kill him.

TOOBIN: This is the culmination of something that's been building for several years. The lethal injection was invented as a supposedly more humane alternative to the gas chamber, which replaced electrocution, which replaced hanging.

And it turns out, this is simply a lot harder to do than people expected. And one of the chemicals used in lethal injections in this country has been banned for veterinarians to put animals to sleep because of its supposed cruelty.

This is filtering through the legal system. ... The executions aren't going well, so the courts are now having a struggle with this issue once again.

BLITZER: And the constitutional issue is that, presumably, the person about to be executed was going through an unreasonable amount of torture or suffering. Is that the issue?

TOOBIN: Exactly. The Eighth Amendment prohibits cruel and unusual punishment. The Supreme Court has held that that doesn't mean that you can't execute people. The court has said many times that executions are legal, but they have never said what kinds of executions are legally permissible.

And what seems very likely to happen as a result of these latest series of controversies, both legal and political, that is, the decision in California and the political decision by Gov. Bush, is that the Supreme Court is going to have to deal with this issue because so many states have lethal injection now, and it is now just not clear whether that constitutes cruel and unusual punishment.

BLITZER: The federal judge in California issued his ruling opposing a moratorium on executions in California, saying that that state's lethal injection method is unconstitutional. Implementation of lethal injection is broken, Judge Jeremy Fogel said in San Jose. But he also said it can be fixed.

So that means, I would surmise, that they have to come up with a better way, a better lethal injection or some other way of executing prisoners.

TOOBIN: It turns out that it's actually hard to kill someone in a humane way. It seems odd to say it, but it is just harder than you might -- than those of us who are not scientists might -- expect.

And cases like this are filtering all through the legal system. The judge in California decided this one today, but there's a case in Tennessee. There are cases in Florida.

In fact, most prisoners who are on the verge of execution because -- with the use of lethal injection, which is overwhelmingly the choice of the 38 states that have the death penalty -- are challenging their execution on this ground, and the Supreme Court in the next year or so almost certainly is going to have to take up this issue, which it has not yet done.