Schwarzenegger moves to fix execution method

"We're gonna comply with the judge," Schwarzenegger told reporters in Los Angeles at the California Hospital Medical Center.

Fogel ruled on a lawsuit by a condemned inmate whose execution the San Jose-based judge called off earlier this year amid fears that executioners may not be properly sedating the inmate before administering a paralyzing agent, then finally a heart-stopping drug. An inmate who remains conscious through the entire process may feel excruciating or unnecessary pain, in violation of the Constitution, Fogel ruled.

But while Fogel said the execution protocol was "broken," he noted that it could be "fixed."

Schwarzenegger said Monday that his administration would take "immediate action to resolve court concerns." He ordered his legal affairs secretary, Andrea Lynn Hoch and James Tilton, secretary of the California Department of Corrections and Rehabilitation, to come up with a plan to address Fogel's decision.

"I am committed to doing whatever it takes to ensure that the lethal injection process is constitutional so that the will of the people is followed and the death penalty in maintained in California," the governor said in a statement.

The Schwarzenegger administration said it was too early to say when the new plan would be ready for California to resume executions.

Fogel reached his decision after holding a four-day hearing in September that revealed prison guards were inadequately trained to participate in executions. One prison official who was part of the execution team had been sanctioned for smuggling drugs into San Quentin State Prison.

Drugs were not properly accounted for, at times they weren't properly mixed, unused drugs were not returned to the prison's pharmacy and executioners worked in the crowded chamber under dim lights, Fogel concluded.

California has been under a capital punishment moratorium since February when Fogel halted the execution of rapist and murderer Michael Morales.

In stopping Morales' execution, Fogel found substantial evidence that the last six men executed at San Quentin might have been conscious and still breathing when lethal drugs were administered -- meaning they might have felt unnecessary pain.

Richard Steinken, one of Morales' lawyers, expressed reservations that lethal injection could ever be constitutional.

"Obviously, one of our goals in defending Mr. Morales is trying to keep him alive," Steinken said.

Morales, 47, of Stockton, raped, beat and stabbed Terri Winchell, 17, of Lodi, in 1981. Her body was found in a secluded vineyard.

The U.S. Supreme Court has upheld executions -- by lethal injection, hanging, firing squad, electric chair and gas chamber -- despite the pain they might cause, but has left unsettled the issue of whether the pain is unconstitutionally excessive.

Lethal injection is used in 37 states. But it has come into question recently, as a Missouri judge declared that state's method unconstitutional two months ago and Gov. Jeb Bush declared a moratorium on all Florida executions last week after a lethal injection there was bungled.

There are more than 650 men and women on California's death row, the nation's largest.

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

------

Editors: David Kravets has been covering state and federal courts for more than a decade.