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.
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.
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.