Challenging Death Penalty

"One of the effects of lethal injection is to desensitize the public to what is being done in its name. Yet an execution that is purportedly scientific, clean and painless, and carried out away from public view is still an execution." -- Los Angeles Times editorial, Feb. 23.

The two anesthesiologists who walked away from a California execution in February managed to shed a fresh light on the absurdity that is capital punishment.

The execution of Michael Morales, convicted of the 1981 rape and murder of Terri Winchell, was postponed indefinitely Feb. 21 after two unnamed physicians changed their mind about overseeing Morales's lethal injection. The doctors had volunteered to supervise the execution after a US District Court judge had ruled that an anesthesiologist must be present to ensure that Morales was unconscious when the standard three-chemical injection was to be administered.

US District Court Judge Jeremy Foge's ruling was based on the notion that more stringent safeguards were necessary to prevent Morales from feeling pain during lethal injection.

While the judge did not rule on whether lethal injection violated the constitutional prohibition against cruel and unusual punishment, he did highlight the vast machinery death penalty advocates have been forced to erect in their attempt to present capital punishment as a civilized punishment.

"First and foremost, what we are seeing is the same problems with previous methods of execution," Elisabeth Semel of the Boalt Hall School of Law at the University of California Berkley told the Los Angeles Times.

"When human beings endeavor to kill one another, there is no such thing as a perfect, clean, problem-free process."

Lethal injections have been the primary method of execution used in the United States since 1976, with 844 of the 1,012 prisoners killed by the state dying by the needle. But several studies -- most recently an article in the British medical journal Lancet -- have now raised questions about "possible pain and suffering involved in lethal injections."

The Lancet article, which ran in April 2005, led several states to halt planned executions, according to the Times, while the use of lethal injection has been challenged in Florida and Tennessee with additional ones pending in Maryland, Missouri and Texas.

In Florida, the Times reported, the court stayed two executions until it could resolve "the question of whether death row inmates can bring last-minute civil rights challenges that execution by lethal injection is cruel and unusual." In Tennessee, the paper reported, defense lawyers challenged the use of a specific drug "because of the risk that it will result in their client's suffering inhumane pain."

Judge Fogel's ruling was an attempt at splitting the difference on the issue. He did not rule on the constitutionality of lethal injection, but attempted to create more stringent guidelines to protect the condemned. In doing so, he pointed up the essential contradiction.

The Los Angeles Times made this point clear in a Feb. 23 editorial:

"Why don't we just shoot Michael Morales?" the editorial questioned. "Or suffocate him with poison gas, or incinerate him with electricity, or strangle him with a noose? And put it on TV, so everyone can watch.

"Too gruesome? Too uncivilized? Of course. So why is it acceptable to inject him with the heart-stopping drugs inside a tiny chamber, out of public view except of a few witnesses?"

Capital punishment, the Times editorial continued, "is an affront to civilized society" and "should not be reformed -- it should be abolished."

As the San Francisco Chronicle pointed out in its own editorial, the failed Morales execution should force Californians -- and all Americans -- "to confront the ultimate issue of moral relativity: Is there a humane way to kill another human being? How much suffering can the state inflict and still regard its killing as morally distinct from the violence of the heinous criminals whose lives are being taken?"

The answer to the first question is no; the second needs no answer.

As retired Supreme Court Justice Harry Blackmun wrote in a 1994 dissent, "The death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies."

Or as the Chronicle put it, "The proper argument is not the moral relatively of a method of killing, but of the core morality of the act of killing."

Hank Kalet is a poet and managing editor of the South Brunswick Post and the Cranbury Press in central New Jersey. Email

From The Progressive Populist, April 15, 2006

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