The Big Needle Stops Dripping

By Andrew Cohen

Special to washingtonopost.com

Tuesday, December 19, 2006; 2:29 PM

Good enough for government work," it turns out, simply isn't good enough under the Constitution when it comes to the manner in which lethal injections are carried out from sea (Florida) to shining sea (California) across the country. Last week, the deadly procedure that is supposed to be clinical (but is too often imprecise) took two more blows -- one from a judge and one from a popular governor. It is not too hyperbolic to say that we have seen the end of lethal injection as we have known it.

Or not known it. I'm sure that the vast majority of the people who actually took the time to read U.S. District Judge Jeremy Fogel's relatively short ruling Friday in Morales v. Tilton learned for the first time not just how shoddy death penalty procedures are but how stubborn prison officials and state attorneys have been in refusing to fix them short of an explicit court order to do so. They've known, or should have known, these bureaucrats, that they needed to do much, much better when carrying out society's ultimate punishment. And until now they have done nothing-- with a sneer.

Nowhere is this unconstitutionally cavalier attitude more apparent than what occurred in California after the execution last year of Stanley "Tookie" Williams. As Judge Fogel recounted in his order, when questions were asked of the "execution team" because it failed to adequately set an intravenous line into Williams, one team member said simply: "shit happens." Indeed, Judge Fogel noted that one of the prison wardens named as a defendant in the Morales case "testified that he believes that a 'successful execution' is simply one where 'the inmate ends up dead at the end of the process.'" Judge Fogel's decision states, politely but emphatically, that a successful execution needs to also mean a death that is not cruel or unusual.

There were plenty of reasons why the federal judge decided to block California's death penalty procedures until state officials can get their collective act together. He listed them, one after another, from "inconsistent and unreliable screening of execution team members" to "a lack of meaningful training, supervision, and oversight of the execution team" to "inconsistent and unreliable record-keeping" to "improper mixing, preparation, and administration of sodium thiopental by the execution team" to "inadequate lighting, overcrowded conditions, and poorly designed facilities in which the execution team must work."

There were, the judge found, "anomalies in six execution logs" from California's death row that "raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected." The whole purpose of lethal injection, of course, is to ensure that the inmates are not conscious -- to the extent legally and medically possible-- when their veins are filled with poison. But a "pervasive lack of professionalism" in California has brought that into such doubt that the Judge Fogel called the whole process "at the very least... deeply disturbing."

I'm betting that the relatives of a fellow named Angel Nieves Diaz are a little more than "deeply disturbed" with the sort of "professionalism" offered by Florida prison officials last week. Diaz, a murderer, died a grisly death at the hands of the government when the folks administering his cocktail of potent drugs missed his intended vein and sent the deadly potions into his soft-tissue. Diaz had to be given a second round of injections before he was finally pronounced dead. Prison officials immediately said that they wanted to wait for the autopsy before speculating whether Diaz suffered before he died. There was no need to wait. You and I both know that our government, in our name, needlessly made Diaz suffered before drawing his last breath.

And so, apparently, does Florida Governor Jeb Bush, who typically trails no one in his zealous support of capital punishment. On Friday, Gov. Bush created a commission to study the state's lethal injections procedures (which have been challenged before in court) and at the same time declared that no additional death warrants would be issued until the commission reported its findings. Here, for the record, is how politicians and government lawyers lamely whitewash the Diaz Commission's mandate: "WHEREAS, the findings in the autopsy report... regarding Angel Diaz... indicate that the lethal injection protocols may need to be reviewed [my italics] to determine if any additional protocols should be added or whether any existing protocols should be modified in any way..."

Memo to Florida officials: Save your time and effort and money. Do not reinvent the wheel. Read and absorb the transcript of the lengthy and painstaking evidentiary hearing conducted earlier this year by Judge Fogel in the California case. And then implement the same changes that the judge has ordered California officials to implement before he will again allow executions in that state. It's clear what happened to Diaz. People who have no business executing someone were in charge of executing someone. And those people will screw up again if they are allowed to persist without proper oversight and regulation.

Golden State officials, too, would be wise to spend their energy now on implementing the judge's recommendations rather than continuing to fight this losing battle out in the federal appeals court system. After Diaz, and after California's lethal injection protocols have been laid bare by Judge Fogel's withering scrutiny, there is nothing left in law or equity to defend about those protocols. The fastest way to gear up the death penalty machine in both places (if that's the goal) is for these officials to accept responsibility for how bad things have gotten, fix the problems, and come back with new procedures that do not violate the "cruel and unusual" punishment clause of the 8th Amendment to the Constitution. Governor Schwarzenegger suggested as much on Monday and that's a good thing.

Meanwhile, the anti-injection beat rolls on. The Maryland Court of Appeals today chimed into the debate by telling prison officials that they may not proceed to execute Vernon Evans, Jr. until state injection protocols are reviewed and determined to be in compliance with state law. Did the California ruling beget the Maryland ruling? Perhaps not directly. But you can be sure that the Maryland judges were buoyed by Judge Fogel's ruling last week and also alarmed by what they saw happen to Angel Diaz. And this is how the law gets made, or interpreted, with one court becoming convinced of the rationale used by another court.

None of this is rocket science. It is not a matter of weighty legal theory. It is a matter of common sense. It is a matter of ensuring that executions are not carried out by people with a "shit happens" attitude. Surely even for our government that should not be an insurmountable task.

Andrew Cohen writes Bench Conference and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here.