By BOB EGELKO
San Francisco Chronicle
February 23, 2006
San Quentin State Prison officials' inability to meet conditions laid down this week by a federal judge for the execution of a rapist-murderer makes California the fourth state in which the future of lethal injections has been thrown into doubt. No executions can take place in California at least until May, when the judge will hold the state's first-ever hearings on whether injections are constitutional.
A separate challenge in federal court in Missouri has at least temporarily halted lethal injections in that state. The U.S. Supreme Court recently blocked a Florida execution to consider how inmates should be allowed to challenge lethal injection methods. In New Jersey, a state court barred lethal injections in 2004 because of questions about the state's procedures.
"I think we are coming to a place where real change is possible," said Deborah Denno, a law professor at Fordham University and a death penalty opponent.
"We're in uncharted territory," acknowledged a death penalty supporter, Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento.
At the heart of the issue in California is whether lethal injections can be guaranteed not to cause pain to the person being executed. U.S. District Judge Jeremy Fogel in San Jose insisted that someone with medical training be in the death chamber Tuesday during Michael Morales' execution to make sure he was unconscious as he was being injected with lethal drugs, something the state said it could not arrange.
A sticking point is the refusal of most medical professionals to be part of executions.
"On the one hand, we need humane execution procedures to satisfy the Eighth Amendment" ban in the U.S. Constitution on cruel and unusual punishment, Denno said. "On the other hand, the proper way to ensure that is to get the involvement of the medical community, but the medical community today, and historically, has never wanted to get involved. I don't know how it's going to be resolved."
Scheidegger expressed dismay that Fogel and opponents of lethal injection appeared to be assuming that the Constitution guarantees the right to a painless execution. Such a requirement, he said, could be impossible to fulfill.
"A humane method does not necessarily mean a pain-free method," Scheidegger said. "It doesn't bother me if, in the process of execution, a person feels some pain. ... The idea that a murderer is entitled to a painless death, which relatively few of us are going to have, I don't think is sustainable."
The proper standard, countered Denno, is whether any method of execution causes "unnecessary pain and suffering."
Lethal injection is an optional or exclusive method of execution in 37 of the 38 death penalty states; Nebraska, which uses the electric chair, is the sole exception. Injection was adopted in California in 1996 after a federal judge and an appeals court ruled that the gas chamber at San Quentin posed an undue risk of causing an agonizing death.
The U.S. Supreme Court set that ruling aside when the state made lethal injection the primary method of execution, leaving the gas chamber as a theoretical option if an inmate chooses it.
The high court has never ruled on the constitutionality of lethal injection or any other method of execution. But that could change if the Morales case or another challenge proceeds through the federal courts.
Supreme Court review is a possibility if an appeals court rules that lethal injection procedures are unconstitutional, said Elisabeth Semel, director of the death penalty clinic at the University of California's Boalt Hall School of Law.
The lethal drugs, each capable of causing death independently, are injected in a sequence: the first, sodium pentothal, causes rapid unconsciousness; the second, pancuronium bromide, paralyzes the voluntary muscles; and the third, potassium chloride, stops the heart. The procedure typically takes about 10 minutes.
Morales, 46, was scheduled to die at 12:01 a.m. Tuesday for the 1981 rape and murder of 17-year-old Terri Winchell. His lawyers argued that the state's procedures were flawed because inadequately trained or equipped prison staff could not be relied on to administer an adequate dose of sodium pentothal. Without that dose, Morales could be conscious and in severe pain from the final two drugs, they argued.
Citing evidence of possible problems in six San Quentin executions, Fogel told state officials that Morales could be executed only if steps were taken to make sure he was unconscious while dying - an order that led to a collision with the medical profession.
Two anesthesiologists first agreed to monitor the execution but then backed out. When Fogel said the state could execute Morales later Tuesday using only sodium pentothal, as long as the drug was administered directly by someone licensed to do injections, the prison said it couldn't find a doctor, nurse or medical technician who would take on the task. As a result, the state postponed the execution indefinitely.
The conflict was inevitable once states adopted medical procedures for executions, said Lance Lindsay, executive director of Death Penalty Focus, an anti-capital punishment group in San Francisco.
"If courts have expressed a lack of confidence in the traditional execution protocol and are beginning to require that medical professionals be inserted into the execution procedure, it's now in the hands of the medical profession to decide if they want to be part of the execution team," he said.
Pro-death penalty activist Dudley Sharp said the issue of doctors' involvement has the potential of banning lethal injection.
If courts require a licensed medical professional to be involved in an execution, "they'll do away with lethal injection as a method of execution, because you will get the same response that you just had in California," said Sharp, head of the Houston group Justice for America.
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