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State Will Help Shape Fate of Lethal Injection

The Morales case gives California a key role in a national debate over the method's humaneness.

February 23, 2006|Henry Weinstein | Times Staff Writer

By halting the execution of convicted murderer Michael Morales this week, California finds itself at the forefront of a growing debate about whether being put to death by lethal injection is more humane than other methods or in reality masks a painful end.

The question is likely to intensify in the coming months as the U.S. Supreme Court considers the issue and California reexamines its procedure after a federal judge said the method had to be modified because of concerns he had after reviewing evidence of recent executions.

More than 840 people across the nation have been executed by lethal injection in the last 30 years, but the issue of whether it violates the constitutional prohibition against cruel and unusual punishment has only recently come to the fore.

Death penalty foes such as Century City attorney Stephen Rhode think the debate signals a critical moment in the history of capital punishment.

"They are hitting the wall in the futile search for a humane death penalty," said Rhode, vice president of Death Penalty Focus, which spearheads opposition to capital punishment in California.

Most legal analysts doubt that the Supreme Court will conclude that lethal injection violates the constitutional ban.

Joshua Marquis, an Astoria, Ore., prosecutor and vice president of the National District Attorneys Assn., likened the court challenges to a "Hail Mary" pass by a football team late in a game. But even advocates of the death penalty think that states may be required to change their procedures.

California "is legitimately criticized for not doing enough homework on the protocol," which calls for a three-drug cocktail of a sedative, a paralytic agent and a heart-stopping chemical, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento.

The protocol was first adopted in Oklahoma in 1977, and "states just seem to copy [it] without much scientific backup for what they adopted," he said.

Scheidegger, whose organization actively defends capital punishment in major court cases, said two events in the last year have given the issue momentum: an article in a medical journal and action by the Supreme Court.

In April, the British journal Lancet published an article saying lethal injection, employed by 37 U.S. states as presumably painless, may inflict unnecessary suffering because of a routine failure to use enough anesthesia, according to a study of autopsies of executed inmates.

That article gave ammunition to defense lawyers seeking to challenge lethal injections.

Then, in recent months, the Supreme Court agreed to stay two executions in Florida until it resolved the question of whether death row inmates can bring last-minute civil rights challenges that execution by lethal injection is cruel and unusual.

Those cases are not a direct challenge to Florida's execution procedure, but the Supreme Court's action prompted immediate reaction from Gov. Jeb Bush.

Earlier this month, Bush said he would not sign any more execution warrants until the issue was resolved.

"We don't know why the Supreme Court's done what it's done, so the uncertainty probably does create a need to wait," he said.

In mid-February, a team of lawyers, led by veteran Supreme Court litigator Thomas C. Goldstein of Washington, D.C., asked the high court to review a Tennessee Supreme Court decision that upheld the constitutionality of the state's lethal injection protocol, which is similar to California's.

In particular, the attorneys for condemned inmate Abu-Ali Abdur'Rahman say the use of the drug Pavulon (also known as pancuronium bromide) is unconstitutional because of the risk that it will result in their client's suffering inhumane pain.

It is not clear whether the Supreme Court will take the case. But Abdur'Rahman's lawyers, who have mounted a carefully sculpted challenge to the Tennessee law, are hopeful. Unlike many of the other recent legal assaults, "this case is not an eve-of-execution challenge and presents a very well-developed record" from courts in Tennessee, said Amy Howe, Goldstein's partner.

There are also challenges pending in several other states, including Maryland, Missouri and Texas.

California, which has the nation's largest death row population -- 647 -- became a focal point of the debate this week when it had to halt the execution of Morales because officials said they could not comply with new requirements imposed by U.S. District Judge Jeremy Fogel of San Jose.

Fogel acted in response to legal motions filed by Morales' attorneys, who claimed that the state's execution protocol violated the 8th Amendment ban on cruel and unusual punishment. Fogel made it clear that he was not striking down lethal injections but was trying to make the state adhere to more rigorous procedures and a process that would be easier to scrutinize.

California has executed 11 people by lethal injection, with the first being William Bonin in 1996.

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