Lieber files amicus brief re death penalty procedures.

Lieber files amicus brief re death penalty procedures.

Brief voices opposition to state request for secrecy in developing new death penalty procedures

By: Speaker pro Tempore Sally Lieber's office Published: Feb 24, 2007 at 08:41 Speaker pro Tempore Sally Lieber (D-San Jose) has filed an amicus brief opposing the state government's efforts to develop a new execution protocol behind closed doors in the case of Morales v. Tilton. The brief protests a joint motion filed by Governor Schwarzenegger and the Department of Corrections and Rehabilitation (CDCR) requesting a protective order, which would prevent the disclosure of any document or information revealed during the revision process. "No aspect of the administration of the death penalty can be conducted in private if the State seeks to legitimize its continued use," writes Lieber. On December 15, 2006, U.S. Judge Jeremy Fogel tentatively ruled that the procedure was unconstitutional, because California's current protocol for administering lethal injections has the potential to "create an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment." Specifically, the Judge found that executioners have been poorly trained, have worked in dim, cramped quarters, and have failed to properly mix the lethal drugs used to put prisoners to death, all of which could lead to condemned inmates' suffering. He added that the procedure "lacks both reliability and transparency." Nevertheless, he noted that the issue of constitutionality could be resolved by the state if the procedure is revised and more humane practices are adopted. The Schwarzenegger administration has filed a motion for a protective order in the case, allowing the Department of Corrections and Rehabilitation to investigate and revise the lethal injection process privately and then present the completed plan to the court. The administration claims that the order is a needed protection from burdensome discovery demands. In her brief, Lieber further argues that public oversight is essential in the short term, to ensure transparency, and in the long term, for jurists and legislators dealing with death penalty issues to assess the validity of the review process. "Given the overwhelming presumption in favor of open government, for defendants to seek a protective order merely in anticipation of discovery and information requests is unjustifiable and a perversion of the intent of the State's Constitution," Lieber wrote. Michael Morales was set to be executed by lethal injection in February 2006; however, the execution was postponed over doubts raised about the constitutionality of the lethal injection procedure. The postponement has resulted in a moratorium on the California death penalty until those issues are addressed. The use of lethal injection has been halted in 11 of the 37 states that allow capital punishment over constitutionality issues. In late 2006, Florida's Ex-Governor Jeb Bush issued an Executive Order creating the Commission on Administration of Lethal Injection after a botched execution where witnesses said that the condemned inmate appeared to be in pain after the administration of the drugs. He declared a moratorium on executions until the Commission investigates the problem and reports back to the Governor's office. The Order declares that all hearings and proceedings of the Commission are to be open to the public. There are currently over 650 inmates on California's death row, the largest of any state in the nation.