In court papers, Schwarzenegger says he wants to keep process secret until proposal is finalized by May 15
By Howard Mintz
Gov. Arnold Schwarzenegger told a San Jose federal judge Tuesday that the state will come up with a detailed, revised lethal-injection procedure by May 15 to address concerns that California's execution system is "broken."
In court papers, the governor did not expand upon his statements of last month, when he instructed top officials in his administration to come up with a plan to overhaul the state's approach to lethal injections. But Schwarzenegger assured U.S. District Judge Jeremy Fogel that his office is moving forward with an effort to "make certain" the execution process is constitutional.
The governor's filing is a direct response to an order issued in December by Fogel, who put executions on hold indefinitely because the state's lethal-injection procedure has so many flaws that it risks violating the Constitution's ban on cruel and unusual punishment.
In his ruling, Fogel called the state's execution protocol "deeply disturbing" and its execution method "broken." He found that a range of problems, from poor training of execution team members to sloppy handling of the fatal cocktail of drugs, must be corrected to ensure lethal injection is constitutional in California.
But Fogel told the state that its procedure could be "fixed," inviting the governor to come up with a plan to correct the flaws. The governor ordered state officials to examine a number of key areas, including improved training of execution team members, updating San Quentin's antiquated death chamber and doing a better job of record keeping in monitoring executions.
In court papers filed Tuesday, the governor's office told Fogel it wants to keep the process of developing a new execution procedure secret until it can finalize a plan. Lawyers for death row inmates have attempted to question state officials on the process as part of a separate legal challenge in the state courts. They contend that the state has violated the law by changing the execution method without public input.
John Grele, a lawyer for death row inmate Michael Morales, expects to oppose the state's attempt to keep the process of overhauling the procedure from public scrutiny.
"It's a little disturbing they want to do it in secret," Grele said.
California has more than 650 inmates on death row, but executions have been halted since February, when Fogel began considering the lethal-injection issue. California is one of a growing number of states that have halted executions as courts weigh challenges to lethal injection. Florida Gov. Jeb Bush declared a moratorium on executions in his state after a botched lethal injection in December.
The U.S. Supreme Court, which has never outlawed an execution method, is expected to address the issue at some point, and many legal experts say the Morales case could be the best opportunity because it turned up an unprecedented amount of evidence on how lethal injection works.
The 47-year-old Morales, on death row for the 1981 rape and murder of a 17-year-old Lodi girl, was on the brink of execution in February when Fogel granted him a reprieve while the lethal-injection issue was considered. Fogel toured San Quentin's death chamber and held an unprecedented hearing in the fall to consider evidence from Morales' lawyers and the state on how prison officials handle the grim task of putting a condemned inmate to death.
Among other things, the judge has expressed concern about evidence suggesting inmates may have suffered in some recent California executions, including that of former Crips co-founder Stanley "Tookie" Williams.
Lawyers for death row inmates insist the combination of three drugs used to execute a prisoner mask the potential for searing pain that would amount to cruel and unusual punishment. State officials have insisted the execution method is humane.