ACLU wins access to 12,000 pages of internal prison documents on California’s plans for lethal injection

More legal battles are expected as the state proceeds to try to restart the death chamber at San Quentin Prison. Litigation has put executions on hold since 2006.
(Wally Skalij / Los Angeles Times)

A court fight delaying approval of a new method for executing inmates in California ended this week with the release of 12,000 pages of internal prison documents about the state’s plans for lethal injection.

The American Civil Liberties Union of Northern California, which went to court in November to obtain the documents, said it would make them public early next week. The legal standoff ended when the California Supreme Court on Wednesday rejected a request by the Department of Corrections and Rehabilitation to intervene in the case.


For the Record:


May 10, 4:55 p.m.: A previous version of this article said that 12,000 internal prison documents would be released. It is 12,000 pages of documents.


Prison authorities unveiled the new, single-drug execution protocol in early November, but the litigation forced the state to extend the public comment period by about seven months.

The court fight is likely to be one of many as the state proceeds to try to restart the death chamber at San Quentin Prison. Litigation has put executions on hold since 2006.

Kent Scheidegger, a director of the pro-death penalty Criminal Justice Legal Foundation, accused the ACLU of using the records’ request to delay approval of the new protocol and to dig up ammunition for another lawsuit to prevent the state from going forward.

“They have succeeded in getting a Superior Court judge to allow them to use the Public Records Act as a device to ridiculously extend this public comment period,” Scheidegger said. “I think they want more information to launch a lawsuit” against the new protocol.

The ACLU said it needed the records to comment on the proposed protocol and to prevent botched executions.


Ana Zamora, the group’s criminal justice policy director, said two of four possible barbiturates the state has proposed for executions — amobarbital and secobarbital — have never been used in executions.

Amobarbital, once thought to be a truth serum, has hypnotic and sedative properties. Secobarbital has been used in physician-assisted suicide, but Zamora said it is typically taken orally and there are questions about whether it can be injected in a potent amount.

The state’s plan to use compounding pharmacies also concerns the group because she said they are not licensed by the U.S. Food and Drug Administration. An ineffective drug could result in a prolonged and inhumane execution, opponents of capital punishment say.

The corrections department “aggressively fought to withhold these documents for months even after the court determined that these 12,000 pages must be turned over,” Zamora said.

She said the ACLU has not had time yet to analyze or even read all of records, many of which the group must redact under a court order.

“We have just been dealing with the sheer volume and the redacting,” she said, adding that the documents arrived in 800 PDF attachments not long after the state high court declined to review the case.


The ACLU asked for the documents in August and September, arguing the California Public Records Act compelled their production. The group wanted them ahead of the prison department’s announcement of the new execution protocol.

After failing to obtain most of the records, the group sued the state.

A Marin County judge reviewed the requested records and ruled that some must be made public. Communications between prison authorities and Gov. Jerry Brown were private, the judge said, but other records were subject to public disclosure.

Prison officials asked the California Supreme Court to overturn the lower court. They argued the records were protected by the legal privilege provided to lawyers and their clients.

In the meantime, opponents of capital punishment have submitted signatures for a Nov. 8 ballot measure that would end the death penalty and replace it with life without parole.

Signatures for a counterinitiative that proponents say would help speed up executions have not yet been submitted. A spokesman for the pro-death penalty measure said the signatures will be turned in within the next several days, and he expects the measure to qualify.

Scheidegger, frustrated by continuing delays in the capital punishment process, said the state must finalize the execution protocol one year after public comment.


“They have to address every single comment that is made,” Scheidegger said, “and they might not make it.”

Twitter: @mauradolan


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