The rul­ing from U.S. District Court Judge Jeremy Fogel (pic­tured) on Friday, December 15, appears intend­ed to spur California pub­lic offi­cials to mod­i­fy the cur­rent sys­tem of putting inmates to death. Judge Fogel’s order was not a final deci­sion, but rather a ​“Memorandum of Intended Decision: Request for Response from Defendants.” The defen­dants in this case are the cor­rec­tions offi­cials of the state, includ­ing, ulti­mate­ly, the gov­er­nor, Arnold Schwarzenegger.

Judge Fogel makes clear that ​“this case is not about whether the death penal­ty makes sense moral­ly or as a mat­ter of pol­i­cy.” It is only about whether California’s lethal-injec­tion pro­to­col ​“as actu­al­ly admin­is­tered in prac­tice” vio­lates the Eighth Amendment. After an exhaus­tive review, includ­ing a vis­it to the exe­cu­tion cham­ber in San Quentin, Judge Fogel con­clud­ed that the state’s ​“imple­men­ta­tion of lethal injec­tion is bro­ken, but it can be fixed.”

The judge makes clear that he has made every effort to allow the state to con­tin­ue with exe­cu­tions, so long as the prop­er pro­tec­tions were in place. In fact, the exe­cu­tion of Michael Morales was cleared to pro­ceed when California announced it had retained two doc­tors to super­vise the exe­cu­tion. But those doc­tors then backed out when their duties in the exe­cu­tion were more ful­ly described.

According to the Memorandum, the gov­ern­men­t’s response to the prob­lems iden­ti­fied in the exe­cu­tion process have been inad­e­quate. Instead, the state only ​“tweaked” some of the chem­i­cal aspects of the pro­to­col and then con­tend­ed that no more changes were required. This posi­tion was held despite the fact that the state’s own med­ical expert, Dr. Robert Singler, tes­ti­fied that it would be ​“ter­ri­fy­ing” and ​“uncon­scionable” to be awake and inject­ed with the con­tem­plat­ed dosage of the drugs pre­scribed in the pro­to­col.

The drugs used in lethal injec­tion would be allowed if the defen­dant was ren­dered uncon­scious. However, the judge con­clud­ed that the state’s pro­to­col ​“does not func­tion as intend­ed.” He list­ed a num­ber of defi­cien­cies includ­ing unre­li­able screen­ing of exe­cu­tion team mem­bers, a lack of mean­ing­ful train­ing and super­vi­sion of team mem­bers, and improp­er prepa­ra­tion of the anes­thet­ic.

Judge Fogel con­clud­ed that the ​“evi­dence is more than ade­quate to estab­lish a con­sti­tu­tion­al vio­la­tion” and that the state’s lack of pro­fes­sion­al­ism was ​“deeply dis­turb­ing.” The respon­si­bil­i­ty for the flaws ​“falls square­ly upon the Defendants.” He not­ed that rem­e­dy­ing this sit­u­a­tion will take time, espe­cial­ly since the state had ​“still [] not ful­filled their dis­cov­ery oblig­a­tions.” The judge not­ed that the state’s unwill­ing­ness ear­li­er to ​“see the sit­u­a­tion for what it is and to be proac­tive is self-defeat­ing.” Nevertheless, he con­clud­ed that this case ​“presents an oppor­tu­ni­ty for exec­u­tive lead­er­ship.”
(Morales v. Tilton, No. C 06 219 & 926 JF RS, U.S. Dist. Ct. for N. Dist. of Calif., Dec. 15, 2006) (Memorandum) (DPIC analy­sis, Dec. 18, 2006).

Gov. Schwarzenegger released a state­ment on December 18 say­ing that ​“My admin­is­tra­tion will take imme­di­ate action to resolve court con­cerns which have cast legal doubt on California’s pro­ce­dure for car­ry­ing out the death penal­ty.”
(L.A. Times, Dec. 18, 2006). See Lethal Injection.

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