Judge tours California’s rebuilt death chamber

New legal challenges threaten to further delay California’s effort to resume executions despite five years of costly reforms and reconstruction to meet a federal judge’s concerns that previous procedures might have inflicted cruel and unusual punishment.

U.S. District Judge Jeremy Fogel on Tuesday toured San Quentin State Prison’s new $900,000 execution facility, questioning state corrections authorities about the death penalty machinery and methods revised to address the concerns that led him to halt executions in 2006.

But Fogel’s earlier worries about poorly trained executioners and cramped, ill-lighted conditions in the converted gas chamber where lethal injections took place may now be overshadowed by developments in other cases.

The sole U.S. supplier of sodium thiopental — the only anesthetic allowed under the California lethal injection protocols that Fogel is evaluating — has ceased making the drug. Attorneys for six death row inmates from California, Arizona and Tennessee have sued the U.S. Food and Drug Administration for failing to inspect and approve foreign-made versions of the drug when supplies were imported by the three states.

While the outcome of that lawsuit remains uncertain, it has the potential to raise fresh legal questions that could further delay any restart of executions in California.

Asked after the formal fact-finding tour whether the suit against the FDA would factor into his decision, Fogel said, “It’s not before me” in the case involving the execution of killer Michael A. Morales that was suspended in February 2006.

“The source of the state’s sodium thiopental is something the California Supreme Court is going to be asked to weigh in on, but it is not an issue in the Morales case at this point,” Fogel said.

If the federal court in Washington, D.C., grants the prisoners’ request for an injunction against importing sodium thiopental and orders the FDA to seize shipments that entered the country without its approval — as is the case with California’s stock — the state could be forced back into the lengthy process of rewriting the execution laws. Other states’ execution protocols aren’t as specific as California’s and they have been able to substitute another anesthetic for the scarce sodium thiopental.

John Grele, a defense attorney for Morales and fellow death row inmate Albert Greenwood Brown Jr., said he hoped the sodium thiopental lawsuit would be addressed before any decisions that could lead to imposition of the death sentences against his clients.

The California Department of Corrections and Rehabilitation scheduled Brown’s execution for Sept. 30 last year, after the new legal guidelines nearly four years in the making were approved by the state in August. But Fogel ruled that the protocols needed to be reviewed for constitutional conformity and that his work wouldn’t be driven by the Oct. 1 expiration date on the state’s last few grams of U.S.-made sodium thiopental.

Lawyers for the corrections department have since informed the judge that 521 grams of the fast-acting but short-lasting anesthetic was imported from a British distributor. That quantity would be sufficient for about 90 lethal-injection executions and was acquired before the British government banned exports of the drug for capital punishment use.

California has 718 prisoners on death row, but only seven have exhausted all appeals.

On Tuesday, Fogel, leading an entourage of lawyers and experts involved in the case, went room to room in the clinic-like facility, inspecting the hand-lettered drug vials arrayed on two trays in the infusion room, where the execution drugs are to be mixed and delivered via intravenous tubes threaded through the wall of the adjacent death chamber.

Fogel said he hoped to make a decision about whether executions can proceed “as soon as possible” but set out a schedule for further hearings that will run at least through spring.

That may provide enough time for the court weighing the FDA challenge to decide whether to hear arguments on the imported sodium thiopental’s use in executions, as well as a window for capital punishment foes to try to wear down popular support for the death penalty with the argument that taxpayers can no longer afford it. Keeping a prisoner on death row costs at least three times as much as an inmate elsewhere in the corrections system, and county and state attorneys’ costs for shepherding capital cases through decades of court reviews have given even some supporters of capital punishment pause to reconsider when to seek a death sentence.

“More and more people are learning about its enormous fiscal and human costs compared with life without possibility of parole,” said Natasha Minsker, death penalty policy director for the American Civil Liberties Union of Northern California. “Life without parole provides swift and certain justice while the death penalty will cost the state $1 billion over the next five years, not counting the waste of public time and money devoted to the global search for lethal injection drugs and related legal challenges.”

Death penalty proponents, including Kent Scheidegger of the Criminal Justice Legal Foundation, point to the solid majority of Californians who support capital punishment — about 66% in recent polls — and accuse opponents of “spamming” the system with lawsuits and redundant public comments to thwart executions.

carol.williams@latimes.com