Executions unlikely the rest of the year

Times Staff Writer

It became clear Friday that another execution in California this year is highly unlikely because of ongoing legal challenges to the state’s lethal injection procedure.

U.S. District Judge Jeremy Fogel, who has been presiding over those challenges in San Jose federal court, scheduled hearings Oct. 1 and Oct. 2 on challenges to the procedure, filed by condemned inmate Michael Morales and Pacific News Service.

Fogel also said he would not issue rulings on those challenges until a companion lawsuit, which alleges that state officials violated the California Administrative Procedure Act when they devised the execution protocol, is resolved by a Superior Court judge in Marin County. It could take until the end of September for briefings in that case to be completed.


“I don’t want to make a decision on this case and then have the state court pull the rug out” by ruling that the California Department of Corrections and Rehabilitation violated state law in devising the protocol. If there was such a decision, it would take about “half a year” for further hearings on a new protocol, Deputy Atty. Gen. Michael Quinn said in court Friday.

Fogel made it clear that he wanted to proceed expeditiously, but he also acknowledged that however he rules, he will not have the last word. The judge said he “wants to get this case out of the trial court as soon as possible and into the court of appeal,” a reference to the fact that his decision undoubtedly will be appealed to the U.S. 9th Circuit Court of Appeals and then probably to the U.S. Supreme Court.

There has been a court-ordered moratorium on executions in California since February, when Morales’ pending execution for the 1981 slaying of a Lodi teenager was halted by a federal court challenge to the state’s lethal injection procedure.

California’s procedure calls for a three-drug cocktail. The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to render the condemned inmate unconscious before the other two drugs -- pancuronium bromide, which paralyzes the body, and potassium chloride, which causes cardiac arrest -- are administered.

In December, Fogel ruled that the way California applies its lethal injection procedure violates the constitutional prohibition against cruel and unusual punishment. The threshold issue in the case, Fogel wrote, is whether the procedure, as administered, “provides constitutionally adequate assurance that condemned inmates will be unconscious when they are injected” with the second and third drugs. Evidence generated in the case filed by Morales’ lawyers “is more than adequate to establish a constitutional violation,” Fogel wrote in his 17-page decision.

The judge said there were a number of “critical deficiencies” in how the state administers the procedure. Among them were inconsistent and unreliable screening of execution team members; a lack of meaningful training for the team; improper mixing of the first drug; and inadequate lighting, overcrowded conditions and poorly designed facilities in which the execution team must work.

On May 15, state officials submitted a new protocol to Fogel, saying the changes “will result in the dignified end of life” for condemned inmates.

The officials said they would stick to the three-drug protocol but would adjust the doses and train prison staff to ensure that inmates are thoroughly unconscious before the final painful drugs are given.

Ginger Anders, one of Morales’ attorneys, countered that the new protocol “does not meaningfully address the problems” listed in Fogel’s December ruling.

The state also said it plans to complete construction of a larger, better-lighted death chamber designed specifically for lethal injection executions; the old facility was built in 1937 as the state’s gas chamber. A controversy arose earlier this year after construction of the new chamber was launched by Corrections Department officials without seeking approval from the Legislature. The project was 80% completed when Gov. Arnold Schwarzenegger ordered work to halt. The department has now submitted a proposal to complete the work as part of the state budget revision process.

In court Friday, Fogel made it clear that he would not rule on the lethal injection challenge until he was able to visit the completed death chamber. He emphasized that he “did not order construction of a new execution chamber,” because such an action was the prerogative of the other branches of government.

But the chamber is not the sole issue, he emphasized. “The court ultimately has to decide whether the entire package [of proposed changes] addressed the constitutional concerns” listed in his December ruling, Fogel said.

Since the state has submitted a new protocol, Fogel asked attorneys for Morales and Pacific News Service to amend their challenges to the old protocol within 30 days.

Pacific News’ suit asserts that the use of pancuronium bromide, which causes paralysis and makes it impossible for an inmate to cry out if conscious and experiencing pain, violates the 1st Amendment rights of the public to fully witness an execution in California.

Ajay S. Krishnan, Pacific News’ lawyer, said he would amend the suit, but added, “The core of our complaint remains the same.... We have no reason to believe that pancuronium bromide will not conceal” whether the inmate is experiencing an unconstitutional level of pain.