Federal Judge Jeremy Fogel apparently didn't like the idea of invalidating California's death penalty -- and possibly that of 36 other states, so he did a little legislating to get the result he was looking for.

A federal judge ruled Tuesday that California must change its lethal injection method for the execution of Michael Morales next week because the current mix of drugs may constitute cruel and unusual punishment.

U.S. District Judge Jeremy Fogel in San Jose declined to immediately postpone Morales' Feb. 21 scheduled execution, but he ordered the state to either have an expert present to ensure he's unconscious from a sedative or replace a three-drug death potion with a lethal dose of barbiturate.

Fogel said he was concerned inmates are conscious and undergoing extreme pain once a paralyzing agent and then heart-stopping medication begin coursing through their veins.

If the state declines to choose either new option, Fogel said he would stay the execution and have hearings on whether it is cruel and unusual punishment, a violation of the U.S. Constitution.

“The present action concerns the narrow question of whether the evidence before the court demonstrates that defendants' administration of California's lethal-injection protocol creates an undo risk that plaintiff will suffer excessive pain when he is executed,” Fogel wrote. “While the court finds that plaintiff has raised substantial questions in this regard, it also concludes that those questions may be addressed effectively by means other than a stay of execution.”

Fogel said his decision “preserves both the state's interest in proceeding with plaintiff's execution and plaintiff's constitutional right not to be subject to an undo risk of extreme pain.”

I'm sorry, but the judge can either decalre the death penalty unconstitutional or he can let the execution go forward, he shouldn't be sitting there legislating exactly how the execution must proceed -- that's a legislative or executive function, not a judicial one.