US: Debate in the US about capital punishment is gathering momentum, following the deferral of Michael Morales' execution for reasons of medical ethics, writes Henry Weinstein, in Los Angeles
By halting the execution of convicted murderer Michael Morales this week, California finds itself at the forefront of a growing debate about whether being put to death by lethal injection is more humane than other methods, or in reality masks a painful end.
The question is likely to intensify in the coming months as the US Supreme Court considers the issue and California re-examines its procedure after a federal judge said the method had to be modified because of concerns he had after reviewing evidence of recent executions.
More than 840 people across the US have been executed by lethal injection in the last 30 years, but the issue of whether it violates the constitutional prohibition against cruel and unusual punishment has only recently come to the fore.
Death penalty opponents such as Los Angeles lawyer Stephen Rhode said the debate signals a critical moment in the history of capital punishment.
"They are hitting the wall in the futile search for a humane death penalty," said Rhode, who is vice-president of Death Penalty Focus, which spearheads opposition to capital punishment in California.
Most legal analysts doubt, however, that the Supreme Court will conclude that lethal injection violates the constitutional ban. But even advocates of the death penalty think that states may be required to change their procedures.
California "is legitimately criticised for not doing enough homework on the protocol", which calls for a three-drug cocktail of a sedative, a paralytic agent and a heart-stopping chemical, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento.
The protocol was first adopted in Oklahoma in 1977, and "states just seem to copy [ it] without much scientific back-up for what they adopted", he said.
Scheidegger, whose organisation actively defends capital punishment in major court cases, said two events in the last year have given the issue momentum: an article in a medical journal and action by the Supreme Court.
In April, the British medical journal Lancet published an article saying lethal injection, employed by 37 US states as presumably painless, may inflict unnecessary suffering because of a routine failure to use enough anaesthesia, according to a study of autopsies of executed inmates.
That article gave ammunition to defence lawyers seeking to challenge the practice of administering lethal injections. Then, in recent months, the Supreme Court agreed to stay two executions in Florida until it resolved the question of whether death-row inmates can bring last-minute civil rights challenges that execution by lethal injection is cruel and unusual. Those cases are not a direct challenge to Florida's execution procedure, but the Supreme Court's action prompted immediate reaction from Governor Jeb Bush.
Earlier this month, Bush said he would not sign any more execution warrants until the issue was resolved. "We don't know why the Supreme Court's done what it's done, so the uncertainty probably does create a need to wait," he said.
In mid-February, a team of lawyers asked the High Court to review a Tennessee Supreme Court decision that upheld the constitutionality of the state's lethal injection protocol, which is similar to California's.
In particular, the attorneys representing condemned inmate Abu-Ali Abdur'Rahman assert that the use of the drug Pavulon (also known as pancuronium bromide) is unconstitutional, because of the risk that it will result in their client suffering inhumane pain.
It is not clear whether the Supreme Court will take the case. But Abdur'Rahman's lawyers, who have mounted a carefully formulated challenge to the Tennessee law, are hopeful. There are also challenges pending in several other states, including Maryland, Missouri and Texas.
California, which has the nation's largest death row population - 647 - became a focal point of the debate this week when it had to halt the execution of Morales because officials said they could not comply with new requirements imposed by US district judge Jeremy Fogel of San José.
Fogel acted in response to legal motions filed by Morales' attorneys, who claimed that the state's execution protocol violated the Eighth Amendment ban on cruel and unusual punishment. Fogel made it clear that he was not striking down lethal injections but was trying to make the state adhere to more rigorous procedures and a process that would be easier to scrutinise.
California has executed 11 people by lethal injection, with the first being William Bonin in 1996.
By "tinkering with the machinery of death", Fogel may have a significant impact on how the state conducts executions and perhaps on the death penalty itself, said Frank Zimring, a law professor in University of California, Berkeley, who is also author of the 2003 book The Contradictions of American Capital Punishment.
Until recently, he said, California, like most other states, had "insulated the lethal injection process from the need for medical involvement in a way that meant doctors' reservations about participation would not get in the way of the process".
But Fogel said the state either had to have an anaesthesiologist monitor the execution or use a different drug regimen. Two anaesthesiologists initially agreed to participate but then baulked, saying it would violate their medical ethics. Then, on Tuesday evening, a spokesman at San Quentin said the state had not been able "to find any medical professionals willing to inject medication intravenously, ending the life of a human being".
Consequently, Morales' execution was stayed and Fogel will preside over a full evidentiary hearing on the state's execution procedures in May.
Whatever way he rules, appeals - followed by intense scrutiny of any new method that is adopted - seem likely.
- (LA Times-Washington Post service)