Despite a top prosecutor’s prediction that executions could resume this year in California -- at a rate of one a month -- the state still faces significant legal hurdles before it can send more inmates to their deaths, legal experts said Wednesday.
Chief Assistant Atty. Gen. Dane Gillette said the U.S. Supreme Court ruling upholding Kentucky’s use of lethal injection should help persuade a federal judge to end the state’s two-year moratorium on executions. Gillette has defended California’s lethal-injection procedure against the federal court challenge that triggered the moratorium.
Resuming executions this year “means a lot of things falling our way, but I think that is entirely possible,” Gillette said.
Defense lawyers were skeptical.
In addition to the challenge pending in federal court in San Jose, a state appeals court is reviewing a ruling that California broke the law by failing to seek public comment on new procedures for carrying out the death penalty.
“There’s a lot for the state of California to consider before they can schedule Christmas executions,” said David Senior, a lawyer for death row inmate Michael Morales, whose challenge of lethal injection is pending before U.S. District Judge Jeremy Fogel.
Senior noted that the state court case could eventually be appealed to the California Supreme Court, delaying executions further. If the state lost, it would be forced to submit its execution procedures for public comment before anyone could be put to death, Senior said.
Santa Clara University law professor Ellen Kreitzberg agreed that the challenges “certainly are not going to be resolved quickly.”
She said Fogel still could hold extensive hearings on California’s execution practices. When Fogel struck down the state’s previous execution protocol, he found problems with six of 13 executions. The problems focused on doubts that inmates had been properly anesthetized before they were paralyzed and then killed.
“So that fact doesn’t go away” just because the Supreme Court upheld Kentucky’s lethal-injection methods, she said.
Although Kentucky and California use the same three drugs to put inmates to death, the California challenge has produced substantial evidence that officials monitor executions inadequately, she said.
“I think the state still has a fair showing they are going to have to make to Judge Fogel about how they are going to administer these drugs and how they are going to monitor to make sure every inmate is properly anesthetized,” Kreitzberg said.
But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims rights group, said Fogel would be “hard-pressed” to continue the moratorium after Wednesday’s high court decision.
More than 650 people are on California’s death row. Gillette said five inmates have completed their appeals and can be executed as soon as the courts resolve the litigation.
Fogel ruled in December 2006 that lethal injection in California violated the constitutional ban on cruel and unusual punishment. He said executions were performed in a dark, cramped room by men and women who knew little about the drugs they administered.
In response to that ruling, the state revised its execution protocol and built a new death chamber.
A hearing before Fogel is scheduled in June.
The state’s last execution was of Clarence Allen in January 2006. A month later, state officials, in a dramatic 11th-hour turnaround, called off the execution of Morales, who has been on death row for more than 20 years for the murder of Lodi teenager Terri Winchell.