California’s new lethal injection protocol tossed by judge

A judge on Friday threw out California’s new lethal injection protocols, which have been five years in the making, because corrections officials failed to consider a one-drug execution method now in practice in other death penalty states.

In ruling that the new protocols were “invalid,” Marin County Superior Court Judge Faye D’Opal noted that one of the state’s own experts recommended the single injection method as being superior to the three-drug sequence approved last year.

State officials now must decide whether to appeal D’Opal’s ruling or again revise the lethal injection procedures that were deemed unconstitutional by a federal judge in 2006. The ruling — at least for now, experts say — appears to halt a federal judge’s review of whether the changes to the state procedures are sufficient to allow executions to resume after a six-year suspension.

D’Opal criticized the state for ignoring many requirements of the law on revising official procedures, saying that officials failed even to explain why they rejected the one-drug method.


The legal challenge to the revised procedures was brought by condemned inmate Mitchell Sims, who has been on death row for 24 years for the 1985 killings of three Domino’s pizza employees, including a deliveryman in Glendale. Sims is one of only a dozen among California’s 722 condemned inmates who have exhausted all appeals and are eligible for a death warrant.

Atty. Gen. Kamala D. Harris’ spokeswoman, Lynda Gledhill, said the question of whether to appeal was still under review and that a decision would probably be guided by “what our client wants to do,” referring to the California Department of Corrections and Rehabilitation.

Department spokeswoman Terry Thornton said corrections officials had no immediate comment.

The last execution in the state was in January 2006, when 76-year-old Clarence Ray Allen was put to death. A month later, U.S. District Judge Jeremy Fogel halted the scheduled lethal injection of convicted murderer Michael A. Morales because of concerns that some of the 13 men put to death in California since 1978 may have experienced excessive pain.

Lawyers for death row inmates presented expert witnesses who testified in Fogel’s court that sodium thiopental, the first drug in the three-injection sequence, might not have fully anesthetized some of the inmates, subjecting them to intense pain from the paralytic pancuronium bromide and the final shot of potassium chloride that stops the heart.

Fogel has since left his seat on the federal bench in Northern California, and his successor in the case last month agreed to put off review until at least late next year.

Meanwhile, the sole U.S. manufacturer of sodium thiopental stopped producing it last year, and condemned inmates have challenged the legality of foreign-produced anesthesia for its lack of U.S. Food and Drug Administration certification.

Ohio and Oklahoma have replaced sodium thiopental with more readily available Pentobarbital. Ohio and Washington have also changed from the three-drug execution method to a single, massive dose of fast-acting anesthesia that renders the inmate unconscious while his heart stops beating.


Kent Scheidegger, legal director for the pro-death-penalty Criminal Justice Legal Foundation, said the effect of D’Opal’s ruling will depend on whether Harris acts diligently to appeal it.

“How much delay it will cause depends on how seriously the current administration takes its responsibility to enforce the rights of crime victims guaranteed by the California Constitution,” Scheidegger said.

Death penalty opponents hailed D’Opal’s decision as an opportunity for Californians to reconsider capital punishment.

“The time has come to replace the death penalty with life in prison with no chance of parole,” said Natasha Minsker, an American Civil Liberties Union lawyer and campaign manager for a voter initiative to repeal the death penalty. “Any attempt to devise new lethal injection rules will take an enormous amount of public employee time and cost hundreds of millions of dollars.”


Minsker said the ACLU has filed numerous public records requests for information on the amount of money the state has spent in the effort to create a legal framework for executions — a sum she estimates as at least double-digit millions. Neither the attorney general’s office nor corrections officials have complied with those requests, Minsker said.

A study published earlier this year by U.S. 9th Circuit Court of Appeals Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell said taxpayers have spent $4 billion to carry out 13 executions since 1978 and at least $184 million a year to maintain death row and the capital defense system.