Brown un­der pres­sure on lethal in­jec­tion

Los Angeles Times - - FRONT PAGE - By Maura Dolan

SAN FRAN­CISCO — The Supreme Court’s de­ci­sion Mon­day giv­ing a green light to an ex­e­cu­tion drug trig­gered a re­newed at­tempt in Cal­i­for­nia to cre­ate a sin­gle- drug method of lethal in­jec­tion for in­mates on Amer­ica’s largest death row.

Un­der a le­gal set­tle­ment reached ear­lier this month, Gov. Jerry Brown’s ad­min­is­tra­tion agreed to pro­pose a new lethal in­jec­tion method 120 days af­ter the Supreme Court de­cided a chal­lenge to a lethal in­jec­tion drug used in Ok­la­homa.

The de­ci­sion came Mon­day in a 5- 4 rul­ing that up­held the use of the drug, mi­da­zo­lam.

The rul­ing re­it­er­ated that ex­e­cu­tions need not be pain­less and re­quired in­mates chal­leng­ing meth­ods to iden­tify avail­able al­ter­na­tives that posed less risk of se­vere pain.

Kent Schei­deg­ger, le­gal di­rec­tor of the pro- death penalty Crim­i­nal Jus­tice Le­gal Foun­da­tion, said Mon­day’s rul­ing would make it more dif­fi­cult for chal­lengers to block Cal­i­for­nia’s new pro­to­col, which is due in late Oc­to­ber.

“It is go­ing to be very, very dif­fi­cult — prob­a­bly im­pos­si­ble — for any­one to get a stay” pro­hibit­ing the state from us­ing the new method, Schei­deg­ger said. “The de­ci­sion was a home run.”

Brown’s ad­min­is­tra­tion agreed to the dead­line af­ter Schei­deg­ger’s group sued on be­half of crime vic­tims. Court rul­ings forced the state to re­vamp its ex­e­cu­tions plans, and more than three years have passed since Brown or­dered prison of­fi­cials to cre­ate a sin­gle­drug pro­to­col.

Even with the new dead­line, though, many hur­dles re­main be­fore ex­e­cu­tions can re­sume in Cal­i­for­nia.

State law re­quires ex­ten­sive public com­ment on a new ex­e­cu­tion method, a process that could take a year.

Op­po­nents of the death penalty also might de­cide to

re­turn to the bal­lot with a mea­sure to re­place the death penalty with life with­out pa­role.

Vot­ers nar­rowly de­feated such a mea­sure in 2012.

And drug man­u­fac­tur­ers are mak­ing it in­creas­ingly dif­fi­cult for pris­ons to ob­tain lethal drugs for ex­e­cu­tions.

Schei­deg­ger and other death penalty sup­port­ers fa­vor ex­e­cut­ing in­mates with a lethal dose of pen­to­bar­bi­tal, a drug that vet­eri­nar­i­ans use to eu­th­a­nize an­i­mals.

Although Ok­la­homa com­plained that it no longer could get pen­to­bar­bi­tal, any com­pound­ing phar­macy could make it, said Ford­ham Univer­sity School of Law pro­fes­sor Deb­o­rah W. Denno, who has been study­ing lethal in­jec­tion for two decades.

“You could build a phar­macy in your prison,” Denno said.

The Supreme Court’s de­ci­sion could have un­in­tended con­se­quences, she said.

She ques­tioned, for in­stance, what would hap­pen if a Cal­i­for­nia in­mate pro­posed a fir­ing squad as an al­ter­na­tive to a sin­gle- drug lethal ex­e­cu­tion.

“In some ways, the de­ci­sion has closed off doors but might be open­ing up other kinds of things that may not have been an­tic­i­pated,” she said.

UC Berke­ley law pro­fes­sor Elisabeth Semel — who heads a law school death penalty clinic that rep­re­sents con­demned in­mates — said Cal­i­for­nia will be un­veil­ing a new ex­e­cu­tion method at time when there is “pro­found am­biva­lence about ex­e­cu­tions in this state.”

“We came very close to re­peal,” she said.

Any­one who con­sid­ers Cal­i­for­nia’s re­sump­tion of ex­e­cu­tions “needs also to con­tem­plate the fact that this means we are go­ing to put to death 750 peo­ple” — the ap­prox­i­mate num­ber on death row — “which I don’t think any­one has the ap­petite for,” she said.

Although death penalty sup­port­ers ap­plauded Mon­day’s rul­ing, Semel said the case un­der­scored a pro­found di­vi­sion over the is­sue on the court. Jus­tices Stephen Breyer and Ruth Bader Gins­burg sug­gested that the court should re­ex­am­ine whether cap­i­tal pun­ish­ment it­self is con­sti­tu­tional, given changed cir­cum­stances and new ev­i­dence.

In a dis­sent joined by Gins­burg, Breyer cited “in­creas­ingly lengthy de­lays” of sev­eral decades be­tween con­vic­tion and ex­e­cu­tion, pas­sages of time that he said un­der­mine ar­gu­ments that ex­e­cu­tions de­ter crimes.

In­mates on death row in Cal­i­for­nia are more likely to die of old age than the ex­e­cu­tioner’s nee­dle.

A case now be­fore the U. S. 9th Cir­cuit Court of Ap­peals will de­ter­mine whether the decades- long de­lays in ex­e­cu­tions in Cal­i­for­nia ren­der the state’s sys­tem un­con­sti­tu­tional.

U. S. Dis­trict Judge Cor­mac J. Car­ney, an ap­pointee of for­mer Pres­i­dent Ge­orge W. Bush, cited the de­lays and the ar­bi­trary na­ture of ex­e­cu­tions in a rul­ing last sum­mer that de­clared Cal­i­for­nia’s death penalty un­con­sti­tu­tional.

Atty. Gen. Ka­mala D. Harris ap­pealed, and a three- judge panel will hear ar­gu­ments in Au­gust.

Ana Zamora, a lawyer with the ACLU of North­ern Cal­i­for­nia, said op­po­nents of the death penalty are weigh­ing all op­tions, in­clud­ing another bal­lot mea­sure. Even with the death penalty on the books, Cal­i­for­nia is likely to have trou­ble en­forc­ing it, she said.

“The state has spent the last 10 years try­ing to cre­ate a legally sound ex­e­cu­tion pro­to­col, but they have failed re­peat­edly,” Zamora said.

“There is no ev­i­dence to sug­gest that this time around will be any dif­fer­ent.”

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