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Dead wrong

Instead of tackling the big question posed by executions, the governor is trying to prop up a flawed system.

December 20, 2006

IN ORDERING CHANGES in the way lethal injections are administered to condemned prisoners in California, Gov. Arnold Schwarzenegger is doing the right thing for the wrong reason.

It's not only right but imperative that the state correct the flaws in the lethal-injection protocol that were dispassionately detailed by U.S. District Judge Jeremy Fogel in a "memorandum of intended decision" issued last week. Fogel's ruling followed a trial at which witnesses portrayed lethal injection in this state as a haphazard procedure in which some condemned inmates might have been conscious in their last moments of life.

But in promising to redress what Fogel had called a "pervasive lack of professionalism" in lethal injection, Schwarzenegger didn't emphasize -- as the enlightened centrist chief executive he fancies himself should have -- the need to spare even convicted murderers cruel and unusual punishment, by a moratorium on executions if necessary. No, Schwarzenegger indicated that he was seeking changes in what is blandly known as Operational Procedure No. 770 to keep judges from thwarting what the governor called "the will of the people [that] the death penalty is maintained in California." That death row inmates might be spared excruciating pain would be merely a byproduct of crossing the legal t's and dotting the i's.

That focus on propping up the death penalty is one problem with the governor's response to Fogel's decision. Another is that Schwarzenegger seems unwilling to entertain the possibility that what is really inappropriate about a civilized state's embrace of capital punishment -- by lethal injection or any other means -- is not the infliction of pain but the extinguishing of human life.

Contrary to Fogel's assertion in his opinion that the propriety of capital punishment is a matter for the Legislature, there was a time when judges took a broad view of whether the death penalty in its totality -- and not just in a few botched executions -- amounted to cruel and unusual punishment.

In 1972, the U.S. Supreme Court struck down state death penalty laws then on the books. In a much-quoted opinion, Justice Potter Stewart said that capital punishment was imposed "wantonly and freakishly," adding that "these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual." The same is true, we believe, of the selective, even capricious imposition of the death penalty at the present time, whether or not the chemical cocktail administered to a prisoner is mixed in a way that minimizes pain. Tinkering with the machinery of lethal injection is only the beginning.

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