Now, we move to California and reaction to Judge Fogel's opinion. Again, we'll start with the New York Times story reporting on yesterday's bicoastal developments.
Deborah W. Denno, an authority on execution at the Fordham University Law School, said Judge Fogel’s decision was “both bold and safe.”
“Judge Fogel’s decision is the most definitive response so far in concluding that a state’s lethal injection protocol, in its current form, is unconstitutional under the Eighth Amendment,” Professor Denno said.
Even as Judge Fogel issued a withering critique of the way California executes condemned inmates, he invited the state to submit a revised protocol to remedy the shortcomings. Similarly, Mr. Bush suggested that executions in Florida might resume after his panel gives its final report in March.
Judge Fogel found that prison execution teams had been poorly screened and had included people disciplined for smuggling drugs and with post-traumatic stress disorder. Moreover, the team members are poorly trained and supervised, he said.
Record keeping is spotty, the judge found, and the chemicals used are sometimes improperly prepared. The death chamber, he added, is badly lighted and overcrowded.
“Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation,” Judge Fogel wrote. “This is intolerable under the Constitution.”
Judge Fogel also noted concerns about the chemicals that California, Florida and 35 other states use. The protocols vary slightly, but almost all call for a series of three chemicals. The first is a barbiturate to render the inmate unconscious. The second is a paralyzing agent that makes the inmate unable to speak, move or breathe. The third is potassium chloride, which stops the heart.
Both sides in California agreed that it would be unconstitutional to inject a conscious person with either or both of the second two chemicals. The paralyzing agent would leave the inmate conscious while he suffocated, and potassium chloride is extremely painful.
The two sides also agreed that if the first drug was effective, using the others did not violate the constitution.
Judge Fogel suggested a way out. Were inmates executed in the same way that animals were euthanized, solely by an anesthetic, that would, he wrote, “eliminate any constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure that the inmate actually receives a fatal dose of the anesthetic.”
The Los Angeles Times has, " Ruling halts state method of execution."
Fogel, who visited the death chamber in San Quentin and held a four-day hearing in San Jose in September, said the case generated evidence that "is more than adequate to establish a constitutional violation."
His decision was replete with stinging criticisms of state officials for failing to take the necessary steps to correct problems in the procedure — steps the judge urged them to take in February.
"Given that the state is taking a human life, the pervasive lack of professionalism in the implementation" of the lethal injection protocol is "at the very least deeply disturbing," Fogel wrote.
Morales' execution was scheduled for February, but the state postponed it after being unable to meet conditions imposed by the judge, who became concerned that the procedure was not working correctly.
"As this court noted" in its February order, "anomalies in six execution logs raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected," Fogel wrote. "These substantial questions remain unanswered."
The Sacramento Bee has, "Judge: Rethink lethal injection."
Fogel made it clear that Friday's opinion is not his final judgment, and he ordered the state to advise him within 30 days whether it intends to review and revise the procedure.
The judge said he is prepared to rule in the state's favor if the Governor's Office comes up with a proper method of administering three drugs that guarantees "a constitutionally adequate level of anesthesia."
If the governor is willing to revise the process, Fogel said, he also wants to be told how long that might take.
"It sounds like the judge is saying, 'You've made progress, but you're not there yet,' " Stanford law professor Robert Weisberg said. "I guess that this will just continue to get negotiated, and the state will make the adjustments that he wants."
Lethal injection issues in California and Florida show the need to improve the procedures, but do not threaten them altogether, he said.
The San Francisco Chronicle has, "Judge issues ultimatum to state on executions."
Fogel said he would declare the state's lethal-injection system unconstitutional if it is not changed. But he stressed that he was condemning neither capital punishment nor lethal injection itself, which is the exclusive or preferred method of execution in all of the 38 death-penalty states except Nebraska, which uses the electric chair.
"The use of lethal injection in executions represents an evolution from earlier methods such as hanging, electrocution and lethal gas that now are viewed by most jurisdictions as unduly harsh,'' Fogel said. He observed that, when properly administered, lethal injection "results in a death that is far kinder than that suffered by the victims of capital crimes.''
The state's "implementation of lethal injection is broken, but it can be fixed,'' Fogel said.
Gov. Arnold Schwarzenegger's office indicated that the state would try to do so.
The San Jose Mercury News has, "Fix needed to resume executions."
Legal experts consider the California case crucial because of the unprecedented amount of evidence presented, raising the possibility Morales' challenge could ultimately force the U.S. Supreme Court to settle whether lethal injection passes constitutional muster. The Supreme Court has never outlawed a method of execution.
Since last spring, Fogel has accumulated a wealth of evidence from both sides, holding a weeklong hearing in September to hear hours of testimony on the pros and cons of California's system of executing inmates.
Morales' lawyers have argued that California's lethal injection procedure has few safeguards to ensure an inmate is put to death humanely, offering testimony from former San Quentin execution team members who acknowledged they were not trained to carry out the task.
The central argument against the state's procedure is that the combination of three drugs masks the possibility that the inmate experiences excruciating pain during an execution. In particular, critics have warned that the first drug may not succeed in rendering an inmate fully unconscious and that the second drug, pancurium bromide, masks evidence that the final and fatal drug, potassium chloride, causes searing pain before death.
At various points in Friday's ruling, Fogel expressed frustration with the state's approach to executions and its lackluster response to the judge's invitation to offer solutions earlier in the case. The judge called the state's recent reluctance to cure problems ``self-defeating'' if it wants to enforce the state's death penalty.
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