http://www.nytimes.com/2011/02/11/opinion/11fri2.html?_r=1&nl=todaysheadlines&emc=tha211

 

February 10, 2011

Judge Fogel and the Death Penalty

On Tuesday, Judge Jeremy Fogel of the Federal District Court in northern California toured a new facility at San Quentin State Prison for executing inmates. Five years ago, in Morales v. Tilton, he ordered the state to halt all executions after he found that the way it administered its lethal injection created too much risk that an inmate would suffer extreme pain.

The inspection was part of his review of a proposed new method for injecting those drugs to assess whether he should allow California to resume executions.

Judge Fogel stressed in his 2006 opinion that, in focusing on the administration of the lethal three-drug cocktail, “this case presents a very narrow question.” But that question cannot be answered unless the judge also asks the state why it believes that one of the drugs, sodium thiopental, is reliable.

After the sole American manufacturer stopped producing sodium thiopental, California imported it from Britain without Food and Drug Administration approval. The agency said that it would not review the drug’s efficacy because “reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of F.D.A.’s explicit public health role.”

Judge Fogel’s doubts about California’s use of the death penalty are comparatively recent. He rejected two other challenges to lethal injections as delaying tactics. In 2006, however, he stayed the execution of Michael Angelo Morales after the state failed to comply with his order that the injection be administered by a state-licensed medical professional.

Soon after, he began his own review of the execution method. One of his pivotal findings was that, in six of California’s 11 executions by injection, the “inmates’ breathing may not have ceased as expected” and they may well have been conscious when other drugs were given to paralyze and kill them. The state’s medical expert said that would be “terrifying” for someone being injected and “unconscionable.”

In an essay about this case, Judge Fogel was punctilious about not saying whether he supports or opposes the death penalty. Instead, he expressed faith in the legal process as a means of fairly resolving even the most difficult issues.

For legislators in state capitols considering whether to abolish the penalty, however, this case has done much more than that. It has documented how lethal injection can be cruel and unusual punishment when unprofessionally administered and how the culture of prisons breeds that shoddy approach. It is one more reason to reject the death penalty as a barbaric punishment.

© 2011 The New York Times Company