News outlets sue state over execution plans
The Times and others say new protocol intentionally limits public oversight of lethal injections.
California news media organizations sued the state Wednesday to make public all portions of executions, including the preparation of the deadly chemical used for lethal injection.
The Times and two Bay Area media outlets said California’s execution protocol “intentionally places critical portions of the execution beyond public observation.”
A new death chamber at San Quentin State Prison provides for no public viewing of the “Infusion Control Room,” where the drugs are prepared and administered, the suit said.
The lethal injection regulations also require a curtain on the viewing window to the execution room to be closed and the public address system turned off if the inmate does not die after receiving three doses of the lethal chemicals.
“The public is thereby prevented from observing defendants’ response when the execution does not proceed as intended,” the suit said.
The complaint, filed in the Northern California federal district court, asks for an injunction to prevent the state from carrying out executions unless they are truly public.
The suit said that regulations established by the Department of Corrections and Rehabilitation deny the public’s right to know whether execution staff properly prepare and administer the lethal chemical; the name of the chemical used; the number of doses; how the inmate reacts to each dose; and how effectively the execution team performs — particularly if the execution does not proceed as planned.
“In contrast to other methods of executions, executions by lethal injection involve more numerous and more complex steps and procedures — resulting in much greater room for error,” the suit said.
California finalized its new lethal injection regulations in January. They require executioners to use a single chemical, either pentobarbital or thiopental.
The warden of San Quentin selects the chemical, and nothing in the regulations requires prison officials to reveal which chemical is used, the suit said.
Food and Drug Administration-approved manufacturers of pentobarbital have prohibited its use in executions, and thiopental is not available domestically, nor can it be lawfully imported into the country.
“The public and press have an interest in understanding whether defendants are conducting executions with a drug that is not lawfully available in this country,” the suit said.
The case is likely to be assigned to U.S. District Judge Richard Seeborg, an Obama appointee who is already overseeing a challenge to lethal injection in California.
In addition to The Times, the other plaintiffs are KQED, a nonprofit media organization that operates public radio and television stations, and the San Francisco Progressive Media Center, a nonprofit that publishes the website 48hills.com.
Thomas R. Burke, who is representing The Times in the case, said the state could resolve the case without adding to already existing delays in executions or building a new execution chamber.
“All they have to do is to carry out the execution in a way that people can watch and listen to it,” Burke said.
A spokeswoman for the Department of Corrections and Rehabilitation said the department had not yet been served with the suit.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty, said the organization has no problem with requiring the state to keep the curtain open if an inmate fails to die and must receive medical attention.
But he said the lawsuit could be viewed as an attempt to prevent executions.
“Frankly, I think the L.A. Times is on thin ethical ice by potentially becoming a combatant in the effort to prevent the resumption of justice in California capital cases,” he wrote in an email.
Scheidegger’s group joined prosecutors in winning passage of Proposition 66 in 2016, which was intended to speed up executions. No one has been executed in California since 2006.
A federal judge found the state’s former three-drug method of executions unconstitutional and ordered the state to stop executions until safeguards were in place. That injunction remains in place.
California has the largest death row in the nation, with nearly 750 condemned inmates.
The Death Penalty Information Center, which collects information about the death penalty and views it critically, says there have been dozens of botched executions in the United States using lethal injection.