Quiet Civil Disobedience When It Matters Most

When it comes to the death penalty, things are clear to me. The death penalty is immoral. It is man playing God, who in my admittedly-religious world view has both laid sole claim to the right to seek vengeance and is the ultimate determiner of when and how life shall end. Since we claim to be believers in God as a country, that should be the end of the matter.

But of course it's not. The constitutionality of the death penalty has been repeatedly upheld, even as constitutional evaluation of specific procedures associated with execution continues. Those evaluations include the one that the Supreme Court just agreed to take up on certiorari last month, granting the condemned man, Clarence Hill, a stay only at literally the last possible moment (Hill was already strapped to the death gurney when the stay was granted). But those cases at present do not deal with the 8th Amendment prohibition on cruel and unusual punishment. They address far more limited matters. And, so, the practice of legal murder in the United States continues unabated.

It was therefore extraordinary, what happened on San Quentin's death row just this past Tuesday. On Tuesday, an inmate named Michael Morales -- not exactly California's most upstanding citizen when it comes to his temper, to be sure -- was scheduled to be executed by lethal injection at 12:01 AM. Yet he wasn't. It was then rescheduled to 7:30 PM that same night. Yet Michael Morales is still living and breathing, his death warrant having expired at 12:00 midnight on Wednesday. Why?

Because both of the anaesthesiologists who were to be on hand to supervise the administration of the "pre-death sleep" -- barbituates -- refused to participate at the last minute on ethical grounds.

In order to understand why this was so extraordinary, one needs to know that in April, 2005, the British medical journal Lancet published the results of a study done by the University of Miami Medical Center, which reviewed lethal injection pharmacology and concluded that prisoners who had been executed by lethal injection had received significantly less anaesthesia than patients who undergo surgery -- making it likely that they were in significant pain when they were given the drugs that actually killed them. Pain that exceeded that which was felt by other alternatives such as the gas chamber or electric chair (neither known for its sanguine nature, which is why most states have abandoned them).

In the Morales case, his habeas lawyers argued that as a result of these and other scientific findings, Morales' execution by lethal injection using the default combination of drugs might violate the Eighth Amendment prohibition against cruel and unusual punishment because he would be in pain when the lethal drugs were administered. District Court Judge Jeremy Fogel (one of my personal favorites, I admit; if you have to be in federal court, you can't pick too many judges who are better than him to hear your arguments) agreed, but gave San Quentin alternatives that would in his opinion cure the constitutional defect and permit the State to go forward with Morales' execution nonetheless.

San Quentin elected to go with Option B in Judge Fogel's opinion: having an anaesthesiologist onsite continuously to ensure that Morales was completely unconscious when he was administered the "death dose" by prison officials (most folks don't realize that doctors do not participate in that part of lethal injection, even though it's obvious why: doctors are oath-bound to try and save life, not take it.)

That's where the civil disobedience part comes in.

At 4:00 PM - just three and a half hours before Morales' execution, after he'd been fed his last meal, had his last visitor other than his lawyers, and Morales had done whatever it is that condemned inmates do to get right with whatever hereafter they perceive, both anaesthesiologists assigned to participate in Morales' execution (despite what was a lot of pressure in the preceding 15 hours since they'd first raised concerns) collectively found the certainty of their consciences and said: "Oh, HELL no."

And they are being backed in that decision by both the AMA and the CMA, who said that their ethics are clear, and that there is no reason for doctors to be involved in the lethal injection process at all in violation of their ethical duties. So far, the editorials are on their side. As the San Jose Mercury editorialized simply yesterday:

The nature of the death penalty obligates the state to put every aspect of the process under a microscope.

.

So, right now at least, score one for the Team. Judge Fogel is scheduled to hear Morales' constitutional arguments about lethal injection and the Eighth Amendment in May. In the meantime, it's a win for death penalty opponents. Execution might still be technically legal right now here in California. But it's a meaningless legality at the moment because we can't actually use it.

Thank God.

Of course, there will always be the bloody-jawed "experts" like the one quoted in the New York Times who argues the condemned *should* suffer pain when being executed, who are readily dismissed because

The state should not fight for the right to sink to the same level as murderers.

There will be the utterly vacuous, like some editorialists in Florida who equated execution of an inmate by lethal injection with euthanising a family pet. And, despite increasing numbers of victims' families realizing that the vengeance of the death penalty does nothing to heal their loss or bring back their loved one, there will always be psychologically troubled unhealed family and friends of victims, who in their unresolved grief simply cannot see the moral inconsistency in their advocacy for the death of the person who murdered their loved one:

"He's the monster that killed the beauty, and he needs to pay for a crime that was senseless," said Jacqueline Miles, a family friend. "We need to actually show the world that people can't get away with murdering people just because they get mad."

I agree with Ms. Miles: People *can't* get away with murdering people just because they get mad. Including the State, acting as proxy for people who are mad. People like Ms. Miles. But they don't have to get away with anything - that's what life in prison without the possibility of parole was made for. Long enduring, permanent, punishment for committing a horrific act against another human being.

As opposed to the death penalty, which was supposed to accomplish all sorts of things (reduction in crime being at the top of the list) yet has managed to fail spectacularly at every single one of them:

The grim reality of the death penalty is that it's hard to end the lives of healthy human beings without torturing them in some way. Even if the death penalty had been proven to be effective in stopping crime (it hasn't) or were fairly administered (it isn't), it is inescapably cruel, reprehensible to any just society.