The L.A. Times gets it wrong yet again:
State officials predict the execution procedures could be approved by a state panel in six months to a year, clearing the way for a federal judge to lift a moratorium on executions. . . . U.S. District Court Judge Jeremy Fogel of San Jose imposed the moratorium Feb. 21, 2006, when he stayed the execution of convicted murderer Michael Morales.
No, he didn’t. He didn’t impose a moratorium and he didn’t stay the execution.
You can read his order for yourself, here. Show me where it says he is imposing a moratorium or staying an execution. You can’t, because he didn’t do that.
He said the execution could proceed. I’m about to give you the quote.
So why didn’t the execution take place? Because Judge Fogel made the execution impossible as a practical matter, by issuing an order that couldn’t be followed — namely, that a licensed medical professional participate in the execution:
[W]hile Defendants may proceed with the execution this evening using only sodium thiopental, they may do so only if the sodium thiopental is injected in the execution chamber directly into the intravenous cannula by a person or persons licensed by the State of California to inject medications intravenously.
The problem was, the state couldn’t make this happen:
“Nobody with a medical license could do this,” because it goes against medical organizations’ ethics, Dane Gillette, a senior assistant attorney general and the state’s death penalty coordinator, said in an interview.
He said registered nurses and medical technicians on the prison staff were licensed to administer drugs intravenously. However, the state was not willing to ask any of them to do so in public view, Gillette said. The state is prohibited by law from ordering its medical personnel to participate in executions.
Nor did Judge Fogel impose a moratorium months later, in his ridiculous December 2006 opinion, which I shredded in this post. You can search the opinion in vain for the word “moratorium.” You won’t find it.
Indeed, he doesn’t even clearly say that California’s execution protocol is unconstitutional. His opinion is not even a decision; it’s captioned a “memorandum of intended decision.” In other words, the judge said: “If you make me rule, this is how I intend to rule.” Even in that context, the closest he comes is to declaring the execution protocol unconstitutional was when he said that “the evidence is more than adequate to establish a constitutional violation” — a conclusion supported (as I explained in my post) by a blatantly extralegal shifting of the burden to the defendants to prove that the protocol was constitutional, when the burden actually rested with the plaintiffs to prove it was not.
But even this language doesn’t really establish a constitutional violation, so much as a memorandum of an intent to rule that there was a “risk” of a constitutional violation. That’s how mealy-mouthed this wordy excrescence was. As one reads the opinion further, one learns that the “constitutional violation” in question was the risk that a constitutional violation might occur. I’m not making this up! The judge said:
Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution.
This is jurisprudential vomit. It deserves no respect — just an immediate appeal to clean it up.
But the state didn’t do that. Nor did it subscribe to the solution offered by myself and Dafydd ab Hugh: changing the law to permit hanging or a firing squad.
Instead, the state has worked on changing its protocol. In the meantime, there has been a de facto moratorium — but only because the state hasn’t pushed the issue to the mat in the courts.
Let’s be clear. During this period of time, the Attorney General’s Office has been asking judges not to sign death warrants because they assume the executions will be stayed, and they don’t want to force the warden at San Quentin to gear up for an execution (an involved and costly process) that they believe will be stayed. I know this from firsthand experience. It’s a long story and I’m not going into it — but trust me: this is what they’re doing.
Frankly, I don’t think the state’s lawyers should refuse to take an action because they suspect that a judge will illegally move to block that action. My theory is: if your action is lawful, then take the action, let the judge make his crap ruling, and appeal it. Stand up and do what’s right. But that’s not what the Attorney General’s Office has chosen to do.
So no, L.A. Times, Judge Fogel didn’t impose a moratorium. The state has imposed its own, by backing down on the legal fight.
UPDATE: Well, that was quick. There’s now a correction:
FOR THE RECORD: An earlier version of this article said U.S. District Judge Jeremy Fogel imposed a moratorium on executions in California. Fogel issued a ruling that led to the state’s moratorium.
The passage now reads:
U.S. District Judge Jeremy Fogel issued a ruling that led to the state’s moratorium on Feb. 21, 2006, when he effectively stayed the execution of convicted murderer Michael Morales.
Accurate enough, in a highly technical sense.