Schwarzenegger changes strategy in execution debate

Posted on February 27, 2009. Filed under: Courts, Crime, Death Penalty |,0,4741751.story

From the Los Angeles Times
In a bid to hasten the return to capital punishment, California will submit revised lethal injection rules for public review rather than keep appealing court decisions that deemed them illegal.

By Carol J. Williams and Maura Dolan

February 24, 2009

Gov. Arnold Schwarzenegger and his lawyers have switched strategies in the legal battle to resume executions, agreeing to submit revised lethal injection protocols for public review rather than continue appealing state court decisions that the redrafted rules are illegal.

FOR THE RECORD: An earlier version of this article said U.S. District Judge Jeremy Fogel imposed a moratorium on executions in California. Fogel issued a ruling that led to the state’s moratorium.

Although the move is intended to speed up a return of capital punishment, conservative law-and-order advocates and victims’ rights groups expressed frustration over the persistent delays.

State officials predict the execution procedures could be approved by a state panel in six months to a year, clearing the way for a federal judge to lift a moratorium on executions.

San Quentin’s death row, the nation’s largest, houses 680 prisoners.

The state attorney general’s office, on behalf of the corrections department, had been fighting a Marin County judge’s ruling 14 months ago that the way the new procedures were drafted violated state law. The 1st District Court of Appeal upheld the Marin County judge in November, and the period for appeal to the California Supreme Court has expired.

“We took a look at the case, and our determination is that the most expeditious way for us to resume the will of the people and carry out capital punishment is to go through the Administrative Procedures Act process in spite of the fact that we disagree with the court rulings,” said Seth Unger, spokesman for the California Department of Corrections and Rehabilitation.

The act requires that any policy changes affecting more than one institution submit to a 60-day period for public comment. It also requires review by an independent state agency.

Throughout the challenges, the governor and state lawyers have disputed the contention that the new rules needed to go through the paces of the Administrative Procedures Act because only one prison, San Quentin, carries out executions.

While complying with the Administrative Procedures Act for the sake of expediency, Unger said the corrections department was simultaneously asking the California high court to “depublish” the November appeals court decision on grounds that it was “wrongly decided.” He said department lawyers were concerned that the ruling could create administrative havoc across the prison network.

Executions have been on hold for three years while the state, as well as the nation, probed concerns that the three-drug injection regime may have failed to render some condemned men unconscious before the fatal last dose, exposing them to unconstitutional pain and suffering.

California’s last execution was in December 2005, when 76-year-old Clarence Ray Allen was put to death.

U.S. District Judge Jeremy Fogel issued a ruling that led to the state’s moratorium on Feb. 21, 2006, when he effectively stayed the execution of convicted murderer Michael Morales. The judge ordered review of claims that the procedures violated the 8th Amendment ban on cruel and unusual punishment.

Under the former as well as the pending protocols, a barbiturate is supposed to anesthetize the recipient before a second drug induces paralysis and a third stops the heart. If the first drug fails, the second would leave the inmate incapable of expressing the intense pain inflicted by the final dose.

A task force created by the governor in 2007 redrafted execution procedures to ensure proper doses and improve staff training.

But before Fogel could review the changes, Morales’ attorneys brought his challenge in Marin County, where San Quentin is located.

Morales attorney Brad Phillips said he interpreted the state lawyers’ change in tactics to having “simply realized that we are right about the law.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, criticized the state for failing to pursue the public review at the same time it appealed the state court’s ruling.

“If they were going to go the administrative route, they could have started that two years ago when all this came up,” said the top lawyer for the law-and-order group.

Scheidegger also said he was not optimistic that Fogel would move quickly after the state issue is resolved, despite a U.S. Supreme Court ruling last year that similar protocols challenged in Kentucky met constitutional scrutiny.

“Crime victims are going to be outraged,” said Nina Salarno Ashford, executive director of Crime Victims United of California. A witness to five executions who has pronounced them “humane,” Ashford blamed the governor for the latest delay.

A spokeswoman for Schwarzenegger, Lisa Page, would say only that the governor isn’t the official state party in the case brought against the corrections department.

But Schwarzenegger has been an ardent champion of capital punishment, recently observing that he would resume executions “immediately — yesterday,” once the legal obstacles were removed.

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