California executions remain in everlasting limbo

Deborah Denno in San Jose Mercury News, December 26, 2011

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As California nears its sixth year without an execution, state officials find themselves once again grappling with a judge's order that concludes they've botched crafting a new and legal method of putting condemned killers to death by lethal injection.

For the third time during the six-year moratorium on executions, a judge has ordered the state back to square one in creating new lethal injection procedures. The development all but ensures San Quentin's death chamber will remain dormant until at least well into 2013.

The timing could be important: The issue will draw heightened debate next year against the backdrop of a ballot measure designed to repeal the death penalty and replace it with life in prison without the possibility of parole.

And last week, California Supreme Court Chief Justice Tani Cantil-Sakauye added her voice to the debate, telling the Los Angeles Times the death penalty is "not effective" and needs an overhaul the state cannot afford.

Meanwhile, even in a slow year for executions nationally, 13 states managed to carry off 43 executions in 2011, in many instances after solving legal challenges to their lethal injection procedures, according to a report released this month by the Death Penalty Information Center.

Death penalty foes have pounced quickly on a Marin judge's order earlier this month scrapping California's latest version of its lethal-injection method. They cite it as another example of why voters should do away with a seldom-used punishment on the state's 720-inmate death row, the nation's largest.

Meanwhile, death penalty advocates find the state's lengthening pattern of bungled bids to kick-start executions maddening.

"Some frustration is an understatement," said Kent Scheidegger, executive director of the Criminal Justice Legal Foundation, a leading death penalty group.

Fordham University law professor Deborah Denno, a death penalty foe and lethal-injection expert, said California is "sticking so rigidly to a tried but untrue formula" to end its legal battles.

"California appears to be out of the loop with respect to what other lethal-injection states are doing," she added.

California's chief problem now is that it has stuck stubbornly to the same fatal three-drug combination to carry out executions, without explanation and despite suggestions from judges and experts to change its formula. Meanwhile, other states have short-circuited similar legal challenges with various changes, notably in several states switching to a single, deadly dose of a sedative.

The latest roadblock to executions is part of two separate but related legal challenges unfolding in the state and federal courts. In last week's order, Marin County Superior Court Judge Faye D'Opal found California failed to follow proper state administrative procedures when it adopted a new lethal-injection procedure in 2010.

The state crafted those procedures to satisfy a federal judge who put executions on hold in 2006, concluding the prior method was rife with problems that posed an undue risk of an inhumane death during executions. Separately, death row inmates then sued in state court, alleging California officials did not follow strict state rules in adopting changes to the execution protocol. The federal case will now remain in limbo until the state comes up with new procedures, a process that last time around took more than a year.

D'Opal identified numerous flaws in the state's method but singled out the fact that prison officials failed to explain why they did not choose a single-drug method that involves using a fatal dose of a sedative to execute the condemned. California's own expert recommended using that method to replace the three-drug combination used in past executions, which has been challenged because of concerns the third and final paralytic drug can mask an inmate's pain before death.

Two states, Ohio and Washington, have already opted for the single-drug option. And as early as 2006, San Jose U.S. District Judge Jeremy Fogel essentially invited California to resolve the legal challenge to lethal injection by switching to the single-drug method because it would eliminate worries about the effect of the third drug.

But California stuck to the three-drug method -- and finds itself back at the drawing board.

Terry Thornton, spokeswoman for the state Department of Corrections and Rehabilitation, said prison officials would not comment until they've reviewed the ruling, which can be appealed.

Jeanne Woodford, former head of the prison system and now a leading death penalty foe, said it is unclear what is behind the decision to stick to three drugs, calling it "curious." Sara Eisenberg, the lawyer for the death row inmates, added the state now must at least explain its reasoning or risk more court rebukes.

Meanwhile, the state's death penalty machinery keeps cranking. A Los Angeles jury just two weeks ago recommended a death sentence for a serial killer, the latest addition to death row.

Scheidegger has urged state prisons chief Matthew Cate to adopt the single-drug method to move executions forward. And he maintains that state officials can end run the administrative process by citing "operational needs" to avoid further delays.

"All he has to do," Scheidegger said, "is click his ruby slippers and say, 'one drug, operational needs.' There is no excuse for holding up justice any longer."