Is Lethal Injection Legal?

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During a month of frantic courthouse wrangling about whether California inmate Michael Morales should be executed by lethal injection, his lawyers contended that the state's execution procedures amounted to cruel and unusual punishment because scientific evidence suggests the intravenously administered three-drug mixture doesn't alleviate severe pain as it stops the heart. But it wasn't their argument, or a decision from presiding U.S. District Judge Jeremy Fogel that temporarily halted Morales' execution. Rather, it was the ethical stance by doctors, who refused to serve as monitors prepared to intervene in case of complications, because of their Hippocratic oath to do no harm.

Their objection prompted the judge to order a hearing later this spring to derive a constitutionally proper medical protocol for administering the injections. Lawyers say the Morales case is adding further uncertainty to an already confusing area of the law. "It's incredibly murky because there have been disparate rulings at the state and federal level on what the standards are and how they should be interpreted," says Professor Deborah Denno, of Fordham Law School.

To clear things up, most believe it will fall to the Supreme Court to decide the permissible means of executing death row inmates by lethal injection. "The Morales case is an encouraging sign," says Tom Goldstein, a Washington, D.C., attorney who has just petitioned the Supreme Court to consider his appeal on behalf of Tennessee death-row client Abu Ali Abdur'Rahman. "The courts for so long have just given this issue the back of their hand, while the states have said, 'Everyone else is giving lethal injections this way so we can do it too,' even though they don't have good reasons for using these drugs and can't justify not having better-trained people administering them."

Because of the conflicting legal decisions, as well as the growing body of credible scientific evidence that the drugs have the potential to cause considerable pain and suffering, Goldstein says "the Justices must realize that the question of national uniformity is open and every lethal injection is going to be challenged on the basis of the protocol used. So I think it has gotten more likely that they will feel the need to answer the questions once and for all."

In the process, some legal scholars speculate, execution opponents could gain allies, as details about the process are explicated and publicized. "The fact that the doctors in California backed out is like a loud bell saying 'Look, there's something wrong here. Why don't you take some time and look at it," says Denno. "I always thought that everyone would start paying more attention to this issue once you got it out of the basement of the corrections departments, with the people who have been delegated a lot of authority for carrying out executions but are largely invisible to the public, and up to the penthouse of the medical establishment. Now, the public will have to confront an issue they've never really had to face, even though it's been going on for centuries."

Mona Cadena, a regional field director for Amnesty International agrees. "Time will tell whether it strikes a blow against lethal injections. But talking about having someone enter the death chamber to administer the drugs takes away the anonymity that [the current method of hooking the inmate up to a machine outside the room] puts in place and will force us to decide who will take responsibility for ending a human life, which is a hard thing to ask someone to do."

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and proponent of the death penalty, dismisses such talk. "The issues regarding the protocol aren't very substantial to begin with, and I expect they will be resolved within a few months," he says.

Still, the debate could get lively. Says Doug Berman, law professor at Ohio State: "We're in uncharted territory in a lot of ways."