Fordham Law


New execution method unlikely to gain traction in California

Professor Deborah Denno in The LA Times, December 09, 2009

New execution method unlikely to gain traction in California

The state would face numerous procedural hurdles to carry out capital punishment as in Ohio, which put a murderer to death with single-drug lethal injection.

By Carol J. Williams
December 9, 2009
 
An Ohio murderer put to death with the nation's first single-drug lethal injection died swiftly Tuesday, inaugurating an execution method some analysts consider more humane than the three-drug procedure used in California and 33 other states.

But the method used in Ohio is unlikely to gain traction in California, experts say, because of procedural hurdles and persistent concerns about how the drugs -- whatever their number -- are administered to the condemned.

Kenneth Biros, 51, who killed and dismembered a woman in 1991, died nine minutes after being injected with a massive dose of sodium thiopental, a powerful barbiturate that puts its subjects into a sleep so deep they stop breathing. Ohio prisons director Terry Collins described the execution as problem-free.

California and several other states that have the death penalty on hold are reviewing their three-drug procedures to address claims that it might inflict "cruel and unusual punishment" banned by the Constitution. The first drug -- the one used in Biros' execution -- is supposed to render the prisoner unconscious before paralysis is induced by the second drug and cardiac arrest by the third. In some of the 11 lethal injections carried out in California since the 1990s, analysts contend the prisoner was still conscious when the painful fatal dose was injected.

Ohio authorities were able to quickly revise their execution method after a failed Sept. 15 attempt at putting to death another inmate, Romell Broom, 53. The execution team worked for more than two hours trying to find a suitable vein before the governor halted Broom's execution.

California couldn't switch methods so quickly. The state's Administrative Procedures Act requires authorities to seek public comment on any change in official practices.

Capital punishment supporters say opponents abuse the law to delay executions.

"Opponents of the death penalty then intentionally make that process more expensive and time-consuming than necessary by spamming [corrections officials] with a flood of irrelevant comments decrying the death penalty generally," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento-based foundation that represents the interests of victims' rights groups and law enforcement.

Deborah Denno, a Fordham University law professor who opposes the death penalty, said Ohio's execution of Biros probably will inspire other states to consider adopting that method. But it has done nothing to address the problem executioners often encounter in finding a vein capable of holding the catheter through which the lethal drug or drugs are delivered, she said.

UC Berkeley law professor and Death Penalty Clinic director Elisabeth Semel noted that the one-drug method has been discussed during the four years that California's three-drug protocol has been under review. But a task force appointed by Gov. Arnold Schwarzenegger in 2007 to revise the execution method apparently never gave it serious consideration, Semel said.

"It's the historic problem with execution procedures, that they have always been conducted in secret," said Semel, whose clinic offers opportunities for students to represent prisoners with capital sentences.

U.S. District Judge Jeremy Fogel in San Jose ruled California's lethal injection practices unconstitutional in December 2006. The governor's task force revised the procedures to ensure that the prisoner would be fully anesthetized before death, but before the changes could be evaluated by Fogel, attorneys for two death row inmates challenged their legality in state court.

A judge in Marin County, where San Quentin's execution chamber is located, deemed the revised procedures illegal for their lack of public input. A state appeals court upheld the ruling a year ago, prompting the California Department of Corrections and Rehabilitation to call for comment, drawing more than 8,000 letters, e-mails and public statements.

The corrections department "is still going through the thousands of public comments received. No one knows when that will be completed," said spokeswoman Terry Thornton.

Scheidegger disputes that there are procedural faults with California's existing lethal injection practices, attributing the suspension of executions to the work of those morally opposed to capital punishment.

"Those who feign concern over methods when their real target is the death penalty itself will continue to do so regardless of what method is adopted," he said.

Legal rights accorded capital prisoners contribute to an average 25-year period between sentencing and execution. Only six of California's 685 death row inmates have exhausted all appeals and would be available for execution.