Fordham University Law School Professor Deborah Denno had this comment on Judge Fogel's order:
Judge Fogel's decision is bold and incisive. It is the most
comprehensive decision in the country to determine that a state's
lethal injection protocol, in its current form, is "intolerable"
and unconstitutional under the Eighth Amendment. The decision goes
into impressive detail explaining the reasons for the court's
conclusion, as well as all the evidence that the court reviewed to
reach it.
To remedy California's intolerably flawed lethal injection process,
Judge Fogel put the onus squarely on the Governor's office. The
Governor can meet that challenge in several ways.
The Governor could establish a commission on lethal injection like
that ordered by Gov. Bush of Florida. Or the Governor could order
hearings of the type requested by Mr. Morales in his recently filed
challenge to the California Department of Corrections' failure to
conduct administrative hearings before promulgating the lethal
injection procedures.
Whether the Governor's Office can respond to the challenge it has
been given and promote the development of a protocol that rectifies
the problems that have dogged lethal injection remains to be seen.
I credit Judge Fogel for a well-reasoned decision that takes the
design of an execution protocol away from the Department of
Corrections and encourages the Governor to institute a meaningful
review that can address the currently grievously flawed system.
Denno is perhaps the foremost academic examining contemporary lethal injection issues. You can view some of her most recent work at the Social Science Research Network (SSRN), including the 2002 paper, "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us," and her 2006 paper, "The Lethal Injection Quagmire: How Medical Participation and Procedures Have Changed the Face of Executions."
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