Sunday, December 17, 2006
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California's procedures for execution by lethal injection -- described by a federal judge as broken but repairable -- will require a new commitment of energy and resources from state officials, starting with Gov. Arnold Schwarzenegger, several analysts said Saturday.
"If the governor says this is a high priority, it's going to get the attention it needs from top-level officials,'' said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation and a supporter of capital punishment.
The key to compliance with U.S. District Judge Jeremy Fogel's ruling is "a different attitude,'' said Deborah Denno, a professor at Fordham University School of Law in New York and an opponent of the death penalty. "Judge Fogel is putting the onus on the governor.''
In Friday's 17-page decision, Fogel cataloged the flaws in the state's execution methods that were aired at a four-day hearing in September: Prison staffers are poorly trained and supervised, work in dimly lit and overcrowded conditions and deliver chemicals they know little about into a sealed execution chamber at San Quentin where they cannot hear the inmate and can barely see him.
Accounts of seven of the 11 lethal-injection executions conducted since 1996 suggested that the inmates may have been conscious and in pain as they were dying -- or at least the record-keeping was so slipshod that prolonged consciousness could not be ruled out, the judge said. He said prison officials' attitude might have been summarized by former San Quentin Warden Steven Ornoski, who testified that he considers a successful execution to be one in which "the inmate ends up dead.''
Though finding the current procedures "intolerable under the Constitution,'' Fogel declined to issue a ruling against the state, which would have guaranteed an appeal and another year -- or more -- of litigation. Instead, he said he was willing to declare the system constitutional if the state, led by Schwarzenegger, acted quickly and thoroughly to take corrective measures.
"The court urges the governor's office to take this opportunity to address seriously now, rather than later, the significant problems,'' Fogel said.
He cautioned against a repeat of the state's response to one of his previous rulings -- a 90-minute meeting in the governor's office, in which lawyers devised minor changes to the procedures without addressing the underlying defects.
In the meantime, executions in California remain on hold, as they have been since February, when Fogel issued a stay for Michael Morales of Stockton, sentenced to death for the rape and murder of 17-year-old Terri Winchell of Lodi in 1981.
Schwarzenegger responded Friday with a cautiously worded statement from his legal affairs secretary, Andrea Hoch: "As the ruling provides, the administration will review the lethal injection protocol to make sure the protocol and its implementation are constitutional.'' The governor, she added, "will continue to defend the death penalty and ensure the will of the people is represented.''
Santa Clara University Law Professor Gerald Uelmen said Schwarzenegger didn't seem to be expressing the forthright commitment that Fogel was looking for. "All it's going to take is a little motivation,'' Uelmen said.
But the governor's aides have assured reporters that he is committed to making changes that would satisfy the judge. That was also the view expressed Saturday by Dane Gillette, a senior assistant attorney general and lead attorney for the state in the case.
"The governor's office and the Department of Corrections will be examining the lethal injection procedures in light of Judge Fogel's concerns,'' Gillette said. "I would anticipate that the governor's office will want a full review of the procedures, what's happened and what can be done to fix it.''
He said Schwarzenegger would comply with the order, which requires him to tell Fogel within 30 days how long it will take to fix the problems. Gillette declined to say how long that might be, while Scheidegger and Denno gave varying predictions.
"My impression is, it wouldn't be very difficult,'' said Scheidegger, who said the task might be completed in six months. Besides investing in a more experienced and better-trained staff, he said, one logical step is to construct a chamber for lethal injections, which now take place in San Quentin's former gas chamber, an airtight and soundproof structure that makes monitoring difficult.
But Fordham's Denno said a proper review would take at least a year.
"I think it's going to take an awful lot for the state to patch this up,'' she said.
One reasonable step, she added, would be creation of a commission like the one established Friday by Florida Gov. Jeb Bush to review execution procedures in his state after a lethal injection was administered ineptly last week.
The issue could be further prolonged, Denno said, if a Marin County judge rules next month, in a separate suit by Morales, that the state adopted its lethal injection procedures illegally because the public wasn't given a chance to comment on them. That would require a new and potentially lengthy procedure, said Denno, who testified in a similar and successful lawsuit by a condemned prisoner in Kentucky.
Although much of the populace is probably indifferent to whether a prisoner suffers unnecessary pain during an execution, Denno said, "they should have, at least theoretically, some input. The public should be aware of what's going on.''
E-mail Bob Egelko at begelko@sfchronicle.com.
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