CALIFORNIA DEATH PENALTY

New execution method under scrutiny by death penalty opponents

By Howard Mintz

San Jose Mercury News
January 21, 2016

As California moves forward Friday with a crucial public hearing to air its new lethal injection procedures, death penalty foes are taking aim at the details in a plan that could lead to the resumption of executions after a 10-year hiatus.

Calling the reforms "human experimentation," the American Civil Liberties Union and other death penalty critics say California's Department of Corrections and Rehabilitation has proposed revised lethal injection methods that will lead to the type of botched executions that have plagued other states.

"The proposed regulation is replete with legal, ethical, medical and logistical problems," said Megan McCracken, a lethal injection expert with UC Berkeley law school's death penalty clinic.

State prison officials in November proposed an elaborate new execution procedure in an attempt to resolve a decade of legal battles over the state's execution method, with the centerpiece being a switch from a three-drug lethal cocktail to a single drug to put condemned killers to death.

Death penalty supporters, however, say the criticism is just an effort to thwart executions.
"Having failed for decades to convince the people of their view that the death penalty is wrong, their strategy is to make it impractical and then argue for repeal on the grounds of practicality," said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.

Under administrative rules the state must follow to enact the new procedures, prison leaders have received thousands of comments on the proposal and will hold a public hearing Friday in Sacramento. The lethal injection reforms, if approved, would likely take effect in November -- when voters also will be asked to decide a ballot measure that seeks to abolish the death penalty.

California is following the lead of many other states with lethal injection by choosing to opt for a single sedative to execute death row inmates. The new procedure includes four drug options: amobarbital, pentobarbital, secobarbital and thiopental.

But death penalty opponents readying for Friday's hearing say two of those drugs, amobarbital and secobarbital, have never been used in executions, accusing the state of taking the risk of experimenting on the state's 750 death row inmates.

In addition, critics of the state's plan note that California's procedures do not include any specifics on how prison officials will obtain these drugs for lethal injections -- a problem in other death penalty states that have had trouble securing a supply since pharmaceutical companies several years ago balked at providing them for executions.

"It's a huge question mark," said Ana Zamora, the ACLU's criminal justice policy director.

Death penalty supporters say the groups are putting up invalid roadblocks to executions. For example, Scheidegger said it is irrelevant that some of the drugs have not been used before because there is sufficient medical evidence they are lethal and "produce a less painful death than traditional methods of execution."

He added that state methods of securing a drug supply do not belong in the regulations.

State prison officials dispute that the regulations do not include mention of drug supply. In one passage, prison officials note that the drugs can be produced in the prison system's pharmacies, by other state-run pharmacies or obtained from private sources.

Legal experts say California will have to provide details in its proposal on how it will secure execution drugs, because the overall plan must still survive court review. A San Francisco federal judge at some point is expected to consider the legality of the state's new procedures.

"Traditionally, of course, requiring drug sources has not been part of a lethal injection protocol," said Deborah Denno, a lethal injection expert at Fordham University law school. "But the past few years have shown us that that drug-acquisition information is critically important."

EDITOR’S NOTE: It is quite clear that the only lethal injection method acceptable to the ACLU and other anti-death penalty groups is no lethal injections, period.

Texas has been using a single dose of pentobarbital without any problems. And it has solved the acquisition problem by having its own prison pharmacists compound the pentobarbital.

Even if the courts approve California’s new lethal injection protocol, the opponents of capital punishment will keep death penalty cases tied up in the courts on appeals to the extent that hell will freeze over before they can stick a needle in the arm of anyone awaiting execution.