Executions Unlikely for Rest of Year

A legal challenge to California’s lethal injection executions has been delayed until mid-September, making it highly likely there will be no more inmates put to death by the state for the remainder of this year and possibly longer.

The immediate consequence of the delay, ordered Thursday by U.S. District Judge Jeremy Fogel in San Jose, is that Michael A. Morales, who originally was scheduled for execution in February for the 1981 murder of Lodi teenager Terri Winchell, has at least several more months to live. The hearing on Morales’ challenge to lethal injection originally had been set for next month.

Whichever way Fogel eventually rules on the challenge, an appeal is a virtual certainty, which makes it likely that there will no more executions until 2007 at the earliest, according to UC Berkeley law professor Frank Zimring, an expert on capital punishment.

“I think the smart money at this point would bet against any more executions in California in 2006, and I think it goes beyond that,” Zimring said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-capital punishment group in Sacramento, conceded it was “quite possible” there would be no more executions this year.

Morales, and other inmates across the country, have challenged lethal injection for possibly causing excessive pain to inmates. Critics say the first drug in the three-stage lethal injection protocol, a sedative, often fails to anesthetize the inmate, especially in the hands of untrained prison personnel.

Meanwhile, the second drug, a paralytic, immobilizes the inmate so he cannot display symptoms of the intense pain he experiences when the third, heart-stopping drug is administered, they say.

Fogel in February ordered the state to either alter the drug regimen or to furnish trained medical personnel to make sure Morales was unconscious when he was executed. Bound by the canon of medical ethics forbidding participation in killings, however, several anesthesiologists backed out of the procedure, and the execution was canceled.

The hearing reset for Sept. 19 will consider whether the state’s procedures must be altered to meet constitutional muster. Morales’ attorneys contend that the procedures put him at unacceptable risk of suffering excruciating pain, thus violating the constitutional ban against cruel and unusual punishment.

In another significant development, a ranking official of the California attorney general’s office said Thursday that the state is “seriously considering” the use of a machine that officials say could help monitor a condemned inmate’s level of consciousness during the execution procedure.

The machine, known as a bispectral index monitor, was first used in an execution last week in North Carolina in an attempt to make sure a condemned man was thoroughly sedated before the lethal drugs were administered. Attorneys for condemned inmate Willie Brown Jr., leading anesthesiologists and the company that made the machine had objected that it could not serve that purpose unless it was monitored by trained medical personnel. A federal appeals court upheld use of the machine in a sharply divided 2-1 opinion.

Dane Gillette, of the California attorney general’s office, said California is now giving serious consideration to use of the machine. “Many states are, I am certain,” he said in a phone interview.

Lethal injection is the predominant method of execution across the country, in use in 37 of the 38 death penalty states. In the past year, however, executions have been stayed in California, Florida, Maryland and Missouri because of litigation over the pain issue. If California seeks to use the bispectral index monitor, it will undoubtedly precipitate further litigation.

North Carolina introduced the machine earlier this month in an effort to meet the concerns of U.S. District Judge Malcolm J. Howard that inadequate anesthesia prior to execution would make condemned inmate Brown “suffer excruciating pain.” The judge concluded that the machine could ensure that Brown was totally unconscious before the second and third drugs were administered. A federal appeals court upheld Howard’s decision, without explanation.

But Judge J. Blane Michael issued a blistering dissent, saying that the finding that the bispectral index monitor alone could accurately verify Brown’s level of consciousness was “contrary to the clear weight of the evidence.”

Michael emphasized that the American Society of Anesthesiologists and the American Assn. of Nurse Anesthetists have promulgated standards advising against the use of such a machine “in isolation without other monitoring methods or interpretations by personnel with appropriate training in anesthesia.”

The pitched battle that has emerged over lethal injection in recent months has reshaped the contours of the death penalty debate in California and across the country.

Early this year, both death penalty proponents and foes had said they thought Morales’ execution would be part of a stepped-up pace of executions as the state, having withstood numerous legal attacks, moved to reduce the size of its crowded death row -- by far the nation’s largest, with 645 condemned inmates. California has had only 13 executions since reinstating capital punishment in 1977.

But after the executions of Stanley Tookie Williams in December and Clarence Ray Allen in January, the prospect of several executions this year dimmed because of questions about the lethal injection method.

On Wednesday, the U.S. Supreme Court heard a case from Florida that could affect California’s executions. Attorneys for inmate Clarence E. Hill contend that Florida’s lethal injection procedure, virtually identical to California’s, places Hill at risk of “wanton and gratuitous pain,” in violation of the 8th Amendment, basically the same argument Morales’ lawyers have raised.

Their challenge, however, turns on the procedural issue of whether such an objection can be raised through a civil rights suit.

A federal appeals court in San Francisco ruled years ago that it was possible to challenge a method of execution through a civil rights case. However, Gillette, of the California attorney general’s office, said if Florida prevails against Hill, California officials will ask Judge Fogel to dismiss Morales’ suit.

Ohio State University law professor Douglas Berman, who has been following the lethal injection cases closely, said he was not sure how the Supreme Court would rule in the Hill case. However, he said, “I would be shocked if the Supreme Court said it was impossible” for a condemned inmate to challenge lethal injection.