Debra J. Saunders

The latest federal judge to rule against the constitutionality of a state's death penalty is U.S. District Judge Jeremy Fogel, who issued a ruling Friday that found California's lethal injection protocol to be "intolerable under the Constitution." Chalk up the ruling as a victory for Michael Morales, who was sentenced to death for raping and murdering 17-year-old Terri Winchell of Lodi, Calif., in 1981.

Time is on his side. The decision was not your standard slam-dunk ruling against the death penalty. Fogel was careful to note that capital punishment is constitutional and that California's three-drug execution protocol "when properly administered will provide for a constitutionally adequate level of anesthesia."

Fogel signaled that the state could implement more professional training, facilities and oversight -- he cited Virginia as a model -- for executions using the typical three-drug protocol, or that the state could administer a lethal dose of sodium pentothal only. He gave Gov. Arnold Schwarzenegger 30 days to explain how he will establish more professional practices, to which the governor already has responded.

Sounds reasonable. But in the meantime, Fogel has demonstrated to Americans that any attack on the death penalty -- no matter how bogus -- will result in years of delays, consume countless tax dollars and make a mockery of the legal system. The safest man in America is a death-row inmate with a pending appeal. The lamest arguments work.

Morales' lawyers argued that the second of the three drugs, a paralyzing agent, casts a "chemical veil" that hides an inmate's excruciating pain. Death penalty opponents often cite an article in the medical journal The Lancet that claimed it was "possible" some American death-row inmates "were fully aware during their execution."

Turns out, "chemical veil" was a made-up phrase for a faux phenomenon, while the Lancet article was based on shoddy research. California's three-drug protocol starts with an injection of sodium pentothal that is 12.5 times the amount given to patients to begin invasive surgery. An inmate could feel pain only if the death-row team grossly failed to administer that drug.

Fogel wrote, "There still is no definitive evidence that any inmate has been conscious during his execution." Fogel's legal threshold for stopping executions is apparently: no real proof.

As it is, Fogel's ruling focused on what he saw as the minimal training of death-row personnel and lack of medical monitoring to ensure that inmates are unconscious, as well as cramped death-row quarters.

Debra J. Saunders

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