Deadly serious business

Deadly serious business

State officials try to make implementation of capital punishment ‘humane’

By Heather Posey , Joe Piasecki 02/15/2007

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Had Michael Morales been put to death last year for the rape and stabbing death of a 17-year-old girl in 1981, his execution, according to court records, would have happened something like this:

Six hours before midnight at San Quentin State Prison, the 46-year-old Morales would be strip-searched then given new clothes to wear before being locked inside a small holding cell. Three hours later, Morales’ last hope for a reprieve would likely be denied, and he would be led next door into an octagonal-shaped room with a padded green gurney — really, a former gas chamber converted into a makeshift, quasi-clinical lethal-injection room, with holes drilled into the table to accommodate intravenous lines and a metal hook from which to hang the cocktail of drugs designed to kill him.

In a minute, the prison’s execution team would start searching for a vein on his shackled, outstretched arm. If past experiences are any indication, he would have noticeably flinched in pain as they plunged the needle into his arm, according to a chilling though incomplete account of past executions filed in federal court. From there, sodium thiopental would be injected intravenously in order to put Morales to sleep. After that, pancuronium bromide would be added to paralyze his muscles, including his diaphragm, preventing him from breathing. Next, a dose of potassium chloride would stop his heart.  After a few minutes, his body would spasm and his stomach would contract. Finally, after nearly two decades behind bars, Morales would be dead.

But Morales isn’t dead.

He’s very much alive, thanks largely to a federal judge’s decision in January to temporarily halt the executions of 650 men on California’s Death Row until it can be definitely determined that condemned prisoners will not suffer unreasonably, in violation of the Eighth Amendment’s protections against cruel and unusual punishment, when they are put to death by the state.

The reason Morales was spared is the same reason why US District Judge Jeremy Fogel ordered a temporary moratorium on the practice of lethal injection, which is used in 37 of the 38 states that employ capital punishment: Licensed medical personnel have refused to participate in this macabre state-sanctioned ritual due to ethical concerns. After all, doctors are sworn to heal, not kill people, and few California doctors are willing to help the state carry out its grisly, though still hugely popular practice of executing condemned prisoners.

But it’s important not to get the wrong idea. Fogel didn’t say the death penalty was wrong, per se, just possibly too painful to satisfy the Constitution.

To that end, a special commission chaired by former state attorney general, onetime gubernatorial candidate and longtime Pasadena resident John Van de Kamp is examining the state’s capital punishment process to learn how — if it’s even possible — to fix it.

The California Commission on the Fair Administration of Justice isn’t expected to study methods of execution, as was the focus of Fogel’s 15-page ruling which determined that mistakes were made or suffering was caused in at least six of the state’s past 13 executions.

“What we’re going to be doing is trying to shed some light on how the death penalty is administered — [including] the delays, of which there are plenty, the costs involved with it — and try to get out a factual report,” said Van de Kamp, who recently headed a Pasadena task force on campaign finance reform. “We are looking at the administration of the law itself. The chief justice has called the administration of the death penalty dysfunctional, and my sense is he’s probably right.”

Wouldn’t recommend it

So far, the commission has recommended new law enforcement standards aimed at eliminating eyewitness misidentifications and false confessions, and is expected later this month to release a report on guidelines for procedures dealing with DNA evidence.

“The notion here is to try to put in practices that are apt to reduce the chances of a wrongful conviction. That touches on all cases, but that touches on death penalty cases, too, in a fundamental way,” said Van de Kamp, who is personally opposed to capital punishment.

Members of the commission include Los Angeles Sherriff Lee Baca, LAPD Chief William Bratton, LA Human Relations Commission Executive Director Rabbi Allen Freehling, state Attorney General Jerry Brown and nearly 20 others.

Both the commission’s eyewitness and confessions reports led to bills that passed the state Legislature last year but were vetoed by Gov. Arnold Schwarzenegger. 

The governor, who has overseen three executions, also last year used his line-item veto power to block funding to the Southern California Innocence Project and a San Francisco-based counterpart that examines questionable convictions, pointed out Democratic state Assemblywoman Sally Lieber, author of a bill that sought a temporary moratorium on executions until the commission finished its report. That bill failed to gain enough support to pass the Legislature last year.

Lieber said due to Fogel’s decision she isn’t planning on reintroducing the bill anytime soon, but made clear her personal distaste for state-sponsored killing.

“The reason I laude Judge Fogel’s decision is that the state has apparently been using a method of execution that masks the physical pain. I think that, No. 1, the intentional killing of a person is immoral, and there’s no way to get around that. It is an inherently immoral act. And to do so in a way that masks the physical pain of an individual from the witnesses compounds that immorality,” she said.

Unlike most who argue for or against the merits of executions, Lieber’s condemnation of capital punishment is based on experience. Weeks before submitting her bill to the Legislature, she attended last year’s Martin Luther King Jr. Day execution of 76-year-old Clarence Ray Allen, who was convicted of the shotgun and strangulation murders of four people.

“It was very disturbing,” she said of witnessing the execution. “Can’t say I would recommend it to anyone else.”

Thirty-four minutes

In his Dec. 15 ruling, Fogel outlined a number of problems with the administration of the death penalty, among them spotty administration of lethal drugs by poorly trained staff and unreliable record-keeping involving accounts of how executions were performed.

Fogel made his decision after records of California executions suggested that inmates were still moving and breathing when they should be unconscious. He also found execution chambers to be poorly lit and overcrowded, resulting in failures to follow instructions on administering the drug.

One of the more shocking discoveries to come out of the case was that one execution team member had actually been caught smuggling drugs into the prison. Fogel was so outraged by this information and reports that barbiturates stockpiled at San Quentin for use during executions were being taken by guards and sold that he urged launching a criminal investigation.

Less than a week after that ruling, Schwarzenegger publicly ordered state officials to consult with experts in order to implement reforms called for by the court. Such reforms include establishing a screening process and training program for execution team members, developing a system of maintaining detailed records for executions, and devising improvements to what Fogel called San Quentin’s “cramped and antiquated” death chamber.

On Jan. 16, Schwarzenegger filed legal papers with Fogel asserting he had already moved to improved standards for execution record-keeping and methods of selecting execution team members. But, according to a report by the Los Angeles Times, he is also asking for the judge to issue a protective order that would keep deliberations secret, and a hearing on that is expected to occur on or before Feb. 16.

While Lieber said she would prefers more sunshine on that process, Van de Kamp believes it’s not too much to ask.

“Once the governor reaches a decision of how they want the death penalty to be implemented to deal with Judge Fogel’s decision, he has made that public and then the lawyers will be able to chew on that, as I’m sure they will,” he said.

Lance Lindsay, executive director of the anti-capital punishment group Death Penalty Focus, is not confident that lethal injections will ever truly pass constitutional muster.

“They don’t even use the [three drug cocktail] process on animals because it causes too much pain,” he said. 

On the same day that Fogel made his decision, former Republican Florida Gov. Jeb Bush put a halt to executions in that state, where on Dec. 13 55-year-old Angel Nieves, sentenced to death for the murder of a manager of a topless bar, took 34 minutes to die from lethal injections.

According to news reports, Nieves’ eyes widened, his head moved and he appeared to be trying to speak and grimacing in pain during the execution process.

In most executions, the prisoner loses consciousness almost immediately, stops moving within three to five minutes and is declared dead after 15 minutes. Diaz was said to be still moving for 24 minutes after the first injection and thus wasn’t pronounced dead until 10 minutes after that.

What it is

In January 2003, ex-Illinois Gov. George Ryan — a Republican who made national headlines for imposing a moratorium on capital punishment based on evidence of wrongful convictions — established a body similar to the California Commission on the Fair Administration of Justice to look into that state’s capital punishment system

The commission issued 85 recommendations and unanimously stated that “No system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely no innocent person is ever sentenced to death.”

But there’s more to it than that, argues Pasadena City College Professor Ernesto Bustillos.

“There’s a lot of information that shows the great gap in economic status and other factors that influence the legal system and the relationship between class and race go hand in hand with the number of people getting locked up and the amount of inmates on death row,” said Bustillos, who teaches a class on contemporary social problems. “I think there’s been a lot of questioning with the death penalty, and people would be very responsive” to the findings of the Commission on the Fair Administration of Justice.

However, “it remains to be seen what will happen to the recommendations of the commission, given the ones they had already reached a consensus on have been vetoed [by Schwarzenegger],” said Lieber.

The next logical step is to see this back on the ballot and put the question to the voters of the death penalty versus maybe the question life with without parole,” Proponents of the death penalty, she said, should have to “prove the public can’t be protected without it,” she said. “The death penalty was re-established through a voter initiative, so only the voters can abolish the death penalty in California. It is a very difficult situation as a policy question because these individuals have been convicted of heinous crimes by and large.”

Despite questions about the fairness and accuracy of capital punishment, a recent Gallop poll found that two-thirds of Americans still support it. In fact, according to a recent report in USA Today, at least a half-dozen states — Virginia, Georgia, Tennessee, Missouri, Texas and Utah — are considering broadening the death penalty. Conversely, lawmakers or courts in 11 states have temporarily halted all executions, mostly over concerns that lethal injection is cruel and unusual punishment, Richard Dieter of the Death Penalty Information Center told the newspaper.

Van de Kamp, who was disappointed by the governor’s veto of commission recommendations, felt politics trumped analysis in that the bills were largely misunderstood by opponents.

“This year we’re going to be reintroducing that legislation and try to clarify some of the issues that come up to make sure they’re better understood. I’ve spent some time talking to people on both sides of the aisle about it, and I think there’s a good chance that those bills will get introduced as well as a new bill that will call for independent corroboration of jail house snitch testimony,” he said.

Although he’s no fan of the death penalty, Van de Kamp says politics won’t affect the work of the commission.

“I have always been an opponent of the death penalty. I’ve said that [though] I’ve carried it out as [a former LA County] DA and as the attorney general. We purposely avoided the moratorium issue because that’s a political issue,” he said.

Politics aside, there’s no changing one thing.

“As a witness to an execution, I would say there was no mistaking it for anything other than what it was, which was the intentional killing of a human being,” said Lieber.

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