The rub: Any focus on training and monitoring to attain painless executions invites more appeals based on two grounds. One, California stipulates that the death penalty involve lethal injection, and any injection presents the remote possibility of human error. Two, while Fogel writes that medical personnel do not have to be involved in executions, his call for better monitoring is likely to lead to a requirement of a doctor's involvement.
"Getting a doctor would be very difficult if not impossible," Senior Assistant Attorney General Dane Gillette noted. No lie. Death-penalty opponent Lance Lindsey sees a conundrum: "If you're administering drugs in a professional way that the court is requiring, you may need to have medical professionals in the process. But the whole reason of having the medical professions is to save lives."
"I think momentum is on our side," Lindsey told me. He may be right. It is difficult to defend the death penalty when ludicrous appeals, even if they fail, succeed in delaying executions already decades overdue. Lindsey also said, "We have a criminal-justice system that can incarcerate people for life and keep us safe." There, I cannot agree. As soon as the criminal lobby defeats the death penalty, it will turn on life sentences. If the same arguments prevail, cold killers will go free.
After all, life without parole is a cruel sentence -- even if violent crimes warrant life behind bars. If lethal injection might conceivably cause pain, imagine the pain associated with removal from one's children and conjugal visits, not to mention the psychic pain that comes with not having control of your life. If the "no definitive evidence" threshold carries the day, more killers can be victims, and the courts can be their saviors.