Since the death penalty was reinstated by the U. S. Supreme Court in 1976, California has executed 13 inmates. 702 convicted murderers are housed on California’s death row under sentence of death.
In February, 2006, Federal District Court Judge Jeremy Fogel placed a temporary stay on California executions. In December of the same year, Judge Fogel, after taking evidence in the case, made findings that California’s procedures for administering lethal injection were in violation of constitutional standards under the Eighth Amendment’s cruel and unusual clause. In his written opinion, Judge Fogel allowed that lethal injection executions could be performed within constitutional parameters, but that California was not within those parameters. He ordered the Department of Corrections and Rehabilitation to revise its procedures to meet constitutional muster, and, pending those revisions, put a halt to all executions in the state.
Lethal injection is performed through the administration of three drugs. Sodium thiopental is intended to induce anesthesia. Pancuronium bromide is then administered to paralyze skeletal muscle, resulting in a cessation of breathing. Finally, potassium chloride is injected to cause cardiac arrest.
Performed properly, lethal injection should result in unconsciousness within 30 seconds and death within one minute. Performed improperly, the inmate can regain consciousness, while paralyzed and unable to speak after receiving the pancuronium bromide. Improper administration results in the person going to his/her death with awareness of painfull suffocation and extremely painful burning as the potassium chloride is administered.
In 2006, California’s procedures included unqualified personnel, insufficient training of executioners and poor lighting, all leading to improper administration of lethal injection. No medically trained staff were on hand, and the inmate being executed was not monitored after the anesthetic to determine its efficacy. The legal premise behind Judge Fogel’s decision is in line with the standards set by the Supreme Court. While the imposition and execution of the death penalty have been found to be constitutional under the cruel and unusual clause, forms of execution that result in great pain and suffering to the inmate have been found to violate the cruel and unusual clause.
Since the 2006 ruling, the California Department of Corrections and Rehabilitation (CDCR) has built a new death chamber, upgraded its training and proposed new regulations. No physician has been identified who is willing to participate in the procedure. On June 8 of this year California’s Office of Administrative Law (OAL) issued a 21 page Decision of Disapproval of CDCR’s proposed new regulations. In drafting its new regulations, CDCR, according the OAL, had proposed procedures that violated existing California statute. Prior to the OAL Decision of Disapproval, the proposed regulations had been available for public review and comment pursuant to a separate state court order. That review and comment period resulted in roughly 20,000 comments from the public, mostly critical of CDCR’s proposal.
With the Decision of Disapproval from OAL, Judge Fogel’s decision remains in force and California continues its de facto moratorium on capital punishment. CDCR will either have to redraft its proposed procedures and regulations or the state legislature will be required to change California statute to comport with the regulations. In the meantime, the state’s death row population will continue to grow with no executions in sight. And, if CDCR gets it right, or the statutes are changed, it will be just the beginning as other court proceedings on particular inmates cases are on hold pending California’s response to Judge Fogel’s ruling.
CODA: I make no apologies for my opposition to the death penalty. California is but one example of the difficulty of administering capital punishment within constitutional parameters. California’s experience touches on only one of the multitude of issues with capital punishment. Concerns like taxpayer cost, quality of legal representation and uneven prosecutorial application of death penalty statutes are not addressed here. But they exist. Absolute proof of guilt and the avoidance of executing the innocent remains an issue anywhere there is capital punishment. The moral and ethical implications of sending people intentionally to their death draws much discussion. Though a majority of Americans support the death penalty, I confess that I find myself incredulous at a society that devotes its human and fiscal resources to constructing facilities called “death chambers”.
Cross posted at Elijah’s Sweete Spot.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.