The perfect execution

At an undisclosed location—although the state compound at 1515 K Street would be a good guess—a secret team of California Department of Corrections and Rehabilitation employees feverishly is working to devise a new and improved way to execute prisoners that will comply with the United States Constitution.

The suggested improvements won’t be known until May 15. According to documents filed Tuesday in U.S. District Court, that’s the date when the department and the attorney general say they’ll release a report detailing a revamped procedure “identifying corrective actions addressing deficiencies in the implementation of lethal injection executions.”

California was ordered to refine its lethal-injection procedure by U.S. District Court Judge Jeremy Fogel, who, on December 15, 2006, temporarily halted executions in the state, declaring that the methods used to carry out lethal-injection executions create an unreasonable risk of causing excessive pain and therefore violate the cruel-and-unusual punishment prohibitions of the Eighth Amendment. The judge said he expected that the problems could be fixed and ordered California to report back in 30 days with a plan and a time frame for implementing procedures that comply with the Constitution.

Three days later, Governor Arnold Schwarzenegger vowed to fix the problem so state-sanctioned killing could continue. “I am committed to doing whatever it takes to ensure that the lethal injection process is constitutional so that the will of the people is followed and the death penalty is maintained in California,” he said in a written statement.

Addressing the specific problems with California’s execution procedure Fogel listed in his 17-page ruling, Schwarzenegger said he would have the corrections department recommend how to ensure that there is adequate equipment and lighting in the death-penalty facility at San Quentin Prison, the state keep complete and reliable records of each execution, they adequately train the team of employees that carries out executions, and they establish a screening process for the selection of execution team members.

If the state can do all that, Fogel said he’d let the execution of Michael Morales, convicted of the 1981 rape and murder of Terri Winchell in a Lodi vineyard, go forward. Originally scheduled to die almost one year ago, Morales’ court challenge to the lethal-injection process has provided a rare glimpse into the normally secretive government-execution process, according to Fordham University law professor and death-penalty researcher Deborah Denno.

“We know more about [Saddam] Hussein’s execution than we know about any execution taking place in this country,” she said. “We know exactly what went on in that hanging. We don’t videotape our executions but I think they should be.”

Nearly every state keeps the details of its execution process a secret, said Denno, adding that records from court cases challenging the process usually are sealed. “It makes it very frustrating because lethal injection is even worse than we think it is,” she said. “Morales probably opened it up the most in the sense that you had a very involved judge,” Denno said. “I mean, [Judge Fogel] actually went to the execution chamber and saw how an execution was carried out. And I think California has been the most public about its information.”

Among other things, analysis of the lethal-injection process in court cases throughout the country has revealed that if the three-drug injection procedure is done improperly, the condemned prisoner will experience tortuous pain, similar to the sensation of boiling oil or branding with a red-hot iron, according to a Columbia University anesthesiology professor who testified in a case in Connecticut.

In California, the risk of the procedure being done improperly is heightened by the makeup of the execution team, which the Morales case revealed has problems, according to Judge Fogel’s ruling: “For example, one former execution team leader, who was responsible for the custody of sodium thiopental (which in smaller doses is a pleasurable and addictive controlled substance), was disciplined for smuggling illegal drugs into San Quentin; another prison guard led the execution team despite the fact that he was diagnosed with and disabled by post-traumatic stress disorder as a result of his experiences in the prison system and he found working on the execution team to be the most stressful responsibility a prison employee could ever have.”

In addition, Fogel suggested that the corrections department consider a criminal investigation to find out what happened to missing execution chemicals.

David Senior, the lead attorney representing Morales, said that he thinks the corrections department eventually will be able to put together an execution team and a lethal-injection process that will satisfy Fogel’s requirements. Still, he’s troubled by the lack of transparency with the state’s execution process.

“If this is a procedure the people of the state of California want to use their resources to fund, then the people—all of the people, whether they support the process or not—should be entitled to see, learn and know what’s going on,” he said. “Absent that, no one will ever know whether the process is something that should be used, modified, improved or discontinued.

“The state has used ‘security’ as a pretext—one that even the execution team leader acknowledges is such—to ensure that there is no accountability for its execution actions, qualifications, training or performance,” Senior said.

Dane Gillette, senior assistant attorney general in charge of death-penalty appeals, who’s handling the Morales case for California, said he is confident the corrections department will come up with an execution process that will satisfy Fogel. “I am certain that it will be possible to ensure that our procedures are constitutional,” Gillette said.