Federal District Court Judge Jeremy Fogel is expect­ed to rule soon on a chal­lenge to the lethal injec­tion process in California, the state with the largest death row in the coun­try. Extensive hear­ings with nation­al experts were con­duct­ed ear­li­er in the year and some tes­ti­mo­ny raised seri­ous con­cerns about the super­vi­sion and reli­a­bil­i­ty of the exe­cu­tion process. Final respons­es to Judge Fogel’s sup­ple­men­tary ques­tions after the close of the hear­ings were due on November 9. Among the issues that the judge request­ed addi­tion­al brief­ing on were:

  • What steps should the state take to mon­i­tor inmates’ lev­els of uncon­scious­ness pri­or to and fol­low­ing injec­tion of the drugs present­ly used in California?
  • Would the reli­a­bil­i­ty of the pro­to­col be improved by the use of a BIS mon­i­tor or an EEG?
  • Is the involve­ment of med­ical pro­fes­sion­als nec­es­sary, and if so, what type(s) of med­ical pro­fes­sion­als should be involved in what ways?
  • What would be the advan­tages and dis­ad­van­tages of elim­i­nat­ing pan­curo­ni­um bro­mide (the sec­ond drug that par­a­lyzes the inmate’s mus­cles, there­by mask­ing pos­si­ble evi­dence of pain) from the protocol?
  • What would be the advan­tages and dis­ad­van­tages of an exe­cu­tion pro­to­col that achieves its pur­pose by using one or more seda­tives, such as sodi­um thiopen­tal or pen­to­bar­bi­tal, with or with­out a nar­cot­ic, and elim­i­nates the oth­er two drugs that cur­rent­ly are used?

(See Morales v. Tilton, Request for Briefing, U.S. Dist. Ct. for N. Dist. of CA, Oct. 3, 2006).

The civ­il rights chal­lenge to the lethal injec­tion process was brought by Michael Morales, whose exe­cu­tion in February was halt­ed at the 11th hour when doc­tors engaged by the state refused to par­tic­i­pate in the process. Morales has claimed that California’s present process risks excru­ci­at­ing and unnec­es­sary pain, and is thus a vio­la­tion of the ban on cru­el and unusu­al pun­ish­ments. Individual exe­cu­tions have also been stayed in Maryland, Missouri, South Dakota, New Jersey, Delaware and Arkansas because of chal­lenges to lethal injec­tion.
(DPIC, post­ed Nov. 13, 2006). See DPIC’s Lethal Injection. See also DPIC’s Press Release; and Boalt School of Law’s Legal Resources on Lethal Injection.

Citation Guide