U.S. & World News

SAN JOSE (AP) ― federal judge ruled Tuesday that California must change its lethal injection method for the execution of Michael Morales next week because the current mix of drugs may constitute cruel and unusual punishment.

U.S. District Judge Jeremy Fogel in San Jose declined to immediately postpone Morales' Feb. 21 scheduled execution, but he ordered the state to either have an expert present to ensure he's unconscious from a sedative or replace a three-drug death potion with a lethal dose of barbiturate.

Fogel said he was concerned inmates are conscious and undergoing extreme pain once a paralyzing agent and then heart-stopping medication begin coursing through their veins.

If the state declines to choose either new option, Fogel said he would stay the execution and have hearings on whether California's injection protocol was cruel and unusual punishment, a violation of the U.S. Constitution.

"The present action concerns the narrow question of whether the evidence before the court demonstrates that defendants' administration of California's lethal-injection protocol creates an undo risk that plaintiff will suffer excessive pain when he is executed," Fogel wrote. "While the court finds that plaintiff has raised substantial questions in this regard, it also concludes that those questions may be addressed effectively by means other than a stay of execution."

Fogel said his decision "preserves both the state's interest in proceeding with plaintiff's execution and plaintiff's constitutional right not to be subject to an undo risk of extreme pain."

Nathan Barankin, spokesman for Attorney General Bill Lockyer, said the office was reviewing the decision and was not immediately prepared to comment. On Monday, it told Fogel that it rejected those two proposals.

Attorneys for Morales alleged a mistake in the sedation process might mean he would appear unconscious, but internally would succumb to excruciating pain once the paralyzing and death agents were administered.

David Senior, one of Morales' attorneys, said he was mulling the decision.

"To me, telling them they have to change the protocol indicates that it is a constitutional violation or he wouldn't be telling him to change the protocol," Senior said.

Morales, 46 of Stockton was convicted in 1983 of murdering Terri Winchell, 17, who was found beaten, stabbed and raped in a secluded vineyard.

Fogel said he decided to change California's injection protocol because, at the end of the day, neither "the death penalty nor lethal injection as a means of execution would be abolished."

The U.S. Supreme Court has upheld executions in general despite the pain they might cause inmates, but has never directly addressed whether alleged pain in lethal injections is unconstitutionally excessive and can be avoided.

Todd Spitzer, R-Orange, a death penalty supporter, was relieved that Fogel did not declare lethal injection unconstitutional.

"I think you should always evaluate the medical science on what is an appropriate lethal injection," he said.

Thirty-six of the 38 states that have capital punishment use a lethal injection procedure similar to California's. The state switched to lethal injection after a California judge ruled that San Quentin State Prison's gas chamber was cruel and unusual punishment.

The case is Morales v. Hickman, 06-219.

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