Judge says families can push state to devise execution protocol

Reporting from San Francisco —  Family members of murder victims have the right to try to force the state to move forward with execution plans for administering lethal injection, a Sacramento judge has ruled.

In a decision mailed to attorneys this week, Sacramento County Superior Court Judge Shellyanne Chang said state law compels the Department of Corrections and Rehabilitation to develop a way to execute inmates by lethal injection.

Gov. Jerry Brown ordered the prison department in April 2012, to come up with a new execution method after courts found problems with the state’s previous three-drug protocol. Supporters of capital punishment blame the nearly three-year wait for a new protocol on lack of political will.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said the ruling shows that the corrections department “does not have the ‘unfettered discretion’ that they claimed to drag their feet indefinitely.”

The decision stemmed from a lawsuit filed by the legal foundation on behalf of former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered, and Bradley S. Winchell, whose sister was killed, by inmates now on death row. Alexander and Winchell argued the prison department was violating state law by failing to establish a lethal injection protocol.

The state tried to have the suit dismissed on the grounds that California officials have wide flexibility and discretion in meeting the law’s requirements and that crime victims lacked standing to sue.

Chang disagreed. She said the state could determine the means of executing inmates, but the law nevertheless required them to establish regulations. She also said Alexander and Winchell had the legal right to challenge the state.

A spokesman for the corrections agency said the state’s efforts have been complicated by difficulty in obtaining drugs for executions. Manufacturers, under pressure from opponents of the death penalty, have refused to sell the drugs to prisons.

“There is a supply problem for sure, but if you want to get around that, you could,” Scheidegger said.

He said a new protocol could provide for several alternative drugs if one or more became unavailable. Several states have adopted one-drug lethal injection methods and continue to execute inmates, he said.

Opponents of the death penalty complain that some lethal injection executions in other states have been botched, forcing inmates to suffer great pain before dying, because of ineffective or improperly administered drugs. California voters narrowly rejected a 2012 ballot measure to end the death penalty, with 48% in favor and 52% opposed.

California has not yet decided whether to appeal Chang’s ruling. If it is not challenged, the state will have to respond in writing to the lawsuit’s allegations. The case could go to trial or be resolved by another ruling.

At least 17 of 750 inmates on death row have exhausted their appeals. No one has been executed for nine years.

A state appeals court struck down a revised state execution protocol in 2013, contending that it had not been properly vetted. A federal judge in Orange County decided last year that California’s capital punishment system was dysfunctional and should be overturned. An appeal is pending.

Twitter: @mauradolan