David Kravets
Associated Press
SAN FRANCISCO - A federal judge who imposed a moratorium on state executions ruled Friday that the state's lethal injection method violates a constitutional ban on cruel and unusual punishment.
California's "implementation of lethal injection is broken, but it can be fixed," U.S. District Judge Jeremy Fogel in San Jose said.
The decision is expected to further delay executions as Gov. Arnold Schwarzenegger's staff revises execution procedures.
Fogel said the case presented the narrow question of whether the three-drug cocktail delivered by San Quentin State Prison officials creates an unnecessary risk that an inmate will suffer such "extreme pain that it offends the Eighth Amendment."
Fogel said he was compelled "to answer that question in the affirmative."
The decision is the latest in a nationwide challenge to lethal injection - the preferred execution method in 37 states - and came as Florida Gov. Jeb Bush suspended all executions there after a bungled execution this week. Missouri's injection method, which is similar to California's, was declared unconstitutional last month by a federal judge.
Fogel reached his decision after holding a four-day hearing in September that revealed prison guards were inadequately trained to participate in executions. One prison official who was part of the execution team had been sanctioned for smuggling drugs into San Quentin.
Drugs were not properly accounted for, at times they weren't properly mixed, and unused drugs were not returned to the prison's pharmacy. Executioners worked in the crowded chamber under dim lights.
"The evidence is more than adequate to establish a constitutional violation," Fogel said.
Fogel said he was satisfied that the three drugs could kill an inmate without unnecessary pain, but not the way the state has been carrying out executions. But Fogel wondered whether the combination of drugs was necessary, given that the American Veterinarian Association said it would not euthanize animals the same way California executes inmates.
He demanded Schwarzenegger work with prison officials to revise the state's execution procedure, but stopped short of demanding that medical professionals participate.
"The administration will review the lethal injection protocol to make certain the protocol and its implementation are constitutional," said Andrea Lynn Hoch, the governor's legal affairs secretary.
Deborah Denno, a lethal injection expert at Fordham University Law School, said the decision is "definitely going to delay executions" in the short term. She said it was likely to give lethal injection a black eye, but not necessarily end its use.
"I think in the end it means there's going to be a lot more scrutiny in the way people are executed," she said. "Whether it will make (executions) more humane, I don't know."
Civil rights groups immediately hailed the decision.
"Every day the evidence mounts that the United States is using unacceptably cruel methods to put people to death," said Jamie Fellner, a Human Rights Watch director.
The U.S. Supreme Court has upheld executions - by lethal injection, hanging, firing squad, electric chair and gas chamber - despite the pain they might cause, but has left unsettled the issue of whether the pain is unconstitutionally excessive.
California has been under a capital punishment moratorium since February when Fogel halted the execution of rapist and murderer Michael Morales amid claims inmates were suffering excruciating deaths.
Instead of making significant changes to the execution protocol at the time, California defended its procedure in court.
"What our state has done instead, unlike Florida, is to thumb its nose and be petulant about whether their execution process comported with the Eighth Amendment," said David Senior, Morales' lead attorney.
In stopping Morales' execution, Fogel found substantial evidence that the last six men executed at San Quentin might have been conscious and still breathing when lethal drugs were administered.
He ordered anesthesiologists to be on hand for Morales' execution, or demanded that a licensed medical professional inject a large, fatal dose of a sedative instead of the additional paralyzing agent and heart-stopping drugs used. The execution, however, was postponed when no medical professional offered to participate.
Attorneys for Morales alleged in a lawsuit that Morales might appear unconscious after being injected with a sedative, but internally he would succumb to excruciating pain, "burning veins and heart failure," once the paralyzing and the death drug were administered.
Morales, 47, of Stockton, raped, beat and stabbed Terri Winchell, 17, of Lodi, 25 years ago. Her body was found in a secluded vineyard.
"We hope that Mr. Morales' execution will take place as soon as possible," said Los Angeles attorney Gloria Allred, who represents Winchell's mother.
There are more than 650 men and women on California's death row, the nation's largest.
The case is Morales v. Tilton, 06-219.
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Editors: David Kravets has been covering state and federal courts for more than a decade.
http://www.mercurynews.com/mld/mercurynews/news/local/states/california/nort hern_california/16251372.htm
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