Battle in Courts Over Execution by Lethal Injection

by Rebecca Doran / October issue of Socialist Action Newspaper

Lethal injection as the method of executing California’s condemned prison population went on trial in September in the San Jose U.S. District Courtroom of Judge Jeremy Fogel.

Judge Fogel conducted a four-day hearing on a legal challenge filed by San Quentin Prison death-row inmate Michael Morales, who argues that the method of lethal injection used by the prison violates the Constitution’s ban on cruel and unusual punishment.

The hearings stemmed from a legal drama that had unfolded in February at San Quentin when Morales’ defense team filed a last-minute appeal with Judge Fogel to halt the scheduled execution based on the level of pain the current method of lethal injection is likely to cause. The judge responded by ordering the prison to recruit two anesthesiologists to participate in the execution to assure Morales would remain sedated while the lethal chemicals coursed their way through his veins to paralyze his lungs and induce a massive heart attack.

However, by the time Morales’ death warrant expired, the prison had failed to secure medical professionals to participate in the state-sponsored murder. Morales was sent back to his cell on death row, and Judge Fogel issued a decision that put executions in California on hold until a hearing could be held in his courtroom to argue the merits of Morales’ appeal.

The botched Dec. 13, 2005, execution of Stanley Tookie Williams was cited in Morales’ appeal as an example of how the current execution protocol leaves the bumbling execution team at San Quentin ill-equipped to carry out an execution without putting the state’s victim through excruciating pain.

In the hearings an anesthesiologist testified that in San Quentin’s logs, doctors in more than half the executions had reported that the condemned inmate appeared to be breathing after being given the sedative that is supposed to stop respiration. According to the anesthesiologist, if a person is breathing that noticeably, they cannot be in a deep state of anesthesia, and may even be conscious, although one chemical in the lethal cocktail paralyzes the condemned, leaving she or he unable to call out.

Representatives for the state denied these claims, advancing the sadistic argument that since the defense cannot wholly prove that any victim of lethal injection at San Quentin has felt pain, the method of execution should not be challenged.The state also argued that the U.S. Constitution does not guarantee inmates a painless execution but one free of “severe degrees of pain.”

In hopes to appease Judge Fogel’s concerns on the subject of lethal injection, however, the state introduced a revised execution protocol, which offers the reader a glimpse into the bureaucratic business of government-sponsored murder. The new protocol gives instruction on everything from how far to keep open the trap door in the execution chamber drain to how many pairs of underwear the condemned should have access to in his or her last hour.

Judge Fogel wrapped up the four-day hearings and informed the court that he hoped to have a decision by early November. It is almost certain that any decision by Fogel will be appealed to the 9th Circuit Court of Appeals; however, it is unclear if executions will remain on hold while the case is pending decision in the higher courts.

A similar challenge to California’s case against lethal injection was ended in September when the state of Florida executed Clarence Hill. In January, Hill was strapped to the gurney with needles in his veins for two excruciating hours while authorities awaited a decision from the U.S. Supreme Court that would halt the execution.

When the stay of execution was granted, executioners pulled the needles from Hill’s arm and mopped the blood that sprang from his veins. Hill was sent back to his cell on death row, and the high court issued a decision that would allow Hill to file an 8th Amendment claim against cruel and unusual punishment.

However, when Hill filed his claim, a district court in Tallahassee Fla., refused to hear the case, ruling that Hill had filed too late. Following that ruling, Hill’s execution by lethal injection was rushed through on Sept. 20, keeping the state of Florida out of a court battle on the issue of civil rights.

Walls and gates may keep from our view the growing legions of America’s worst victims of capitalism, but the representatives of state-sponsored murder have unintentionally offered the world a glimpse into the nightmare of America’s execution chambers and concrete cages.

Abolitionists should use this opportunity to reach out to the growing number of working people who are expressing outrage at the so-called criminal justice system. The movement against the death penalty will spill over into other movements as new activists begin to tie together the need for never-ending war and the profit-driven business of imprisonment and executions.

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