JUDGE RULES CA LETHAL INJECTION MAY BE UNCONSTITUTIONAL

Death Penalty Focus
870 Market St. Ste. 859 San Francisco, CA 94102
Tel. 415-243-0143 - Fax 415-243-0994 - http://www.deathpenalty.org

Lethal Injection Decision Announced Today!

Today U.S. District Court Judge Jeremy Fogel issued his ruling on the constitutionality of California's lethal injection protocol. (.pdf Attached)

Key points from his order include:

1) Defendants implementation of lethal injection is broken, but it can be fixed.

2) As this Court noted in its order of February 14, 2006, anomalies in six execution logs
raise substantial questions as to whether certain inmates may have been conscious when
pancuronium bromide or potassium chloride was injected.

3) At the present time, however, Defendants’ implementation of California’s lethal-injection
protocol lacks both reliability and transparency.

4) In light of the substantial questions raised by the records of previous executions, Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution.

5) First, given past experience, it seems unlikely that a single, brief meeting primarily of
lawyers, the result of which is to “tweak” OP 770, will be sufficient to address the problems identified in this case. Rather, as contemplated by the Court in its order of February 14, 2006, “a thorough review of the lethal-injection protocol, including, inter alia, the manner in which the
drugs are injected, the means used to determine when the person being executed has lost
consciousness, and the quality of contemporaneous records of executions, such as execution logs
and electrocardiograms,” 415 F. Supp. 2d at 1046, likely will be necessary.

6) Because an execution is not a medical procedure, and its purpose is not to keep the inmate alive but rather to end the inmate’s
life, the Court agrees with Defendants that the Constitution does not necessarily require the
attendance and participation of a medical professional. However, the need for a person with
medical training would appear to be inversely related to the reliability and transparency of the
means for ensuring that the inmate is properly anesthetized: the better the delivery system, the
less need there is for medical participation.

7) Within thirty days Defendants shall advise the Court and Plaintiff of their response to this memorandum, including specifically
whether Defendants and the Governor’s Office intend to review and revise OP 770 further and, if
so, how much additional time, if any, they believe they will need to complete that task.

8) Accordingly, and respectfully, the Court urges the Governor’s Office to take this
opportunity to address seriously now, rather than later, the significant problems with OP 770 and
its implementation. In light of the well-documented management issues in California’s prison
system generally, see , e.g. , Plata v. Schwarzenegger, No. C 01 1351 TEH, 2005 WL 2932253
(N.D. Cal. Oct. 3, 2005), the Court believes that the Governor’s Office is in the best position to
insist on an appropriate degree of care and professionalism in carrying out what Defendants
properly characterize as the “solemn” task of executions.


Take Action!


We encourage all of you to take this unique opportunity to write to your local papers, post comments on a blog, or call into your favorite talk radio shows whenever lethal injection is being discussed or written about.

Politicians, opinion leaders, and judges who may rule on the case in the future, will be closely watching how the public responds to the ruling. They will gauge this response based on what they hear in the media.

Watch and respond to coverage in your local community. Applaud favorable articles, point out inaccuracies or bias in unfavorable articles, or simply state your own response to what you are hearing (e.g., I am trouble by the evidence that was presented....) Newspapers choose the letters they will publish based on the total number of letters they receive on a given topic. Therefore it is important to generate as many good letters as possible, and even if your letter doesn't get printed, it may cause them to run another good letter with a similar message.

Most importantly, use this as an opportunity to bring out core messages about what's wrong with the death penalty. For example, "the troubling evidence presented underscores that the death penalty just doesn't work: race and poverty determine who lives and who dies, innocent people are being put to death, etc.” Please also see the messaging tips below.


Tips for writing a Letter to the Editor

1) Letters to the Editor should be no more than 250 words.

2) Always include your full name, city and a phone number where you
can be reached. The paper will not print your phone number but they
will use it to verify the authenticity of your letter.

3) Whenever possible refer to an article or editorial (on lethal
injection) that appeared in the newspaper you are writing to.

4) Letters to the editor can be sent directly from our website:
http://www.deathpenalty.org/index.php?pid=letters&menu=1" or from
your newspaper's website.



Lethal Injection Message Points

Core Messages


1) The death penalty is failed public policy which drains valuable resources away from programs that actually increase public safety and serve the needs of victims. So why are we trying so hard to fix it? Now is the time to abolish the death penalty.


2) Chaos and confusion dominate California’s executions making it inevitable that botched executions will continue to occur. A growing body of evidence demonstrates that the state blindly adopted the current lethal injection procedure from Oklahoma and began carrying out executions without any research, methodological investigation, and even more shockingly, without providing training to the prison staff.


3) California’s prison system is in crisis and the execution process is just one more example. The California prison system is turning a blind eye to the mounting evidence of mistakes and simply carrying on with business as usual. The prison administration has known for years that there are many problems with the execution procedures and it has refused to fix them; instead, making the process as secretive as possible, so that the public is kept unaware of the inhumane killing of prisoners.


Highlights of Evidence Presented in Morales v. Tilton


Chaos and confusion dominate California’s executions
Members of the execution team testified that the room where they work is often so crowded that they cannot see what is going on. One execution team member said she passed syringes of the lethal drugs to an outstretched hand, without knowing to whom she was giving the drugs. A doctor testified that the warden ordered him out of the room because it was too crowded. He also stated it was so dark, he had to use a flashlight to write notes.

Lack of training for prison staff
When asked about the training execution team members receive, one of the two medical personnel on the team responded, “training, what training?” None of the members of the team had read the execution protocol. None received training on the drugs used in the execution. Most members of the team do not even know what the lethal injection drugs do.

IV bags and lines placed by “maintenance man”
The person responsible for setting up the IV bag and lines is the prison “maintenance man.” The bag is placed so high, team members cannot even reach it during the execution. More than 17 feet of tubing is needed to get from the IV bag to the person’s arm.

Prison admits Williams’ execution botched
The prison admitted that the execution of Stanley Tookie Williams was botched. Witnesses watched the execution team member struggle for several minutes trying to insert the second IV line. Finally, she gave up in frustration. One team member said “it’s not working.” The warden ordered the execution to proceed. The prison claims that this was a “lesson well learned.” Yet, the current protocol actually makes it more likely that similar mistakes will happen again.

Drugs used for lethal injection not even used on animals
A leading expert in animal euthanasia testified that, because of the high likelihood that the animal would suffer a painful death, it would be inhumane to kill an animal using the combination of drugs and procedures used in California executions.

Controlled substances are unaccounted for after executions
The drugs used in the execution procedure are dangerous controlled substances. Guards “check out” these drugs in order to “practice” for the execution, but only water is used in the practice session and the drugs are never returned. Guards check out three times as many drugs as they need for the actual execution and never return or document disposal of the excess. The prison’s own expert witness testified that if he were in charge of the pharmacy, he would be “very concerned about where those drugs were.” This is a violation of federal regulations and a crime.


For more information, visit DPF's lethal injection page: http://www.deathpenalty.org/index.php?pid=Lethal&menu=1"




Stefanie L. Faucher
Program Director

Death Penalty Focus
870 Market St. Ste. 859
San Francisco, CA 94102
Tel. 415-243-0143
Fax 415-243-0994
mailto:stefanie [at] deathpenalty.org
http://www.deathpenalty.org
http://www.californiamoratorium.org

Yahoo! News
Florida, California suspend executions

By RON WORD, Associated Press Writer1 hour, 35 minutes ago

Gov. Jeb Bush suspended all executions in Florida after a medical examiner said Friday that prison officials botched the insertion of the needles when a convicted killer was put to death earlier this week.

Separately, a federal judge in California extended a moratorium on executions in the nation's most populous state, declaring that the state's method of lethal injection violates the constitutional ban on cruel and unusual punishment.

U.S. District Judge Jeremy Fogel ruled in San Jose that California's "implementation of lethal injection is broken, but it can be fixed."

In Florida, medical examiner Dr. William Hamilton said Wednesday's execution of Angel Nieves Diaz took 34 minutes — twice as long as usual — and required a rare second dose of lethal chemicals because the needles were inserted clear through his veins and into the flesh in his arms. The chemicals are supposed to go into the veins.

Hamilton, who performed the autopsy, refused to say whether he thought Diaz died a painful death.

"I am going to defer answers about pain and suffering until the autopsy is complete," he said. He said the results were preliminary and other tests may take several weeks.

Missing a vein when administering the injections would cause "both psychological and physical discomfort — probably pretty severe," said Dr. J. Kent Garman, an emeritus professor of anesthesia at the Stanford School of Medicine in California.

"All the drugs would be much slower to affect the body because they're not going into a blood vessel. They're going under the skin. They take a long time to be absorbed by the body," said Garman, who said he was ethically opposed to lethal injection.

An inmate would remain conscious for a longer period of time and would likely be aware of increased difficulty breathing and pain caused by angina, the interruption of blood flow to the heart, he said.

Jonathan Groner, associate professor of surgery at Ohio State University, said the injection would cause excruciating pain "like your arms are on fire."

Bush created a commission to examine the state's lethal injection process in light of Diaz's case, and he halted the signing of any more death warrants until the panel completes its final report by March 1.

The governor said he wants to ensure the process does not constitute cruel and unusual punishment, as some death penalty foes argued bitterly after Diaz's execution. Florida has 374 people on death row; it has carried out four executions this year.

Governor elect-Charlie Crist planned to continue the moratorium when he takes office in January, spokeswoman Vivian Myrtetus said.

Fogel said the California case raised the question of whether the three execution drugs administered by the San Quentin State Prison are so painful that they "offend" the ban on cruel and unusual punishment. Fogel said he was compelled "to answer that question in the affirmative."

California has been under a capital punishment moratorium since February, when Fogel called off the execution of rapist and murderer Michael Morales amid concerns that condemned inmates might suffer excruciating deaths.

Fogel found substantial evidence that the last six men executed at San Quentin might have been conscious and still breathing when lethal drugs were administered.

Lethal injection is the preferred execution method in 37 states. Last month, a federal judge declared unconstitutional Missouri's injection method, which is similar to California's.

The U.S. Supreme Court has upheld executions — by lethal injection, hanging, firing squad, electric chair and gas chamber — despite the pain they might cause, but has left unsettled the issue of whether the pain is unconstitutionally excessive.

Diaz, 55, was put to death for murdering the manager of a Miami topless bar during a holdup in 1979.

The medical examiner's findings contradicted the explanation given by prison officials, who said Diaz needed the second dose because liver disease caused him to metabolize the lethal drugs more slowly. Hamilton said that although there were records that Diaz had hepatitis, his liver appeared normal.

Executions in Florida normally take no more than about 15 minutes, with the inmate rendered unconscious and motionless within three to five minutes. But Diaz appeared to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words.

As a result of the chemicals going into Diaz's arms around the elbow, he had an 12-inch chemical burn on his right arm and an 11-inch chemical burn on his left arm, Hamilton said.

Florida Corrections Secretary James McDonough said the execution team did not see any swelling of the arms, which would have been an indication that the chemicals were going into tissues and not veins.

Diaz's attorney, Suzanne Myers Keffler, reacted angrily to the findings.

"This is complete negligence on the part of the state," she said. "When he was still moving after the first shot of chemicals, they should have known there was a problem and they shouldn't have continued. This shows a complete disregard for Mr. Diaz. This is disgusting."

Earlier, in a court hearing in Ocala, she had won an assurance from the attorney general's office that she could have access to all findings and evidence from the autopsy. She withdrew a request for an independent autopsy.

David Elliot, spokesman for the National Coalition to Abolish the Death Penalty, said experts his group had contacted suspected that liver disease was not the explanation for the problem.

"Florida has certainly deservedly earned a reputation for being a state that conducts botched executions, whether its electrocution or lethal injection," Elliot said. "We just think the Florida death penalty system is broken from start to finish."

Florida got rid of the electric chair after two inmates' heads caught fire during executions in the 1990s and another suffered a severe nosebleed in 2000. Lethal injection was portrayed as a more humane and more reliable process.

Twenty people have been executed by lethal injection in Florida since the state switched from the electric chair in 2000.

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Associated Press writers David Kravets and Marcus Wohlsen contributed to this report from San Francisco.