This article argues that California's Procedure 770 as currently implemented is unconstitutional. Judge Fogel, after an exhaustive review of evidence from all parties,agrees. Although Judge Fogel believes that the lethal injection system, while broken "can be fixed," we argue that lethal injection, as a method of execution, is always unconstitutional because the procedures employed in its administration can never ensure against unnecessary risk of pain to the inmate. We also argue that the California legislature must step in to publicly review lethal injection executions and to investigate the conduct of the California Department of Corrections and Rehabilitation (CDCR) in the manner in which prior executions have been carried out at San Quentin. This article examines the issues and lessons illuminated by the constitutional challenge to Procedure 770 raised by Michael Morales. Part II reviews the history of the lethal injection procedure in California. Part III provides analysis of the ways by which challenges to lethal injection executions may be raised and the process of securing a stay of execution while litigation is pending. Part IV examines the Eighth Amendment jurisprudence and its applicability to lethal injection executions. Part V, using the Morales case as a backdrop, looks at how courts evaluate whether California's lethal injection procedures create an "unnecessary risk of pain." Part VI then reviews the court's ruling in Morales. Part VII presents the conflict between the constitutional standard and medical ethics. Finally, Part VIII presents an assessment of the Morales case and makes recommendations for what the court and legislatures should do.
Ellen Kreitzberg and David Richter,
But Can it be Fixed? A Look at Constitutional Challenges to Lethal Injection Executions
, 47 Santa Clara L. Rev. 445
Available at: http://digitalcommons.law.scu.edu/facpubs/41