A step closer to start­ing ex­e­cu­tions

In set­tling a law­suit by vic­tims’ fam­i­lies, Cal­i­for­nia agrees to un­veil a new method of lethal in­jec­tion.

Los Angeles Times - - CALIFORNIA - MAURA DOLAN maura.dolan@la­times.com Twit­ter: @mau­radolan

SAN FRAN­CISCO — Nearly a decade af­ter the state last ex­e­cuted a prisoner, Cal­i­for­nia has agreed to a set­tle­ment that moves the state closer to restart­ing the death cham­ber.

The set­tle­ment of a law­suit brought by crime vic­tims’ fam­i­lies re­quires Gov. Jerry Brown’s ad­min­is­tra­tion to un­veil a new method of lethal in­jec­tion this year. That method, which Brown of­fi­cials said would be a sin­gle-drug lethal in­jec­tion, will be sub­ject to public com­ment and court chal­lenges.

If the plan sur­vives the scru­tiny and lit­i­ga­tion, it still could be stymied by dif­fi­culty in ob­tain­ing drugs needed for ex­e­cu­tions. Man­u­fac­tur­ers, pressed by death penalty op­po­nents, are re­fus­ing to sell drugs for ex­e­cu­tions. Com­pound­ing phar­ma­cies, an­other pos­si­ble source of the drugs, also could have trou­ble procur­ing the nec­es­sary chem­i­cals to make them.

Still, the set­tle­ment re­mains the first break­through in a years-long hia­tus in ex­e­cu­tions in Cal­i­for­nia. It is likely to reignite the de­bate over cap­i­tal pun­ish­ment in the state and test the re­solve of the Brown ad­min­is­tra­tion. Brown per­son­ally op­poses cap­i­tal pun­ish­ment but de­fended the death penalty when he was at­tor­ney gen­eral.

Af­ter los­ing pretrial mo­tions in the case, Brown’s ad­min­is­tra­tion agreed to pro­pose a new method of lethal in­jec­tion within 120 days of a Supreme Court de­ci­sion on Ok­la­homa’s three-drug method of ex­e­cu­tion. That rul­ing, ex­pected later this month, will de­ter­mine whether one of the drugs used in Ok­la­homa vi­o­lates a con­sti­tu­tional ban on cruel and un­usual pun­ish­ment.

Op­po­nents of the death penalty, caught off guard by Tues­day’s an­nounce­ment, said they ex­pected any new pro­posal to fail.

“Cal­i­for­nia hasn’t car­ried out an ex­e­cu­tion in al­most 10 years at this point,” said Ana Zamora of the ACLU of North­ern Cal­i­for­nia, “and any ef­fort to change the ex­e­cu­tion pro­to­col is doomed to fail and guar­an­teed to bring more legal chal­lenges, more de­lays and cost more money.”

Robert Dun­ham, ex­ec­u­tive direc­tor the Death Penalty In­for­ma­tion Cen­ter, agreed that any new pro­to­col would prob­a­bly face law­suits. So far this year, 14 in­mates have been ex­e­cuted in other states with ei­ther im­ported drugs or chem­i­cals made in com­pound­ing phar­ma­cies, Dun­ham said. An­other ex­e­cu­tion was sched­uled in Texas for Wed­nes­day.

Texas, Ge­or­gia and Mis­souri ex­e­cute in­mates with a sin­gle in­jec­tion of pen­to­bar­bi­tal, a bar­bi­tu­rate used in an­i­mal eu­thana­sia that can be pro­duced by some com­pound­ing phar­ma­cies.

Kent Schei­deg­ger, legal direc­tor of the pro-death penalty Crim­i­nal Jus­tice Legal Foun­da­tion, ex­pressed hope that the state pro­posal would pro­vide for al­ter­na­tives should one drug or an­other be­come un­avail­able.

He con­ceded the like­li­hood of law­suits, “but if pen­to­bar­bi­tal is the pro­to­col, I think their chances of get­ting a stay on that are close to nil.” The set­tle­ment was reached just as Schei­deg­ger’s group, which filed the law­suit, was seek­ing in­ter­nal doc­u­ments from the state to de­ter­mine what work it had done on de­vel­op­ing a new ex­e­cu­tion method.

Brown or­dered the pri­son depart­ment to de­vise a new lethal in­jec­tion method more than three years ago. A spokesman for the Cal­i­for­nia Depart­ment of Cor­rec­tions and Re­ha­bil­i­ta­tion blamed the de­lay on un­cer­tainty as to whether drugs would be avail­able for ex­e­cu­tions.

“They said they were start­ing to work on it three years ago,” Schei­deg­ger said. “How much they have ac­tu­ally worked on it and how much they let it sit, I do not know. I wish the whole thing had gone faster — I re­gret I had to file this suit at all — but this is what it took.”

A fed­eral judge in 2006 found that the state’s pre­vi­ous three-drug method could cause ex­ces­sive suf­fer­ing in vi­o­la­tion of the Con­sti­tu­tion. The state pro­posed an­other method and re­mod­eled its ex­e­cu­tion cham­ber, but a state ap­peals court said Cal­i­for­nia vi­o­lated an ad­min­is­tra­tive pro­ce­dures act by fail­ing to vet the new pro­to­col prop­erly.

Schei­deg­ger’s group sued on be­half of for­mer UCLA and NFL star Ker­mit Alexander, whose mother, sis­ter and neph­ews were killed, and Bradley S. Winchell, whose sis­ter was killed by in­mates now on death row. Alexander and Winchell ar­gued that the pri­son depart­ment was vi­o­lat­ing state law by fail­ing to es­tab­lish a lethal in­jec­tion pro­to­col.

Cal­i­for­nia has 749 in­mates on death row, the most in the coun­try. More than a dozen have ex­hausted their ap­peals. Since 1978, Cal­i­for­nia has ex­e­cuted 13 in­mates, 66 have died from nat­u­ral causes and 24 have com­mit­ted sui­cide.

The state’s vot­ers nar­rowly de­feated a bal­lot mea­sure in 2012 that would have abol­ished the death penalty. Eight states have re­scinded death penalty laws since 2000, most re­cently, Ne­braska.

Wally Skalij Los An­ge­les Times

CAL­I­FOR­NIA hasn’t car­ried out an ex­e­cu­tion in nearly a decade. The state re­mod­eled the death cham­ber, but an ap­peals court said vet­ting was not proper.

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