JUDGE ISSUES ULTIMATUM TO STATE ON EXECUTIONS
Saturday, December 16, 2006
He sets 30-day deadline for officials to agree to change lethal injection -- or he'll declare it unconstitutional
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Lethal injections in California are conducted so haphazardly, by poorly trained staff in chaotic conditions, that they could cause slow and agonizing death, a federal judge said Friday in threatening to declare the state's method of capital punishment unconstitutional.
But U.S. District Judge Jeremy Fogel, who put all executions in California on hold earlier this year, said the problems could be corrected. He gave state officials 30 days to decide whether they will revise lethal-injection procedures and to say how long they would need. Officials said they would take steps to comply.
Fogel's ruling prolongs the stay of execution he issued in February for Michael Morales of Stockton, who was convicted of raping and fatally beating 17-year-old Terri Winchell near Lodi in 1981. That stay and a moratorium on other executions will remain in effect well into 2007 while officials try to make changes to satisfy the judge.
The lethal-injection procedures used at San Quentin State Prison since 1996 pose "an undue and unnecessary risk of an Eighth Amendment violation,'' Fogel said, referring to the constitutional ban on cruel and unusual punishment.
Fogel said he would declare the state's lethal-injection system unconstitutional if it is not changed. But he stressed that he was condemning neither capital punishment nor lethal injection itself, which is the exclusive or preferred method of execution in all of the 38 death-penalty states except Nebraska, which uses the electric chair.
"The use of lethal injection in executions represents an evolution from earlier methods such as hanging, electrocution and lethal gas that now are viewed by most jurisdictions as unduly harsh,'' Fogel said. He observed that, when properly administered, lethal injection "results in a death that is far kinder than that suffered by the victims of capital crimes.''
The state's "implementation of lethal injection is broken, but it can be fixed,'' Fogel said.
Gov. Arnold Schwarzenegger's office indicated that the state would try to do so.
"As the ruling provides, the administration will review the lethal-injection protocol to make certain the protocol and its implementation are constitutional,'' Schwarzenegger's legal affairs secretary, Andrea Hoch, said in a statement.
Fogel's ruling could have national ramifications at a time when other states are facing challenges to their lethal-injection procedures.
Florida Gov. Jeb Bush suspended death warrants in his state Friday at least until March 1 while a state commission reviews what went wrong with a lethal injection this week. Prison staffers failed to insert needles properly into the veins of condemned murderer Angel Nieves Diaz, who was given a second dose of lethal chemicals and took 34 minutes to die.
A federal judge in Missouri ordered a halt to executions there in October unless the state improves monitoring and supervision of its procedures; state officials have appealed the ruling. A Kentucky judge ruled last month that the state had not adopted its execution procedures properly.
Fogel's ruling followed four days of testimony by execution witnesses and medical experts in his San Jose court in September, the first such hearing in the nation. The judge also visited San Quentin in March and inspected the execution chamber and apparatus.
California and virtually every other state with lethal injections use a sequence of three drugs: the sedative sodium pentothal, to cause unconsciousness; the paralytic pancuronium bromide, to halt breathing; and potassium chloride, to stop the heart.
Fogel said records in seven of California's lethal injection executions indicated that the prisoners might have been conscious, despite the initial dose of sodium pentothal, when the other two drugs were injected.
Medical experts told the judge that pancuronium bromide, in a conscious person, would cause a smothering sensation while leaving the prisoner unable to cry out or move, and potassium chloride would cause excruciating, burning pain.
Fogel said that "the systematic flaws in the implementation of the procedure make it impossible to determine with any degree of certainty'' whether executed inmates were unconscious just before death, or whether the state's anesthesia procedures would guarantee that inmates in future executions would not suffer.
Fogel initially ordered the state to have a doctor present to monitor Morales' level of consciousness during his scheduled execution in February, and he issued his stay after officials were unable to find any physicians willing to participate.
But the judge said Friday that a doctor did not have to be present because other methods are available to monitor consciousness. That was an important conclusion, because professional associations have decreed that any participation by doctors in executions is unethical.
After Fogel's February order, California prison officials changed their procedures to include a continuous flow of sodium pentothal in one of the prisoner's arms to keep him unconscious while the second and third drugs are injected in the other arm.
In Friday's ruling, Fogel said the three-drug sequence, when properly administered, would provide for "a constitutionally adequate level of anesthesia'' and that executing an inmate with a lethal dose of sodium pentothal also would be constitutional.
But he said the state's current procedures suffer from "a number of critical deficiencies.''
Members of the execution team are not properly screened, he said. Fogel noted that one former execution team leader once had been disciplined for smuggling illegal drugs into the prison, and another leader previously had been diagnosed with post-traumatic stress disorder.
Execution team members "almost uniformly have no knowledge'' about the drugs they are injecting or the problems that might arise, the judge said. He said team members' "admitted failure to follow the simple directions provided by the manufacturer'' of sodium pentothal made it difficult to determine whether prisoners were properly anesthetized.
Dim lighting, overcrowded conditions and poorly designed facilities also interfere with monitoring of the execution, Fogel said. He said execution team members can't hear any sounds from the sealed execution chamber and can't see the inmate well enough to determine whether he is conscious.
All those flaws "appear to be correctable,'' the judge said.
Fogel was appointed to the federal bench by President Bill Clinton in 1998 after 17 years as a Santa Clara County judge. He is generally regarded as liberal in philosophy but moderate in his judicial approach.
Friday's ruling was "very cautious, very restrained, very much in keeping with Fogel's style,'' said Santa Clara University Law Professor Gerald Uelmen. He said the state is likely to find a solution much more quickly with the leeway provided in Friday's ruling than if Fogel had simply declared the procedures unconstitutional and invited an appeal.
Bill Hing, a UC Davis law professor, said Fogel's ruling was bound to be noticed nationwide.
"If it's going to be done, he's insisting on a method that is more efficient,'' Hing said. "I believe the states are going to recognize that they've got to figure out a better way to do this.''
Stefanie Foucher, program director of the anti-capital-punishment group Death Penalty Focus in San Francisco, said Fogel's ruling was an important but incomplete statement.
"The judge admitted that implementation of lethal injection is broken,'' she said. "We would take that even farther and say the entire death-penalty system in California is broken. We don't believe it is making the public any safer.''
Barbara Christian, the mother of Winchell, Morales' victim, hopes the state complies with Fogel's order so Morales can be executed as soon as possible, said Gloria Allred, a lawyer for Christian.
"It's been a terrible ordeal for 26 years,'' Allred said. "That's longer than Terri lived on the face of this earth.''
Execution methods
During the last 30 years, 84 percent of all U.S. executions have been by lethal injection.
Executions since 1976
887 Lethal injection
153 Electrocution
16 Other*
*11 Gas chamber, 3 hanging and 2 firing squad
Source: Death Penalty Information Center
Associated Press
Chronicle staff writers Mark Martin and Sabin Russell contributed to this report. E-mail Bob Egelko at begelko@sfchronicle.com.
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