[posted by Justin Levine]
In the coverage of the Supreme Court’s decision of Baze v. Rees, virtually all California news outlets have managed to ignore the importance of Justice Alito’s concurring opinion, and what it specifically means for the future of California’s death penalty.
But let’s recap a few things first.
Michael Morales was scheduled to be executed in February 2006 for raping, bludgeoning and stabbing 17-year-old Terri Winchell near Lodi in January 1981.
Just hours before his scheduled execution, U.S. District Judge Jeremy Fogel ruled that in order for the execution to proceed, the California would need to find a licensed medical professional to administer the lethal injection drugs properly. Ethical restrictions prevented medical professionals from participating in state executions. The end result was that the execution of Morales had to be postponed indefinitely.
Judge Fogel later ruled [PDF] in December 2006 that California’s lethal injection protocol created an ‘unnecessary risk’ of being ‘cruel and unusual’ and thus violated the 8th Amendment to the Constitution. [UPDATE BY PATTERICO: Actually, Fogel merely threatened to do this, in a highly flawed "Memorandum of Intended Decision."]
In response to Fogel’s ruling, California agreed to reform its procedures for administering lethal injections. It devised a new plan that included upgrades in staff selection and training, and a new death chamber. However, after California submitted its new plan with the hopes of overcoming the objections of Federal Judge Fogel, California Superior Court Judge Lynn O’Malley Taylor ruled that the state’s new procedures for lethal injections were invalid because the public never got the chance to comment on them. That decision is now before the California Court of Appeals.
So with that important background in mind, lets now turn to Justice Alito’s concurring opinion in Baze.
Alito wrote is opinion in response to Justice Thomas’s compelling argument that the plurality opinion had set an unworkable standard that would only encourage more litigation over death penalty cases, rather than providing the clear guidance that is needed.
Alito tries to argue that if the main plurality decision by Chief Justice Roberts is “properly understood,” there should be no concern about “never-ending litigation.”
Alito explains that the legal standard articulated by the decision holds that a method of execution can be considered to be “cruel and unusual” if a state “’without a legitimate penological justification,’ rejects an alternative method that is ‘feasible’ and ‘readily’ available and that would ‘significantly reduce a substantial risk of severe pain.’”
Put simply, according to Alito’s reasoning, if it is not practically “feasible” for a state to adopt certain procedures in its execution methods, then it need not worry about having to adopt it for purposes of passing Constitutional muster.
Alito then gives a critical example of what he would consider to be an unfeasible request for a state to fulfill in its proposed method of execution: the participation of licensed medical staff. Alito admits that if “medical professionals who participate in [surgeries] also participated in the anesthetization of prisoners facing execution by lethal injection, the risk of pain would be minimized.” However, Alito also points out that “the ethics rules of medical professionals—for reasons that I certainly do not question here—prohibit their participation in executions.”
Of all the prisoners on death row in the 30+ states that use similar methods of lethal injection to execute prisoners, Alito points to just one case in particular to illustrate his point:
Recent litigation in California has demonstrated the effect of such ethics rules. Michael Morales, who was convicted and sentenced to death for a 1981 murder, filed a federal civil rights action challenging California’s lethal injection protocol, which, like Kentucky’s, calls for the sequential administration of three drugs: sodium pentothal, pancuronium bromide, and potassium chloride. The District Court enjoined the State from proceeding with the execution unless it either (1) used only sodium pentothal or another barbiturate or (2) ensured that an anesthesiologist was present to ensure that Morales remained unconscious throughout the process. Morales v. Hickman, 415 F. Supp. 2d 1037, 1047 (ND Cal. 2006). The Ninth Circuit affirmed the District Court’s order, Morales v. Hickman, 438 F. 3d 926, 931 (2006), and the State arranged for two anesthesiologists to be present for the execution. However, they subsequently concluded that “they could not proceed for reasons of medical ethics,” Morales v. Tilton, 465 F. Supp. 2d 972, 976 (ND Cal. 2006), and neither Morales nor any other prisoner in California has since been executed, see Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49 (2007).
Alito concludes that if professional ethics prevent medical personnel from participating in executions, then it cannot be “feasible” for the states to use them. Thus, a state cannot be required to have medical personnel at executions as part of a Constitutional requirement.
In other words: Even though California’s Morales case was not specifically before the Supreme Court, Alito’s concurring opinion subtly conveys the message that Judge Jeremy Fogel is clearly in error regarding his December 2006 [PDF] opinion.
Alito’s opinion is a direct shot across the bow of Fogel’s court, but none of the California papers managed to pick up on it.
So here is the ultimate irony: California ended up needlessly devising new death penalty procedures based on a ruling that is almost certainly in error. But now that it has done so, a state court has likely delayed executions even further because it declared that the (unnecessary) revisions on executions were not submitted for public comments. Can there be a better illustration of what a farce the courts have made of our death penalty system?
This only goes to prove that Thomas has the best argument, and that Chief Justice Robert’s plurality opinion will still likely end up encouraging more litigation resulting in a further delay of executions. All the same, it will be interesting to see if Alito’s concurrence will be cited in Judge Fogel’s next hearing on the death penalty in California.