California Gov. plan to resume executions

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Schwarzenegger proposes new death chamber, training for executions

PLAN AIMED AT CONVINCING JUDGE THAT SYSTEM ISN'T CRUEL AND UNUSUAL

By Howard Mintz
Mercury News
San Jose Mercury NewsArticle Launched:05/ 15/2007 03:08:24 PM PDT

Gov. Arnold Schwarzenegger today unveiled his plan to resume executions in California, overhauling the prison system's lethal injection procedures in hopes of persuading a federal judge that condemned inmates can be put to death without violating their constitutional rights.

In more than 100 pages of documents filed with U.S. District Judge Jeremy Fogel, the Schwarzenegger Administration outlined how it intends to ensure that the state's death row inmates do not suffer a cruel and unusual death when they are administered a fatal dose of drugs. The proposed reforms range from building a new death chamber at San Quentin designed specifically for lethal injections to 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 has so many flaws that it risks violating the constitutional ban on cruel and unusual punishment. The San Jose-based 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 today.

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 immediately reached for comment, but have criticized Schwarzenegger' s approach because he has not held public hearings to devise a new procedure.

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.

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 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, which is the state's old gas chamber.

The judge, however, did inform 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 previous version, challenged in court, was a sparsely detailed plan for carrying out 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.

The proposal also calls for constructing a new "lethal injection facility" at San Quentin, which already got under way this spring before being halted when Democratic legislators complained that it was being built without 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 searingly 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 - 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.

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State offers new lethal injection protocol
Seeking to end a judge's ban on executions, officials propose a 'pain-free' method.

By Henry Weinstein; Los Angeles Times Staff Writer
May 16, 2007

Aiming to end a court-imposed moratorium on capital punishment in California, the Schwarzenegger administration Tuesday proposed new procedures to execute inmates by lethal injection, saying the changes "will result in the dignified end of life" for condemned inmates.

The state, in papers submitted in response to a court challenge to lethal injection, said officials would stick to the three-drug protocol that has been blamed for excruciatingly painful deaths of inmates nationwide. But officials said they would adjust the doses and train prison staff to ensure that inmates are thoroughly unconscious before the final painful drugs are given.

The state also plans to complete construction of a larger, better-lighted death chamber designed specifically for lethal injection executions, unlike the old facility, which was built in 1937 as the state's gas chamber.

On Tuesday, Gov. Arnold Schwarzenegger' s legal affairs secretary, Andrea L. Hoch, and James Tilton, director of the California Department of Corrections and Rehabilitation, said the new protocol addressed all the issues U.S. District Judge Jeremy Fogel raised in finding that the state's previous procedures violated the constitutional ban on cruel and unusual punishment.

And Schwarzenegger issued a statement saying, "I am committed to doing whatever it takes to ensure that the lethal injection process is constitutional so the will of the people is upheld."

But lawyers for Michael Morales, the condemned killer whose challenge to lethal injection led to Fogel's ruling, made it clear they will challenge the new protocol in court.

"The protocol still fails to conform to the standards for euthanasia of animals established by the American Veterinary Medical Assn. and does not meaningfully address the problems described by Judge Fogel" in his decision, said Washington, D.C., attorney Ginger Anders, one of Morales' lawyers.

Morales has been on death row for a quarter of a century for the 1981 murder of Lodi teenager Terri Winchell. Fogel halted his execution 15 months ago, hours before he was to die, because of the inmate's challenge. Executions have been on hold since then, while Fogel conducted a lengthy investigation into lethal injection procedures.

Fogel ruled in December that the state's application of its death penalty law was broken, but said it could be fixed. He urged the governor to propose remedial action. California and three dozen other states use a three-drug cocktail. Opponents argue that officials often fail to properly sedate inmates with a barbiturate against the searing pain of the final heart-stopping chemical. The inmate's reaction to the pain is masked by the intermediate drug, a paralytic, they say.

A national study published in the Public Library of Science journal PloS Medicine in April found that two of the three drugs used in lethal injection are not administered properly to reliably ensure a humane death.

State officials said Tuesday that they had considered switching to a single-chemical protocol. But they instead proposed to "substantially revise" the three-drug protocol.

They said the changes would "assure that the condemned inmate is rendered unconscious" by the first drug, a fast-acting barbiturate, and would remain unconscious during the injection of pancuronium bromide, which paralyzes the inmate, and potassium chloride, which causes cardiac arrest.

Under the new protocol, the state will administer less sodium thiopental — 3 grams rather than 5, more pancuronium bromide — 50 milligrams rather than 40, and less potassium chloride — 200 milliliters rather than 240. The state's papers did not explain the reason for the dosage changes. Fogel had also faulted state officials for inconsistent and unreliable screening of execution team members; poorly trained staff; inconsistent and unreliable recordkeeping; improper mixing, preparation and administration of drugs; overcrowded conditions; and poorly designed facilities. He also chastised state personnel for a "pervasive lack of professionalism."

On Tuesday, in documents to be submitted to the court and in a news conference, Tilton and Hoch said all those concerns were addressed in the new protocol. Tilton said the state was creating a 20-person lethal injection team at San Quentin State Prison. All members will be volunteers who have lodged no stress claims, have good disciplinary records and have not worked in the condemned-housing unit during the previous year.

All team members will undergo at least six training sessions before a scheduled execution. Part of the team will be assigned to security, another unit will inject drugs into the inmate and another will keep records.

State officials acknowledged Tuesday that earlier versions of the protocol "made no provisions for any objective assessment of consciousness of the condemned inmate following administration of the sodium thiopental, and prior to the administration of the other chemicals."

Hoch said that the warden and a licensed vocational nurse would be in the death chamber with the inmate to make sure that the inmate was unconscious and that the execution was proceeding properly.

The protocol states there are reliable methods for assessing consciousness, including "talking to and gently shaking the inmate, as well as lightly brushing the eyelash."

Deborah Denno, a Fordham University law professor and death penalty foe who has testified as an expert witness in other lethal injection cases, questioned whether a licensed vocational nurse is competent to assess a condemned inmate's anesthetic depth.

In court documents, the state said that the use of only one chemical also has disadvantages: "Since no other jurisdiction uses only one chemical, the protocol remains untested. The use of only a barbiturate would likely result in involuntary muscle movement, with unpredictable consequences. Finally, the execution may take an extended period of time."

The state said the advantages of retaining the three-drug protocol are that all of the other states use it and that its lethality "is unquestioned, and when properly administered, the protocol will result in a pain-free, dignified end of life for the condemned inmate."

But Anders said the state's continued use of the paralytic, pancuronium bromide, "will ensure that no one knows if the inmate regains consciousness after it is administered."

The California corrections department started erecting a new death chamber this year, but halted work last month after legislators objected that they had not been properly informed about the project. Tilton said about 80% of the work has been done, but its completion has to be approved by the Legislature.

He also said that state officials had visited state prisons in Virginia, Oklahoma and Indiana, where lethal injections are performed, as well as the federal prison in Terre Haute, Ind., where Timothy McVeigh was executed, to help develop their proposal.

The federal lethal injection procedure, however, is also the subject of a court challenge.

Judge Fogel has scheduled a June 1 status conference in the Morales case.

It's unclear when the judge will rule on the state's plan, and until he does, there will be no executions in California.