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By outlawing California’s lethal injection system Friday, Judge Jeremy Fogel struck the Northern District of California’s latest blow at the California prison system for how it treats inmates. Already under close scrutiny by Senior U.S. District Judge Thelton Henderson for having a health care system that fails to keep inmates alive, the prison system, Fogel wrote, is failing to kill them in a humane manner. Fogel found that lethal injection may be unconstitutionally cruel as practiced by the state, indefinitely prolonging his February injunction on California executions. The federal case, Morales v. Tilton, 06-219, is an appeal by convicted rapist and murderer Michael Morales, who is trying to escape the death chamber with an argument that the state’s method of execution violates his Eighth Amendment rights. By staying narrowly focused on the mechanics of death, Fogel’s ruling will probably make it easier for the state to change how it administers lethal injections, rather than continue the court battle. “Defendants’ implementation of lethal injection is broken,” Fogel wrote on Friday, “but it can be fixed.” The problem, he said, is that no one in Gov. Arnold Schwarzenegger’s office seems willing to take the issue seriously. “Indeed,” Fogel wrote that after the setting of intravenous lines in the killing of Stanley “Tookie” Williams was botched last year, “the execution team members’ reaction to the problem at the Williams execution was described by one member as nothing more than ‘shit does happen, so.’” In a prepared statement Friday, Schwarzenegger’s legal affairs secretary, Andrea Lynn Hoch, said that “as the ruling provides, the administration will review the lethal injection protocol to make certain the protocol and its implementation are constitutional.” The governor, she added, “will continue to defend the death penalty and ensure the will of the people is represented throughout the ongoing court proceedings.” The decision comes days after Florida’s governor, Jeb Bush, suspended lethal injections following a botched execution last week. And last month, a federal judge in Missouri said that state’s lethal injection method was unconstitutional. Fogel’s tightly drawn opinion didn’t question lethal injection per se; instead, he said only that the state’s methods were too sloppy to ensure that inmates don’t feel excruciating pain as they die. That focus, said Carl Tobias, a professor at the University of Richmond School of Law, should withstand review by the Ninth Circuit U.S. Court of Appeals. “It seems pretty thorough and pretty careful to me, and I think the judge goes out of his way to be pretty respectful of the California executive branch,” said Tobias, who tracks the Ninth Circuit. Fogel’s call for the governor’s office to make specific changes to the execution system, Tobias said, should make it easier for the state to comply than to appeal. “I’m not sure they’re going to win at the Ninth,” he said. “It seems to me better to try to improve the prisons rather than litigate it.” Given his criticisms, Fogel would probably agree. He said the state’s execution team is barely trained and shows little concern in making sure the condemned are not painfully put to death. Fogel’s key question is whether the sedative sodium thiopental, administered at the beginning of the execution process, prevents dying inmates from feeling pain created by two subsequent drugs. He says no, due mainly to state officials’ lax protocols in administering it. While the sedative would work well if properly administered, Fogel wrote, discovery has cast doubt on every aspect of the process. In addition to the lack of training and poor record-keeping, he criticized the selection of executioners. “For example,” he wrote, “one former execution team leader, who was responsible for the custody of sodium thiopental (which in smaller doses is a pleasurable and addictive controlled substance), was disciplined for smuggling illegal drugs into San Quentin.” Also troubling, he wrote, is that in some executions, not all the barbiturate was administered. Combined with what Fogel called “an extremely troubling absence of reliable documentation as to the disposition of sodium thiopental taken from the prison pharmacy by execution members,” the opinion raises questions of who’s watching the cache. “These circumstances may warrant investigation by an appropriate law enforcement agency,” he wrote. In all, poor implementation of the basic death protocol known as OP 770, Fogel said, means that in at least six recent cases, inmates may have been conscious as painful drugs were administered. “Given that the state is taking a human life, the pervasive lack of professionalism in the implementation of OP 770 at the very least is deeply disturbing,” he wrote.

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