Amid Medical Reluctance, California Delays Execution

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A California judge puts off the execution of convicted murderer Michael Morales because no medical professional has been willing to witness the event. Stanford law professor Robert Weisberg offers his insights about the postponement.

ALEX CHADWICK, host:

California has more prison inmates waiting for their executions, 650, than any other state. They're probably all on hold now because of a judicial ruling earlier this week that delayed the scheduled death of a convicted killer at San Quentin, Michael Morales. His lawyers had objected to the method of execution, lethal injection, saying it may be very painful, and thus, constitutionally prescribed as cruel. The judge ordered the state to get an anesthesiologist to oversee the procedure, but when no doctor would agree to participate, the state decided not to go ahead, for the moment anyway.

Professor Robert Weisberg teaches law at Stanford University. He's worked on death penalty appeals. Professor Weisberg, welcome to the program, and how does this case change things for the death penalty? Is there now, in effect, a moratorium in the state of California?

Professor ROBERT WEISBERG (Law professor at Stanford University): Oh, there is, for at least a few months until the May hearing. It's very hard to predict what will happen there. One possibility is that the state will insist that it has done everything possible to reduce gratuitous pain from the execution process, that it can't employ trained medical professionals, most obviously doctors, to provide an extra layer of protection because the medical, ethical standards simply will not permit it, that they've done everything constitutionally possible, and then if Judge Fogel is still dissatisfied, one can imagine they'll go to the 9th Circuit of the Supreme Court.

CHADWICK: Would this complicate executions scheduled in other states beyond California?

Professor WEISBERG: This decision by itself, no, but there seems to be some parallel litigation going on other places. The U.S. Supreme Court has stayed a couple of executions in Florida without clarifying the reason. No question that Judge Fogel's actions so far, even if they aren't binding precedent anywhere else, are going to be, you know, inspiring a lot of litigation activity elsewhere.

CHADWICK: I think we got to lethal injections as a method of execution because the gas chamber seemed to be too cruel. And we got to the gas chamber because electrocution seemed too cruel, and to electrocution because hanging seemed too cruel. Maybe death penalty opponents are succeeding in arguing that there simply is no such thing as an execution which would not be too cruel.

Professor WEISBERG: Yes, I think that's the current hope of death penalty opponents. Obviously, a response is going to be, nobody ever promised that executions would be absolutely pain-free. So long as there's some independent, you know, legal or moral ground for the death penalty, the best we can do is the best we can do.

CHADWICK: Two days ago, DAY TO DAY spoke with the chair of the American Medical Association's Counsel on Ethical and Judicial Affairs, Dr. Priscilla Ray. She said it's simply unethical for a doctor to have anything to do with an execution, but if society thinks execution is an appropriate penalty for some crimes, doesn't it have a legitimate interest in seeing that sentence carried out as humanely as possible?

Professor WEISBERG: Well, I can understand that, but it seems right now that the medical profession is not going to allow that to happen, so we get this rather bizarre situation now where we have elaborate medical analyses of the ways executions should be done, supervised, of course, by a judge. It's almost as if what we have now is doctors talking on microphones to non-doctors performing brain surgery trying to make sure they have the best possible instructions but never actually entering the room where the surgery is done. It's a pretty bizarre situation.

CHADWICK: So, what is a court to do in this situation? A jury has said you should execute this person. What does a court do?

Professor WEISBERG: Court is going to have to think about its view of the cruel and unusual punishments clause of the 8th amendment and decide whether it is cruel to inflict any pain which is beyond what is necessary to cause death, or is a court going to say, look, nothing in the constitution ever promised a painless death.

It's an impossible question because there's ultimately just, you know, a big, vague, mushy core at the center of our 8th amendment and that's why this may go up to the U.S. Supreme Court. The one thing I would add is that the Morales case has not caused a huge political storm as it might have in some years past. It could be that the concern about DNA exonerations and other aspects of the death penalty have just really kind of lowered the temperature of death penalty debate in the U.S.

CHADWICK: Robert Weisberg teaches law at Stanford University. Professor Weisberg, thank you for joining us on DAY TO DAY.

Professor WEISBERG: Thank you very much.

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