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V. Case Study: Morales v. Hickman

In Morales v. Hickman, California prisoner Michael Angelos Morales sought a stay of execution so the court could conduct a full evidentiary hearing on his Eighth Amendment challenge to the state’s lethal injection procedures.198 Morales was able to present to the court far more compelling and extensive evidence regarding possible problems in prior California executions by lethal injection than any other court in California or elsewhere had previously received, including six California execution logs, which suggested the prisoners were still breathing, and conscious, while the other drugs were administered.199

Troubled by the evidence, the court took the unusual step of telling the corrections department it could go ahead with the execution only if it changed its protocol for executing Morales in one of two ways: either administer a single massive dose of a barbiturate, or have “a ‘qualified individual’ with formal training and experience in the field of general anesthesia” ensure that Morales was in fact unconscious before any other drugs were injected.200 The court in Morales also urged the state to “conduct a thorough review of its lethal injection protocol, regardless of whether Morales is executed according to one of the court’s suggested methods.”201 The court pointed out that, given the questions raised by Morales and others before him, a “proactive approach by Defendants would go a long way toward maintaining judicial and public confidence in the integrity and effectiveness of the protocol.”202

The Department of Corrections chose the option of executing Morales using the three-drug protocol subject to the condition of having a qualified person monitor Morales to determine his anesthetic depth before the other drugs were initiated. The Department initially proposed the warden of San Quentin as the person to determine whether Morales was sufficiently unconscious, even though the warden had no medical or otherwise relevant background.203 When the public spokesperson for the California Attorney General, responding to press inquiries about the Morales case, was asked if the Department of Corrections felt the warden was qualified to monitor the anesthetic depth of Morales during his execution, he replied, “Well, not to a medically-trained standard, but yes to a lay-person standard.”204

The proposal to have the warden monitor Morales was quickly rejected by the judge. The Department then found two anesthesiologists willing to be present at the execution.205 The two withdrew after the Court of Appeals for the Ninth Circuit added a stipulation requiring the anesthesiologists personally administer additional medication if the prisoner remained conscious or was in pain.206 In the end, no trained personnel could be found to undertake the role envisioned by the courts, and the execution was stayed when California refused to execute Morales with a massive dose of sodium thiopental.207 When Human Rights Watch asked the California Attorney General’s public spokesperson why the corrections department did not choose the sodium thiopental option, he responded, “[The execution] would take too long.”208

The judge has ordered a full evidentiary hearing on California’s lethal injection procedures for May 2 through 3, 2006.209

In the meantime, California corrections officials continue to tinker with their execution protocols. In March, the Department of Corrections abruptly announced changes to its protocol: the sodium thiopental will be administered in a continuous drip, rather than a single dose of anesthesia, and the dosage of each of the three drugs has been reduced.210 The rational for the lowered doses is not clear. The changes were a result of consultations with corrections department staff and did not involve outside medical experts.211 California officials claim the litigation and discussions about prior executions provided an impetus to revisit the protocol and make changes that will render the method of execution “equally safe but more effective.”212  At the same time, California officials contend that they need not choose the “best” method of lethal injection or prove their lethal injection executions are humane—that burden of proof is on California’s condemned inmates.213 The state may be correct as a matter of current constitutional jurisprudence. But the state’s position displays a stunning callousness for prisoners facing execution as well as utter disregard for its human rights responsibilities.

On April 7, 2006, citing the example of Morales, a federal judge in North Carolina ordered that an execution there could only take place as scheduled:

[O]n the condition that there are present and accessible to Plaintiff throughout the execution personnel with sufficient medical training to ensure that Plaintiff is in all respects unconscious prior to and at the time of the administration of any pancuronium bromide or potassium chloride.214

The court also ordered the “execution personnel with sufficient medical training” present to provide “appropriate medical care” if the prisoner “exhibits effects of consciousness.”215 The court was disturbed by eyewitness accounts of prisoners’ violent physical movements after the administration of the lethal injection drugs began, and by recent toxicology reports that suggest prisoners may not have been sufficiently anesthetized during their lethal injection executions.216

[198] See Plaintiff’s Motion for Temporary Restraining Order, Morales v. Hickman, Case No. C062, January 26, 2006.

[199]Due to ongoing litigation, some of the Plaintiff’s Exhibits are under court seal. Those Plaintiff’s Exhibits that are public record are available online at: and (retrieved March 24, 2006).

[200]U.S. District Court for the Northern District of California, Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction, Morales v. Hickman, Case No. C062, February 14, 2006.

[201]Ibid., p.13.


[203] Human Rights Watch telephone interview with Nathan Barankin, spokesperson for the California Attorney General Bill Lockyer, March 30, 2006.

[204] Ibid.

[205] Defendant’s Response to Court’s Conditional Denial of Preliminary Injunction, Morales v. Hickman, Case No. C062, February 15, 2006.

[206] Morales v. Hickman, No. CV 06 00926 JF (Ninth Circuit February 20, 2006); John Broder and Carolyn Marshall, “Questions Over Method Lead to Delay of Execution,” New York Times, February 2, 2006, p. A11. 

[207] “Statement of California Department of Corrections and Rehabilitation Warden Steven Ornoski,” issued February 21, 2006, (retrieved April 4, 2006) (the warden explains that the state cannot comply with the judge’s orders and thus has called off the execution of Morales). The judge’s order said the state could proceed with the execution on February 21 under the two conditions mentioned above, or—if the state did not execute Morales on February 21—a stay would be issued by order of the court for purposes of holding an evidentiary hearing on the constitutionality of lethal injection.Morales v. Hickman, U.S. District Court for the Northern District of California, Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction, Case No. C062, February 14, 2006.

[208] Interview with Barankin.

[209] Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction, U.S. District Court for the Northern District of California, Morales v. Hickman, Case No. C062, February 14, 2006.

[210] Ibid.

[211] Ibid.

[212] Ibid.

[213] Ibid.

[214] Order, Brown v. Beck, No. 5:06-CT-3018-H, April 7, 2006, p. 14 (copy on file with Human Rights Watch).

[215] Ibid.

[216] Ibid., p. 8-10.

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