- The Washington Times - Wednesday, March 1, 2006

Michael Morales should already be dead.

Instead, the death-row inmate waits to appear before a California judge who will decide if the state’s lethal-injection laws constitute “cruel and unusual punishment.”

“[California] will have to decide, is this a risky process? Does it cause pain? Are there alternatives?” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. “I don’t see any chance of this case ending the death penalty. But it does raise certain life issues that could affect the larger death-penalty debate.”

Morales, 46, was convicted in 1981 of the rape and murder of 17-year-old Terri Winchell. After his confession, Morales was scheduled to be executed by lethal injection on Feb. 21. His execution was to be the third, and last, planned for this year in California.

However, both anesthesiologists scheduled for the execution refused to take part, citing ethical concerns about their role, thus causing Morales’ execution to be postponed by one day. A California court then ordered a qualified medical specialist to directly administer a lethal dose of sodium thiopental to Morales, but no doctor would agree to take part and the execution has now been put on hold indefinitely.

U.S. District Judge Jeremy Fogel has ordered a hearing for May to determine if Morales can be executed in a manner that does not violate his Eighth Amendment rights.

Judge Fogel rejects criticism that his order is an attempt to undermine California’s capital-punishment laws. “I most definitely am not a judicial activist,” Judge Fogel told the San Jose Mercury News this week. Concerning the death penalty, Judge Fogel also told the newspaper, “My feeling is that it’s constitutional. Until the Supreme Court says otherwise, it’s the law, and my job is to enforce the law.”

Thirty-seven of the 38 states that administer capital punishment rely on lethal injection. “I think a lot of states were simply following the protocol of other states. I don’t think most of them have done an exhaustive search of what this process involves,” said Richard Steinken, attorney for Morales.

“I don’t think this will be the end of the death penalty, but it might be the start of a larger examination of the issue as a whole,” added Stefanie Faucher, program director of the anti-death penalty organization Death Penalty Focus.

“This case will almost certainly make it to the Ninth Circuit [Court of Appeals]. I think at some point, the Supreme Court will take a case on this topic,” Mr. Deiter said.

Mr. Steinken agreed. “If this case causes the lethal-injection issue to receive a lot more scrutiny, that’s a good thing.”

Earlier this week, the Supreme Court refused to consider a separate challenge by Florida death-row inmate Clarence Hill of whether the drug combination used in lethal injections across the United States amounts to cruel and unusual punishment.

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