State to create new lethal injection method under legal settlement

Reporting from San Francisco —  Nearly a decade after the state last executed a prisoner, California has agreed to a settlement that moves the state closer to restarting the death chamber.

The settlement of a lawsuit brought by crime victims’ families requires Gov. Jerry Brown’s administration to unveil a new method of lethal injection this year. That method, which Brown officials said would be a single-drug lethal injection, will be subject to public comment and court challenges.

If the plan survives the scrutiny and litigation, it still could be stymied by difficulty in obtaining drugs needed for executions. Manufacturers, pressed by death penalty opponents, are refusing to sell drugs for executions. Compounding pharmacies, another possible source of the drugs, also could have trouble procuring the necessary chemicals to make them.

Still, the settlement remains the first breakthrough in a years-long hiatus in executions in California. It is likely to reignite the debate over capital punishment in the state and test the resolve of the Brown administration. Brown personally opposes capital punishment but defended the death penalty when he was attorney general.

After losing pretrial motions in the case, Brown’s administration agreed to propose a new method of lethal injection within 120 days of a Supreme Court decision on Oklahoma’s three-drug method of execution. That ruling, expected later this month, will determine whether one of the drugs used in Oklahoma violates a constitutional ban on cruel and unusual punishment.

Opponents of the death penalty, caught off guard by Tuesday’s announcement, said they expected any new proposal to fail.

“California hasn’t carried out an execution in almost 10 years at this point,” said Ana Zamora of the ACLU of Northern California, “and any effort to change the execution protocol is doomed to fail and guaranteed to bring more legal challenges, more delays and cost more money.”

Robert Dunham, executive director the Death Penalty Information Center, agreed that any new protocol would probably face lawsuits. So far this year, 14 inmates have been executed in other states with either imported drugs or chemicals made in compounding pharmacies, Dunham said. Another execution was scheduled in Texas for Wednesday.

Texas, Georgia and Missouri execute inmates with a single injection of pentobarbital, a barbiturate used in animal euthanasia that can be produced by some compounding pharmacies.

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, expressed hope that the state proposal would provide for alternatives should one drug or another become unavailable.

He conceded the likelihood of lawsuits, “but if pentobarbital is the protocol, I think their chances of getting a stay on that are close to nil.” The settlement was reached just as Scheidegger’s group, which filed the lawsuit, was seeking internal documents from the state to determine what work it had done on developing a new execution method.

Brown ordered the prison department to devise a new lethal injection method more than three years ago. A spokesman for the California Department of Corrections and Rehabilitation blamed the delay on uncertainty as to whether drugs would be available for executions.

“They said they were starting to work on it three years ago,” Scheidegger said. “How much they have actually worked on it and how much they let it sit, I do not know. I wish the whole thing had gone faster — I regret I had to file this suit at all — but this is what it took.”

A federal judge in 2006 found that the state’s previous three-drug method could cause excessive suffering in violation of the Constitution. The state proposed another method and remodeled its execution chamber, but a state appeals court said California violated an administrative procedures act by failing to vet the new protocol properly.

Scheidegger’s group sued on behalf of former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were killed, and Bradley S. Winchell, whose sister was killed by inmates now on death row. Alexander and Winchell argued that the prison department was violating state law by failing to establish a lethal injection protocol.

California has 749 inmates on death row, the most in the country. More than a dozen have exhausted their appeals. Since 1978, California has executed 13 inmates, 66 have died from natural causes and 24 have committed suicide.

The state’s voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded death penalty laws since 2000, most recently, Nebraska.

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