Gov. Arnold Schwarzenegger on Monday ordered his administration to fix problems in California's lethal injection protocol "to ensure the death penalty procedure is constitutional."
Schwarzenegger acted in response to a stinging decision issued Friday by U.S. District Judge Jeremy Fogel in San Jose, who said the state's system "is broken, but ... can be fixed."
"I am committed to doing whatever it takes to ensure that the lethal injection process is constitutional so that the will of the people is followed and the death penalty is maintained in California," Schwarzenegger said in a formal statement. "My administration will take immediate action to resolve court concerns which have cast legal doubt on California's procedure for carrying out the death penalty."
Fogel, who earlier visited the death chamber in San Quentin and held a four-day hearing in September, said the evidence "is more than adequate to establish" that the state's implementation of its lethal injection procedure violates the Constitution's prohibition against cruel and unusual punishment. The judge gave state officials 30 days to let him know what they planned to do and he urged the governor to get involved.
Fogel listed a number of serious problems with how the death penalty is implemented in California, including inconsistent and unreliable screening of execution team members; poorly trained staff; inconsistent and unreliable recordkeeping of drugs used in the process; improper mixing, preparation and administration of drugs by the execution team; overcrowded conditions; and poorly designed facilities in which the execution team must work. He also blasted state personnel involved in the process for a "pervasive lack of professionalism."
California's current lethal injection procedure, like that in three dozen other states, calls for a three-drug process. The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to render the condemned inmate unconscious before the second two drugs -- pancuronium bromide, which paralyzes the body, and potassium chloride, which causes cardiac arrest -- are administered.
Fogel's ruling was in response to a lawsuit filed earlier this year by condemned inmate Michael Morales, who has been on death row at San Quentin State Prison for nearly a quarter-century after being convicted of murdering Lodi teenager Terri Winchell with a claw hammer in 1981. The thrust of Morales' suit is that the state does not properly administer enough sodium thiopental to deaden the pain of the potassium chloride.
The suit contends that a condemned man would be unable to scream out in pain because he has been paralyzed by the second drug.
"Anomalies in six execution logs raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected," Fogel wrote in his decision Friday. In addition, he said that Dr. Robert Singler, the state's medical expert in the lethal injection case, said that another condemned inmate "well may have been awake when he was injected with potassium chloride" during his March 27, 2001, execution.
On Monday, Schwarzenegger issued a statement indicating that the judge's stern message had resonated with him.
The governor said his top legal and correctional officials "will lead an effort to implement a screening process and undertake a comprehensive training program for execution team members, create standardized recordkeeping, recommend how to improve the death penalty facility and identify the best experts in other states to advise the California Department of Corrections and Rehabilitation on lethal injection and its implementation."
Schwarzenegger "is appropriately assuming responsibility for correcting the deficiencies in the state's protocol," said Fordham University law professor Deborah Denno, an expert on methods of punishment who has followed the California case closely. "At the same time, it is unclear whether the governor will order hearings of the type requested" by Morales' attorneys in a companion case in Marin County Superior Court, Denno said.
In that case, Morales' attorneys contended that state officials "unilaterally adopted the ... protocol in complete disregard for California's Administrative Procedure Act," which established the procedures by which agencies may adopt regulations.
The California attorney general's office contends that the act does not apply to the adoption of the lethal injection protocol.
A hearing is expected to be held on the issue early next year.
"It would be a huge development if they had to do this publicly," said Ginger Anders, a Washington, D.C., attorney who is one of Morales' lawyers.
Denno said she thought it would be advisable to hold public hearings when the state adopts a new lethal injection protocol rather than doing it in private. She said that would be a better way for the governor's office to develop a protocol "that rectifies the problems that have dogged lethal injection," which has been used in California since 1996, starting with the execution of "Freeway Killer" William Bonin.
In his ruling Friday, Fogel noted that he had urged the state to seriously reexamine the procedure last February, when Morales' execution was postponed because of the lethal injection challenge.
However, the judge said that "although more significant modifications were proposed" by participants in a Feb. 28 meeting at the governor's office, "the governor's legal affairs secretary concluded that the only change that would be undertaken at the time was what was described as a 'tweak' of the chemical aspects of the protocol.... There is no indication that the participants in the meeting addressed or considered issues related to the selection and training of the execution team, the administration of the drugs, the monitoring of executions or the quality of execution logs and other pertinent records."
On Monday, Schwarzenegger said he had asked his legal affairs secretary, Andrea Lynn Hoch, to work with the Corrections Department to address those concerns in the next 30 days. He said state officials would take the following five steps:
* Establish a screening process for selection of execution team members and a periodic review process for team members.
* Establish a comprehensive training program for all members of the execution team so all are familiar with the drugs being used, their preparation and the risks associated with them.
* Develop standardized recordkeeping to ensure that there are complete and reliable records of each execution.
* Recommend how to improve the death penalty facility at San Quentin, which was switched from a gas chamber to a lethal injection chamber, to ensure there is adequate equipment, lighting and space for the execution team members to perform their functions.
* Identify the best experts in other states to advise the Corrections Department on the lethal injection protocol and its implementation.