February 23, 2006
U.S. District Judge Jeremy Fogel tried to find a commonsense way
of addressing defense lawyers' arguments that convicted rapist-murderer
Michael Morales might feel pain during his execution -- scheduled
for Feb. 21, but now postponed. He tried to do the right thing,
and for that Fogel got snookered.
got snookered, too. The state switched to lethal injection in
1996 in order to make executions as painless as possible. Now
defense lawyers have used that goal to postpone the execution
of a man -- who raped, bludgeoned, strangled and knifed 17-year-old
Terri Winchell -- because he might conceivably feel pain after
being injected with the first of the three drugs used according
to the state's execution protocol.
a study published in the Lancet found that 43 in 49 executed inmates
may not have had sufficient drugs in their system to ensure unconsciousness
when they were injected with other drugs that could cause pain
to the conscious. (Critics question the results as the blood work
often was done hours after the execution.) Morales' attorneys
argued that some condemned California inmates may have felt pain
because they breathed longer than an expert expected and witnesses
saw some inmates' bodies move after the first injection.
that the court understood that "over 99.999999999999"
percent of the population would be rendered unconscious within
a minute of a properly administered shot of sodium pentothal.
That should mean: case closed. Morales will have to take his chances.
in order to spare Morales any possibility of pain, Fogel told
the state to have a doctor present in order to make sure Morales
was unconscious before prison staff injected the other drugs.
The state also had the option of administering a shot of sodium
pentothal only -- it would take longer, and Fogel added that only
a licensed professional could administer the final needle.
Fogel made the huge mistake of ordering that doctors participate
in executions. No surprise, two volunteer anesthesiologists backed
out on execution eve. Their careers would have been toast if their
names got out. And frankly, doctors should not and need not be
involved in an execution. (If killing people required professional
skills, death row would not be full.)
of state Attorney General Bill Lockyer's office put it succinctly:
"The goal here for death penalty opponents is to say that
the only way to conduct executions is to have medical professionals
do it, and then rely on the medical community to ensure that no
medical professionals could ever do it, with the hope that it
will spell the end of the death penalty."
was the goal, then it worked. The state was forced to postpone
an execution ordered for a murder committed 25 years ago and a
death sentence issued 23 years ago. At San Quentin prison, justice
delayed is the only justice -- as Terri Winchell's family can
hold hearings on the issue in May. Lance Lindsey of Death Penalty
Focus, which opposes capital punishment, supported the Morales
defense tactics. "It's not gamesmanship, honestly,"
Lindsey told me. "Defense lawyers fight like hell for their
client" -- and they should fight to make sure that Morales
gets the right amount of drugs needed.
also will be the first to tell you that he opposes everything
about the death penalty. He sees it as uncivilized, and if the
courts and doctors find a way to sabotage capital punishment,
he'll be happy.
might win. Clearly, the court has given up on common sense, as
it strains for executions without suffering. You can't take the
punishment out of capital punishment.
this is an execution. While the state has sought to execute murderers
without inflicting unnecessary pain, the idea is to take his life.
Unpleasantness is part of the package.
The guy who is being executed is not supposed to like it. I hope
he doesn't suffer, but if he does, it shouldn't be for long. If
judges don't understand that, this country is doomed. After all,
if executions are guaranteed to be painless, why not apply that
standard to prison sentences?
It is a
sure sign of a society's decline when the governing elite care
more about how things are done than what they do. The death penalty
is supposed to mean this -- that at the execution, there is a
100 percent chance the convicted killer dies. On Tuesday, the
more salient issue was the .000000000001 chance that he might
not feel good dying.
2006 Creators Syndicate