Will Executions In California Ever Resume?

FEB. 10, 2011

As I write this on Feb. 8, San Jose federal Judge Jeremy Fogel is preparing to tour San Quentin State Prison’s new death chamber, which reportedly cost nearly a million dollars. It was Fogel who, after a previous tour five years ago, stopped all executions in California, ruling that the state Corrections and Rehabilitation Department (CDCR)’s procedures and facilities were “outdated.”

Of course, even if Fogel emerges from San Quentin to announce that everything is just peachy on death row, don’t look for an execution anytime soon. CDCR has not yet re-scheduled convicted murderer Albert Greenwood Brown’s aborted execution – or any other death row inmate’s, for that matter. In any case, this is still California, which is wildly schizophrenic when it comes to capital punishment.

“I think it’s certainly possible that California will resume executions, even with your new governor,” said Richard Dieter of the Death Penalty Information Center in Washington, D.C. “But California may still eventually have to change its protocols.”

The reference to new/old Governor Jerry Brown is telling. During Brown’s first terms of office in the 1970s, he was an avowed opponent of executing even first-degree murderers. He stacked the state Supreme Court with like-minded judges – most notably, Chief Justice Rose Bird – who made it their life’s work to stop any executions that reached them. By 1986, the court had overturned more than 60 death sentences.

But by then, popular opinion had turned against Brown, and the voters turned out Bird and two other judges in 1986, making her the first sitting chief justice in California history to lose a bid for reelection. Brown, in subsequent years, changed, too. As late as the 1990s, when he hosted a radio talk show, Brown called capital punishment “state murder,” but during the 2010 election campaign, Brown – who was now state Attorney General – took pains to say that he now supported capital punishment.

“I will observe the law and I’ve been down this road before,” Brown told the Sacramento Bee editorial board in September. “The people have spoken. The courts have upheld it. I’ll carry it out.”

Of course, there’s no way to tell just how quickly executions might resume. “California leads the country in death sentences by a good bit,” Dieter said, but he also noted that it’s been five years since California executed a condemned criminal (Clarence Ray Allen). “It still may be another year before executions can take place,” he added.

According to CDCR statistics, there are 718 individuals on death row right now, yet the state has, since 1978, carried out just 13 executions (41 died of natural causes in the same period). The state likes to condemn criminals to death, but what happens to them after seems less important.

The problem with that, as Dieter pointed out, is that California’s death row is very expensive. “It’s an enormous expense to keep this operation going,” he said. “It costs $100 million a year. And California is still facing one of the largest budget deficits in the nation.”

And that’s not even counting court costs. The planned execution of Albert Greenwood Brown back in October choked to death on appeals, which are awaiting the outcome of Fogel’s San Quentin tour. Of course, all this assumes the availability of the very chemicals prison officials need to carry out executions in the first place.

See, the planned Brown execution ultimately collapsed because state officials lacked sufficient quantities of sodium thiopental, an anesthetic that its manufacturer does not approve of for use in capital punishment.

“California imported some drugs Great Britain,” Dieter said, though he noted that it’s unclear if they’ve yet been tested. “There may be additional challenges. Great Britain is also probably not going to allow such drugs getting out for this anymore.”

Complicating matters, on Feb. 2 the law firm Sidley Austin LLP sued the FDA on behalf of six death row prisoners in California, Arizona and Tennessee over those states importing sodium thiopental for use in lethal injections.

“The law requires the FDA to ensure that only safe, effective drugs are brought into the United States,” Sidley Austin attorney Bradford A Berenson said in a press release on the lawsuit. “When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law.”

If it seems silly that this suit is calling for only “safe” drugs to be used in executions, it’s no more ridiculous than the rest of California’s flirtation with state-sanctioned death.

“Lawsuits like this take a lot of time,” Dieter said, which means the number of condemned prisoners who die of natural causes will surely rise in the coming years. It has to be the most expensive life imprisonment system in the nation, but don’t look for it to change anytime soon.

–Anthony Pignataro