FEATURE: California's Lethal Dilemma

FEATURE:

California's Lethal Dilemma
Judge decries state's death penalty procedure—but can it be fixed?
By Oliver M. Style

Five grams of sodium pentothal to induce a state of unconsciousness. Fifty cubic centimeters of pancuronium bromide to stop all non-cardiomuscular movement, causing paralysis and collapse of the diaphragm. Fifty cubic centimeters of potassium chloride to stop the heart from beating.

Result: Cardiac arrest, death.

This concoction of death-dealing chemicals is the final, irrevocable step in a carefully choreographed plan to dismantle the life of a condemned prisoner. It is the only remaining method of execution in California.

There are some people who believe the death penalty serves the purpose of justified retribution for those who commit capital crimes, and that lethal injection is the most humane way to end a life.

“[Lethal injection] is not cruel and inhumane,” said William Rusty Hubbarth, vice president of Justice For All, a Texas-based pro-death penalty organization. “It is incredibly humane to execute a convicted murderer basically using the same process as [killing] a beloved Labrador, and there is no flaw in that.”

However, many others—including lawmakers—now agree that the lethal injection procedure often fails to produce the quick and painless death extolled by its proponents. Following a series of high-profile botched executions, including one last year which took Florida prison officials over 35 minutes and an additional dose of drugs to kill 55-year-old Ángel Nieves Díaz, states are now facing what may turn out to be the most significant legal challenge to capital punishment in years. The bungled execution in Florida prompted Governor Jeb Bush to suspend all executions in the state until an independent commission can review lethal injection standards.

California has since followed suit. This past December, a federal judge declared the current lethal injection system as “broken,” and placed all executions in California on hold until officials can satisfactorily revise procedures to comply with the constitutional ban on cruel and unusual punishment.

The decision to examine the Department of Corrections’ existing lethal injection protocol first came 11 months earlier, when the United States District Court for the Northern District of California granted convicted rapist and murderer Michael Angelos Morales a stay of execution to hear his Eighth Amendment challenge. The 47-year-old Morales was hours away from execution when news of the court’s reprieve interrupted preparations for the procedure.

The looming debate as to whether lethal injections constitute mistreatment in the eye of the law poses a serious dilemma for government officials charged with refining the process to meet a legal standard. And it begs the question: will the practice of executing criminals, regardless of the method of application, ever be considered humane?

Mona Cadena, the Western region deputy director for Amnesty International USA, a non-profit organization staunchly opposed to all forms of capital punishment, believes that the death penalty system, as a human institution, is undeniably prone to errors. She agreed with U.S. District Judge Jeremy Fogel’s verdict questioning the implementation of death sentences in California.

“The judge said that California’s procedure lacks reliability and transparency,” Cadena said in an interview with City on a Hill Press (CHP). “We’ve seen botched executions across the country, and so I think it’s really great that our lawmakers, our policy makers, [and] our judges are starting to ask questions about whether or not the death penalty is an appropriate punishment for us to use.”

Apart from creating an instant stir among death penalty opponents, who interpreted it as a de facto indicator that the state’s judiciary is steadily leaning toward abolition, the judge’s ruling also affected California’s 657 death row inmates—by far the largest death row population in the United States—currently awaiting their own date with the gurney at San Quentin and Chowchilla state prisons.

Stefanie Faucher, program director for Death Penalty Focus, a California-based group dedicated to abolishing the death penalty, emphasized the importance of the court’s judgment in alerting the greater public to what the organization feels are “inherent” flaws in the state’s capital punishment system.

“We frequently say support for the death penalty, especially in California, is a mile wide but only an inch deep, and that as soon as individuals get one or two facts they immediately begin to reject the death penalty as a solution to crime and as a public policy,” Faucher said. “We recognize that this is only the beginning of a conversation about the death penalty because we believe the entire system is broken, not just the administration of lethal injections.”

However, it appears likely that anti-death penalty advocates are celebrating prematurely. Bill Sessa, a spokesperson for the California Department of Corrections and Rehabilitation, cautioned the public not to misconstrue Judge Fogel’s ruling. He pointed out that the purpose of the case was to revise the lethal injection procedure rather than abolish the method altogether.

“The ruling from the judge was not on the constitutionality of execution, and nor was it a judgment on whether lethal injection is constitutional,” Sessa said. “The judge’s order required us to come up with new procedures to meet a constitutional standard, and so the death penalty itself is not under attack, the method of execution is not—it is the manner in which we perform the procedure itself that is under attack in the court.”

Among the deficiencies deemed most egregious in Judge Fogel’s resolution were the state’s negligent attitude toward the hiring of execution team members and the poor conditions within California’s designated execution facilities—San Quentin for male prisoners and Chowchilla’s Central California Women’s Facility for female prisoners. He highlighted the worrying scarcity of knowledge exhibited by executioners about the drugs involved in the lethal injection process and what to do if problems arise during the procedure.

Although Judge Fogel’s 17-page decision described the “pervasive lack of professional-ism” in California’s death penalty system as “deeply disturbing,” he stressed that, if changes are implemented properly, the state’s execution method can be fixed.

Elisabeth Semel, a UC Berkeley law professor and director of the university’s Death Penalty Clinic, noted that the judge’s “roadmap” gave officials a significant amount of leeway in providing a suitable remedy for the state’s death penalty woes.

“When you read not only the memorandum [Judge Fogel] issued in December but the orders he’s issued over the course of the case, he’s made it clear that he does not view this as a challenge to the death penalty writ at large,” Semel said. “I think it would be very presumptuous and mistaken to read into anything he’s done as a suggestion that he desires to put a halt to executions in California.”

The provenance of capital punishment in California can be traced to its authorization under the Criminal Practices Act of 1851 and incorporation into the state’s penal code on Feb. 14, 1872. According to the Death Penalty Information Center, a total of 709 prisoners were hanged or subjected to lethal gas prior to 1967. Only 13 people have been executed by the state since then, partly due to changes in California’s death penalty statute affording prisoners a longer appeals process. Lethal injection became the state’s sole method of execution after a 1994 U.S. District Court decision ruled that the gas chamber was cruel and unusual punishment and thus in violation of the Eighth Amendment.

The United States sits among a minority of countries that still retain the death penalty as a form of punishment. Amnesty International lists a total of 128 abolitionist nations that choose to forgo capital punishment in law or in practice—a large figure compared to the 69 nations identified as retentionist. However, foreign countries and intergovernmental organizations such as the European Union have historically failed to influence U.S. policy on the death penalty issue.

Professor Semel attributes this to the federal government’s reluctance to tamper with state-delegated responsibilities.

“One of the things about the death penalty in the United States that is so different from the phenomenon in any other country is our form of federalism,” Semel said. “Because the way the criminal justice system functions is a uniquely state phenomenon, it takes a whole heck of a lot for anything to happen at a national level that changes the death penalty.”

California is therefore more likely to take a cue from domestic—rather than foreign—counterparts when it comes to enacting change in its own death penalty system. The biggest blip on the radar is currently emanating from New Jersey, where the state-mandated New Jersey Death Penalty Study Commission issued a final report to the legislature on Jan. 2. In its assessment, the 13-member committee recommended that the death penalty in New Jersey be abolished and replaced with life imprisonment without the possibility of parole.

“Our report was delivered…to the majority and minority leaders in both houses of the [New Jersey] legislature and to the governor,” said Reverend M. William Howard, Jr., chairman of the New Jersey Death Penalty Study Commission. “I think it’s virtually certain that we will have a different law on the books than the one we have now, and I think there is a good chance that the death penalty in New Jersey will be abolished.”

Reverend Howard, who was selected by New Jersey Governor Jon S. Corzine to head the committee in 2006, made it clear that, despite the myriad philosophical arguments surrounding the death penalty, his commission was responsible for answering seven specific questions considered most urgent by the state legislature. These areas of focus were largely related to uncertainties regarding the penological interest of capital punishment in New Jersey.

“We were really not called upon to make particularly moral judgments, which, inciden-tally, would [have made] our report more easily refuted,” Rev. Howard said. “We were looking at things like evidence of deterrence, cost, [and] the feasibility of error. All of the experts that we invited to testify…were asked in separate public meetings to comment on these specific questions and to provide documentation on these specific questions.”

In addition to concluding that the death penalty does not serve as a deterrent against capital crimes, the commission also determined that the costs of placing someone on death row tend to exceed those of sentencing a prisoner to life in jail without parole. It was suggested that any cost savings derived from abolition should be channeled toward services and benefits for survivors of victims of homicide instead. The report’s sixth finding stated, “The penological interest in executing a small number of persons guilty of murder is not sufficiently compelling to justify the risk of making an irreversible mistake.”

Although the California State Senate recently established the Commission on the Fair Administration of Justice to examine a slew of inadequacies in the state’s criminal justice system, it was not charged like the New Jersey Death Penalty Study Commission with the specific task of scrutinizing California’s prevailing method of execution.

“Currently, we’re looking at forensic science issues, and we’re going to take up prosecutorial misconduct and defense lawyer incompetence, and then we’ll get to the death penalty,” said Gerald Uelman, executive director of the California Commission on the Fair Administration of Justice and professor of law at Santa Clara University. “[But] we’re not actually looking at the execution protocol. That’s not an issue we’re addressing.”

Since the release of Judge Fogel’s verdict in December, state officials from the Attorney General’s Office filed a response declaring their intention to revise California’s lethal injection procedures by May 15, 2007.

It remains to be seen whether the court will accept the amended protocol or ultimately declare the method unconstitutional. Although anti-death penalty groups would prefer to see the end of lethal injection as a form of execution, they view complete abolition as the penultimate challenge to the failures of capital punishment.

“We don’t believe that there is a fix [for the death penalty system],” Death Penalty Focus’ Stefanie Faucher said. “It is not a good use of public resources; it hasn’t ever been proven to be a deterrent to crime, though we have an alternative already in place in California, which is life without parole. [It] accomplishes the same penological interest that the death penalty seeks to accomplish but without the added risks of irreversible error.”