In more than 100 pages of court documents, the governor and prison officials outlined how they intend to satisfy a San Jose federal judge's concerns that death row inmates do not suffer a cruel and unusual death when injected with a fatal dose of drugs. The proposed reforms do not alter the drug combination, which has drawn fire from death penalty foes and some medical journals that insist the fatal drug cocktail poses the risk of a painful death.
Instead, the governor's plan focuses on improving the process, building a new death chamber designed specifically for lethal injections and providing specialized training for execution team members, something that has not happened in the past.
California's executions have been on hold since last year, when death row inmate Michael Morales challenged the state's lethal injection procedure because it risked
violating the constitutional ban on cruel andunusual punishment. U.S. District Judge Jeremy Fogel in December concluded the state cannot resume executions until it fixes its "broken" system, prompting the governor and prison officials to come up with the plan presented Tuesday.
"I am confident
the plan submitted to Judge Fogel will address his concerns and allow the state to enforce the law of the land," Schwarzenegger said in a statement.
While the governor's plan is sure to push the court fight over lethal injection forward, it remains unclear whether it will satisfy the judge and allow the state to restart executions on a death row that now exceeds 650 inmates.
Morales' lawyers could not be reached for comment. But they previously criticized the governor's secretive approach to devising a new procedure, saying he should follow the example set by former Florida Gov. Jeb Bush, who ordered public hearings on the matter after a botched execution in that state last year.
The California case has been closely watched around the country, where death row inmates have mounted legal challenges to lethal injection in many of the 37 states that rely on the execution method.
Morales' legal attack has produced by far the most thorough examination of lethal injection, including an unprecedented four-day hearing last fall and Fogel's unusual tour of San Quentin's death chamber.
Morales, 47, on death row for the 1981 rape and murder of a 17-year-old Lodi girl, was on the brink of execution in February 2006 when Fogel granted him a reprieve while the lethal injection issue was considered.
In December's order, Fogel called the state's execution protocol "deeply disturbing," citing a number of problems, notably poor training of execution team members, sloppy handling of the fatal cocktail of drugs and San Quentin's antiquated execution chamber, the state's old gas chamber.
The judge, however, did assure the state that the problems could be fixed.
The heart of the governor's new proposal is a 94-page updated version of "Procedure 770," the prison system's guidebook for executions. The plan submitted to the judge is a point-by-point instruction manual that stretches from weeks of preparation before an execution to how to document the aftermath, as well as providing for the creation of trained execution specialists.
James Tilton, head of the state prison system, said prison officials reviewed procedures in 15 other states, and visited Virginia, Oklahoma, Indiana and the federal prison system to investigate alternatives.
"We believe we've addressed every deficiency in his order," Tilton said of Fogel's concerns.
Fogel did not order the state to construct a new execution chamber at San Quentin, but did identify the cramped, old current chamber as a factor in finding the state couldn't guarantee a humane execution. The new proposal calls for constructing a new "lethal injection facility," which was nearly completed this spring before being halted when Democratic legislators complained the governor never got prior approval for the expense. Schwarzenegger included the funding for the new chamber in this week's budget revisions.
To lethal injection critics, however, the proposal may not address the central medical argument against the practice — that the combination of the three drugs masks the potential for a searing, painful death. Under the state's method, three drugs are administered; the first to sedate the inmate, the second to paralyze the muscles in breathing and the third and fatal drug, potassium chloride, to stop the heart.
Lawyers for death row inmates argue that the second drug conceals an inmate's suffering when the third, and painful, drug is administered. Conflicting expert evidence on the subject was presented to Fogel in last fall's hearing, but the judge did conclude that the lack of safeguards created an unnecessary risk of suffering.
"It's not good enough, it's not specific enough," said Deborah Denno, a Fordham University law professor and lethal injection expert. "Their reasons for keeping this drug combination are not good enough. The fact that other states do it is not good enough."
Contact Howard Mintz at hmintz@mercurynews.com or (408) 286-0236.
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