Feb. 22, 2006 -- The state of California last night indefinitely postponed the execution of Michael Morales, who was sentenced to death for the 1981 rape and murder of 17-year-old Terri Winchell, after ongoing questions about the ethics of lethal injection.
The postponement was the second in one day. On Monday night, anesthesiologists withdrew from the execution because of their concerns over the method. An hour before Morales was to be strapped to a gurney in the death chamber at San Quentin State Prison on Tuesday night, officials called off the execution, saying they could not comply with a judge's order to have a medical provider administer the fatal dose of barbiturate.
The execution was expected to take place at San Quentin at 7:30 p.m. PT after a week of legal wrangling over the method -- and after Gov. Arnold Schwarzenegger had denied him clemency.
Cruel and Unusual?
In what death penalty experts said was an unprecedented move, U.S. District Court Judge Jeremy Fogel last week ordered the state to modify California's execution procedures to ensure Morales, 46, did not suffer the extreme pain that some of the drugs could cause if he were still conscious.
Choosing among two options the judge had outlined, the state had initially planned to have two anesthesiologists present at the prison. But the physicians withdrew after an appeals court decision this week implied they might have "to personally intervene in the execution of Mr. Morales if any evidence of either pain or a return to consciousness arose." In their statement Monday, which was read by a prison spokesman, they said this "would clearly be medically unethical."
Fogel then ruled that the state could still proceed with the execution, but that it had to use barbiturates alone to put Morales to sleep -- and that the drugs had to be injected intravenously by a licensed state professional. But Vernon Crittendon, a spokesman for the prison, said the state could not find a medical professional to administer the injection.
"We were not able to find a licensed professional that was willing to inject medication intravenously, ending the life of a human being," Crittendon said Tuesday.
Rick Steinken, a lawyer who represents Morales pro bono, said state officials had made the correct decision in postponing the execution.
"Maybe they had no choice, but they did the right thing," he said.
George Kendall, a lawyer who is not involved in this case but has represented death row inmates, agreed, since Morales would have been the first inmate executed with barbiturates alone.
"No one's been through this drill," Kendall said. "Now they have the eyes of the world watching. The wise course of action was to not do this tonight. It's smart for everybody. To execute somebody you ought to know exactly what you're doing."
Cocktail of Death
Of the 38 states that have the death penalty, 37 states use lethal injection.
The first state to adopt it was Oklahoma in 1977 -- but the notion that it is painless has recently been questioned. In 2005, The Lancet medical journal published the results of a study indicating that in 43 percent of executions studied in four U.S. states (not including California), blood levels of sleep-inducing drugs were "consistent with awareness" and inmates "may have been awake" during the process.
Dr. David Lubarsky, professor and chair of the Department of Anesthesiology at the University of Miami and one of the study's co-authors, says that one of the drugs commonly used in lethal injections "by itself is extremely painful. It causes a burning, a severe burning sensation."
"If the protocols that we use today to execute human beings were offered as an option to euthanize animals, you frankly wouldn't be able to put your dog to sleep," Lubarsky said.
As in most states, California uses a cocktail of three drugs for lethal injections. The first one is a powerful narcotic, a barbiturate that renders the condemned unconscious and insensible to pain. The second one paralyzes the muscles, and the third one causes cardiac arrest.
Although Morales has accepted responsibility for the crime, his lawyers have argued in federal court that the California execution protocol does not work as intended, and poses the risk of inflicting extreme pain and a "cruel and unusual punishment," violating the Eighth Amendment of the Constitution.
Fogel said an anesthesiologist had to be present or the lethal cocktail had to be changed because in several recent executions, including that of former gang member Stanley "Tookie" Williams, the inmates were breathing up to several minutes longer than they should have after the first drug was administered.
Victim's Family Outraged
The judge recognized this didn't prove the condemned were conscious during this time. But he noted the first drug administered "should both stop breathing and cause unconsciousness within a minute" and concluded that the evidence from the state's execution logs "raises at least some doubt as to whether the protocol actually is functioning as intended."
Winchell's brother was unsympathetic.
"It's a joke. This is a way we can only hope that we go out this easily," Brian Chalk told ABC's Sacramento affiliate KXTV on Tuesday. "We can only hope to be put to sleep in a nice, controlled environment. He's got it made."
Litigation is pending in at least a dozen states on issues surrounding lethal injections, and this spring the Supreme Court will hear the case of a Florida inmate, Clarence Hill, on a technical question of access to federal courts.
None of these challenges can lead to sparing Morales -- or to eliminating the death penalty. But if successful, they might lead to changes in the way lethal injections are administered.
"It's one thing to have the death penalty, another is to have a method that gratuitously inflicts violence or torture," George Kendall said.
But proponents of the death penalty are skeptical about claims that lethal injection may be "cruel and unusual punishment."
Robert Blecker, a professor at the New York Law School, sees this litigation as nothing more than an attack on the death penalty itself.
"Abolitionists are morally opposed to the death penalty. They see it as the equivalent of murder and, seeing it that way, they feel morally obliged to do what they can to block it," he said. "This is just one more attempt."