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December 27, 2011

"California executions remain in everlasting limbo"

The title of this post is the headline of this new piece in the San Jose Mercury News.  Here are excerpts:

As California nears its sixth year without an execution, state officials find themselves once again grappling with a judge's order that concludes they've botched crafting a new and legal method of putting condemned killers to death by lethal injection.

For the third time during the six-year moratorium on executions, a judge has ordered the state back to square one in creating new lethal injection procedures. The development all but ensures San Quentin's death chamber will remain dormant until at least well into 2013.

The timing could be important: The issue will draw heightened debate next year against the backdrop of a ballot measure designed to repeal the death penalty and replace it with life in prison without the possibility of parole.

And last week, California Supreme Court Chief Justice Tani Cantil-Sakauye added her voice to the debate, telling the Los Angeles Times the death penalty is "not effective" and needs an overhaul the state cannot afford....

Death penalty foes have pounced quickly on a Marin judge's order earlier this month scrapping California's latest version of its lethal-injection method. They cite it as another example of why voters should do away with a seldom-used punishment on the state's 720-inmate death row, the nation's largest.

Meanwhile, death penalty advocates find the state's lengthening pattern of bungled bids to kick-start executions maddening. "Some frustration is an understatement," said Kent Scheidegger, executive director of the Criminal Justice Legal Foundation, a leading death penalty group....

The latest roadblock to executions is part of two separate but related legal challenges unfolding in the state and federal courts. In last week's order, Marin County Superior Court Judge Faye D'Opal found California failed to follow proper state administrative procedures when it adopted a new lethal-injection procedure in 2010.... D'Opal identified numerous flaws in the state's method but singled out the fact that prison officials failed to explain why they did not choose a single-drug method that involves using a fatal dose of a sedative to execute the condemned. California's own expert recommended using that method to replace the three-drug combination used in past executions, which has been challenged because of concerns the third and final paralytic drug can mask an inmate's pain before death.

Two states, Ohio and Washington, have already opted for the single-drug option. And as early as 2006, San Jose U.S. District Judge Jeremy Fogel essentially invited California to resolve the legal challenge to lethal injection by switching to the single-drug method because it would eliminate worries about the effect of the third drug. But California stuck to the three-drug method -- and finds itself back at the drawing board....

Scheidegger has urged state prisons chief Matthew Cate to adopt the single-drug method to move executions forward. And he maintains that state officials can end run the administrative process by citing "operational needs" to avoid further delays. "All he has to do," Scheidegger said, "is click his ruby slippers and say, 'one drug, operational needs.' There is no excuse for holding up justice any longer."

The story of California's abject inability to reform its lethal injection protocol successfully in the last six years is both sad and comical.  In the end, it is very hard not to think that many state actors are really not much interested in getting its machinery of death operational again.   

December 27, 2011 at 10:58 AM | Permalink


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Is there a mystery here? For example, the judge gives authorities the correct answer to the test, single drug protocol. They still give the wrong answer. Why? When death row is emptied by large numbers of executions, will their jobs be more necessary or less necessary. This is akin to assigning the development of a polio vaccine to an iron lung specialist. No expertise in the subject, economic conflict of interest.

Kent should be attacking lawyers more personally with the rent seeking theory.

What needs explanation is why the lawyer is acting so stupid, or perhaps it is not acting.

Posted by: Supremacy Claus | Dec 27, 2011 11:23:40 AM


the last paragraph says it all. It is a shame all the killers who have benefited from these delays will probably never be executed. All those summary reversals of 9th Circuit opinions for nothing.

Posted by: DaveP | Dec 27, 2011 4:42:06 PM

I feel for the victims' families. These a**holes have sentenced them to even more suffering.

Posted by: federalist | Dec 27, 2011 5:42:19 PM

DaveP has it just right. Here in Virginia, we have few problems with either expense or delay. The state is running a surplus, and if you get a death sentence, in an average of seven years, you're done.

As ever in life, where there's a will, there's a way. We really didn't care for the Beltway Sniper so we got rid of him. Other states don't follow this example because, as DaveP says, they simply don't want to -- or at least they don't want to with all the vigor it takes to overcome all these dilatory and bad-faith last-minute suits.

As this state shows, the way to deal with the dysfunction of the DP is not to end it, but to put the bite on the sources of that dysfunction.

Posted by: Bill Otis | Dec 27, 2011 5:44:03 PM

California is not just "sad and comical", they are grossly incompetent. Too many state "actors" is right on the spot.

Posted by: DaveP | Dec 27, 2011 7:28:31 PM

I'm feel a little embarrassed to admit that I thought this would be resolved by the end of 2008.

Posted by: MikeinCT | Dec 27, 2011 7:51:36 PM


a lot of people thought Baze would clear the way for the states to conduct executions without delay. However, several states like California, Kentucky and Maryland can't get the protocol accepted. I doubt there will ever be executions in CA and MD due to the Governors in power there among other issues.

Then there is Tennessee, Arkansas, and Missouri.

By the way, does it really cost California between $70k-200K to have an execution?

Posted by: DaveP | Dec 27, 2011 8:01:17 PM

It costs California way more than “$70k-200K” to “have” an execution. Multiply that range by at least 15, and you may be getting close to the right cost neighborhood.

Posted by: Cali. Capital Defense Atty. | Dec 27, 2011 11:29:38 PM


I assumed the price tag was for costs after the execution was ordered. That is a huge range to estimate costs. If a real business did that, it would be out. Who knows what it costs for the 20 plus years it takes to get there. When I read 9th Circuit opinions, a lot of the cases started in federal district court around 2000-2001.

Bottom line is that the economy is helping the anti-DP movement at this time.

Posted by: DaveP | Dec 28, 2011 8:26:49 AM


If each LWOP sentence cost a million bucks, and each execution cost ten cents, would you then favor execution?

Of course not.


Because what counts before anything else is justice, not money. What I would ask you to understand is that that same principle carries as much weight with DaveP, MikeinCT, federalist and me (not to mention the great majority of voters and taxpayers) as it does with you.

Posted by: Bill Otis | Dec 28, 2011 5:25:56 PM


I think the sheer numbers of California's death row is influencing opinion on the cost. Between the protocol issues, the backlog of attorneys handling direct and postconviction appeals and the length of time it takes to conclude federal appeals, it is not surprising that even the conservatives on the CA Supreme Court are questioning the future of the DP in their state. 720 inmates is a lot of litigation even if the LI protocols are perfected some day. All of us could have a lengthy debate on whose fault it is.

Again, it is a shame that killers like Morales, Belmontes, Cooper, and others might escape the needle because of Calfornia's ineptitude and the economy.

Posted by: DaveP | Dec 28, 2011 8:05:41 PM

I oppose the death penalty on numerous grounds. I oppose it on moral grounds. But, the morality argument is not going to convince death penalty supporters, who believe they hold the moral high ground.

Justices Stevens and Blackmun, who were both appointed by relatively conservative presidents, eventually came to conclude that the death penalty simply cannot be administered in a rational, fair manner. Death penalty supporters ought to give respectful consideration to the conclusion those two Justices ultimately came to, and the reasons identified by those Justices for coming to that conclusion. (Stevens and Blackmun both voted to uphold death penalty judgments in numerous cases before coming to the conclusion that it can't be justly administered.)

Death penalty supporters really ought to give serious consideration to the economic argument against the death penalty. As the new Chief Justice of the California Supreme Court recently noted, the State of California simply cannot afford to implement changes to the State’s death penalty scheme that administrators deem necessary. (The new CJ is a former prosecutor; she’s married to a cop; she’s not a bleeding heart liberal.) LWOP means LWOP. So, the death penalty is not necessary to attain justice. LWOP provides justice and protection of society. And, the average LWOP sentence costs way, way less than the average death sentence. It is a simple matter of California not being able to afford the death penalty scheme any more. We’re broke. We gotta cut spending. Eliminating the DP will save the State millions. Read the economic analysis concerning the proposed initiative to elimate the death penalty in California.

Posted by: Cali. Capital Defense Atty. | Dec 29, 2011 7:11:21 AM


I respect your opinion. Good post. I don't think any of the justices who affirmed Proffitt, Gregg, and Jurek had any idea of the amount of litigation that these cases ended up producing, even to this day.

I agree that California should consider this for themselves. However, I cannot believe the incompetence they have shown and the inability to enforce their own laws. Six years and still no approved protocol. The victims families deserve more.

Posted by: DaveP | Dec 29, 2011 8:24:00 AM

"I oppose the death penalty on numerous grounds. I oppose it on moral grounds. But, the morality argument is not going to convince death penalty supporters, who believe they hold the moral high ground."

Fine. But you never delve into the morality of yanking the rug out from under victims' families. As for costs, it would be cheaper now simply to execute the 12 who have exhausted their appeals. But you wouldn't like that--so obviously costs aren't the categorical imperative.

And as for respectful consideration to Justice Stevens' view--um no. Read his Baze opinion. It's just plain silly. Why should I respect his view? On the death penalty, Stevens is a babbling idiot.

Posted by: federalist | Dec 29, 2011 11:03:41 AM

In addition to what federalist has said, I would note what CCDA omits. It is true, as he says, that Stevens and Blackmun wound up opposing the DP. In addition, so did Brennan and Marshall. That makes four.

What CCDA omits is any mention of other 108 who have served on the SCOTUS during the nation's history, every one of whom either accepted or actively supported the DP.

So why is it that DP backers should give "respectful consideration" to the views of the four, but DP opponents get to just walk past the views of the 108?

Posted by: Bill Otis | Dec 29, 2011 5:26:55 PM

White, Douglas, and Stewart were part of the plurality in Furman.

How often did the Court address death penalty issues in the 18th and 19th centuries, and in the first half+ of the 20th century?

Posted by: Cali. Capital Defense Atty. | Dec 31, 2011 4:43:32 AM

CCDC, why should we give ANY respect to Stevens on the DP, given the ridiculousness of his opinion in Baze.

Posted by: federalist | Dec 31, 2011 9:51:53 AM


In contrast to your posts, Stevens' opinion in Baze, and Stevens' opinions in general (Raich excepted), are lucid, coherent, and convincing.

Posted by: Calif. Capital Defense Counsel | Dec 31, 2011 11:47:07 PM

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