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May 4, 2011

California gives up trying to get executions started until at least 2012

As detailed in this news report, headlined "California moratorium on executions is prolonged," the Golden state "will not be ready to defend its new lethal injection procedures in court until early next year, prolonging a moratorium on executions in California that has been in effect since January 2006." Here is why:

State lawyers told a federal judge last week that San Quentin's new warden, Michael Martel, needs more time to select a new team of guards to carry out executions.

Deficiencies in staff training and supervision were among the factors cited by U.S. District Judge Jeremy Fogel when he ruled in 2006 that the state's lethal injection methods posed an undue risk of a botched execution that would leave the inmate conscious and in agony while dying....

California has over 700 condemned prisoners, more than any other state, and has put 13 men to death at San Quentin since 1992, when executions resumed after a 25-year halt. Fogel told lawyers that the public must be wondering why the case has been on hold since 2006. "All they know is that it's taking five years to get to closure in this case and it's not easy to explain well," the judge said at Friday's hearing in San Jose, according to a transcript.

Lawyers for the state and the inmates told him they would need until at least mid-December to submit a list of issues for Fogel to address at a future hearing on the revisions in staff selection, training and injection procedures. The prison has also built a new execution chamber, which Fogel visited in February....

Even if Fogel rules that the new procedures comply with the constitutional ban on cruel and unusual punishment, appeals to higher courts will almost certainly delay the next execution until at least mid-2012.

Moral:  Where there is limited will, it is often hard to find the way.

May 4, 2011 at 10:25 PM | Permalink


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"Moral: Where there is limited will, it is often hard to find the way."

And that about sums it up. California is not serious about its law, so it doesn't get implemented. Virginia is, so it does. Not a whole lot more to it than that. (Well, I supposed there is the Ninth Circuit vs. the Fourth Circuit).

Posted by: Bill Otis | May 4, 2011 10:33:44 PM

Let's see, a Governor and an Attorney General who both are personally against the death penalty who ran on a platform that they would enforce the law (except not in the near future or, apparently during their tenure). Not a single person has been executed with Harris or Brown as Attorney General and they are in no rush to change that fact.

The reality is that they love this situation with the Morales situation. They can claim to be trying to enforce the law while dragging their feet in actually getting a case to execution. It has been five years, how long does it take to train the execution team? Answer, as long as the defense and Judge Fogel will wait.

Posted by: David | May 5, 2011 12:13:31 AM

Moral: Where there is limited will, it is often hard to find the way."

Posted by: bestmishu | May 5, 2011 5:29:37 AM

I posted comments about Brown and Harris not going to carry out the death penalty during the election and some people ripped me. I will believe it when it happens.

Posted by: DaveP | May 5, 2011 6:27:06 AM


apparently Fogel is getting impatient also. He made comments on what the public thinks of these delays. Remember, the state administrative procedures along with litigation in the state court took a couple of years of this before Fogel started the case again. I would not fault Fogel for all these delays, but some of it, yes.

As for Governor Brown, who appointed the most liberal court the United States has ever seen, I would love to be proven wrong and see his administration aggressively pursue the DP in these cases that have been in court for 20-30 years now. I guess the voters forget that they REMOVED three of the justices that Brown appointed to the CA Supreme Court. On the other hand, maybe the voters found other issues more compelling.

Posted by: DaveP | May 5, 2011 11:43:44 AM


I agree that Fogel may not be too keen on being publicly blamed for the delay and might actually, someday, push the litigants into actually doing something. I am, however, pointing the finger directly at the last two AGs (mostly Brown but Harris will do the same) for dragging their feet and acquiesing in piecemeal litigation. You watch, next and only after Fogel rules, they will sit through several more years of administrative procedures litigation to change the protocol because they will not be able to get any sodium thiopental.

Posted by: David | May 5, 2011 9:53:41 PM


California does not and never has competently carried out the death penalty. As I have posted before, it has been dysfunctional since the 80's. If they need to change the drugs in the protocol, they should do it now.

Posted by: DaveP | May 6, 2011 6:21:43 AM

Perhaps Brown and Harris were elected governor and AG, respectively, in part precisely because of their histories with the DP issue. Although the DP is a contentious issue in CA., there are very many people in the state against it. The DP was a very well-publicized issue during the campaign. It's very possible that Brown and Harris were elected with the populace's knowledge, and perhaps satisfaction with, these officials' historic anti-DP stance.

Posted by: anonymous | May 6, 2011 6:40:29 PM

that is possible.

The State of California is so unorganized and incompetent when it comes to carrying out the death penalty. Back in September, they ask a superior court for a execution date for Albert Brown and he grants it. There were cases in state and federal court that had not been resolved and are still pending. Both courts would not let the execution proceed. Now, the state says it is not ready until next year to defend their protocol because they are assigning a new execution team. Assuming Fogel sides with the state, we don't know if he will grant a stay pending appeal or if the 9th Circuit will issue one. We all know how long the 9th takes to dispose of a case. This could go past 2012.

Posted by: DaveP | May 7, 2011 10:21:02 AM

The cruelty this inflicts on the victims' families is beyond appalling.

Posted by: federalist | May 7, 2011 11:45:09 AM

anonymous: fair point only if a voter ignored (as I did) what they actually said. They each said during their campaigns for AG that they would enforce the law, including specifically the death penalty, despite their personal objections.

In my view they lied to the public and are failing in their legal duty as lawyers to zealously defend the laws of the State of California for the most serious of criminal offenders: those convicted of special circumstances murder and sentenced to death.

Posted by: David | May 7, 2011 6:09:29 PM

David, surprise surprise, a Dem lawmaker lying through his teeth.

Posted by: federalist | May 8, 2011 8:23:32 AM

David and federalist --

The polling indicates that Californians support the DP by at least the same 2-1 majority that the rest of the counrtry does, if not more.


This same poll (the Field Poll), also had this interesting tidbit, which rebuts anonymous's theory that voters elected Brown and Harris because they oppose the DP:

"Voters who said they will support Democrat Jerry Brown support the death penalty by 60 percent; Republican Meg Whitman's potential voters by 81 percent. In the U.S. senate race, Democrat Barbara Boxer's supporters favor the death penalty by 58 percent; the GOP's Carly Fiorina's by 83 percent.

"In the state attorney general's race, Republican Steve Cooley's supporters favor the death penalty by 82 percent; Democrat Kamala Harris' by 53 percent."

Posted by: Bill Otis | May 9, 2011 10:08:59 AM

That is so. But I think the reality is more nuanced than that. Indeed that same poll indicates a much more conflicted populace on the DP than ever before. When those surveyed were asked if they would be in favor of LWOP or the DP, a close majority favored LWOP - not the death penalty.

As for those identifying with the candidates, I think the results of the election (as well as the very large number of undecideds right up to election night) indicate a more complex reality among voters in terms of issues (including - perhaps - the death penalty and the CDCR generally) than the July 2010 Field poll results indicated.

Posted by: anonymous | May 10, 2011 12:43:37 AM

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