The usage of lethal injections in executions can be perceived as progress comparing to the older harsh capital punishment methods such as lethal gas, electrocution or hanging. The three-drug lethal injection received social approval so the legislature adopted a less painful alternative for executions. After the 1970’s when the capital punishment was abolished, the opponents of death penalty launched campaigns for anti-reform propaganda with regard to the lethal injections. At that time, there were numerous court cases relating to unconstitutionality of the painful death in which drug companies participated, entering the deficit in necessary drugs. Despite the court proved that the three-drug method is constitutional, thee participating structures, namely court, defendants and the governors, agreed to initiate the reforms to elevate the executioners’ competence and provide one-drug lethal injections. The paper will analyze reasons approving the objectivity of lethal injection legal and procedural renovation in prospect.
History of Lethal Injections
The authorities of the United States did not properly reform the Constitution since the time when society condemned prisoners to death by quartering, beheading or drawing them. With time, the Eighth Amendment reduced those violent methods. Prunty, Cambra, Larson, and McAuliffe mentioned, “It since has been construed by our Supreme Court to require that punishment for crimes comport involving the practice of civilized right for decency.” In 1851, the federal government found it necessary to employ local representatives, namely the sheriffs, to manage the process of execution. Consequently, the Criminal Practice Act authorized the right of each sheriff within California to hold the executions. Since February 14, 1891, the California Penal Code gave permission to execute capital punishment within any suitable private place such as the jail or the yard but with compulsory presence of the sheriff. The social environment of this period demanded the reformation of the procedures as sheriff gained too much power. The social and media pressure made the governors improve the Penal Code and reduce the sheriff’s authority while making too important decisions. Nevertheless, in 1891, the California State Legislature provided some amendments to the Penal Code, and as Prunty et al. mentioned, that execution was possible only “within the walls of one State prisons designated by the court by which judgment is rendered.” Hereby, the amendments emphasized the importance of an attorney’s presence; however, this time, it was needed not a district but general one. Thus, the California State Legislature removed sheriff as a person who must be present during the execution.
Before 1938, hanging was the main method of capital punishment, and the two largest prisons of California such as San Quentin State Prison and Folsom State Prison practiced it. However, the developments in the spheres of chemistry and medicine requested less painful methods for capital punishment. In fact, the chemical achievements acted as a catalyst for the effort when in 1938, the California State Legislature switched hanging for lethal gas. Hence, the San Quentin and Folsom State Prisons installed the gas chambers. However, since 1967 during two decades, California did not executed capital punishment due to liberal Supreme Court decisions and outlook. The human rights defenders and lawyers achieved their aim, and in 1927, the Supreme Court proclaimed that the death penalty reduces rights of prisoners. Consequently, 107 preparing to death criminals were re-sentenced to life imprisonment.
According to Prunty et al., in 1973, the electorate added amendments to the State Constitution and “enacted legislation making the death penalty mandatory in specified criminal cases.” Moreover, in 1976, the Supreme Court proclaimed that this legislation did not accept mitigating circumstances and consequently it neglected the Federal Constitution. Such condition affected death penalty opponents, thereby impacting on legal environment of the courts. As a result, the next year, the Legislature of California allowed for mitigating circumstances, which caused approval of the Proposition 7 and reaffirmation of Californian death penalty.
Nevertheless, Prunty et al. mention that capital punishment “did not resume in California until April 1992.” In 1993, the condemned inmates received the right to choice between lethal injection and cyanide gas. The San Quentin State Prison began to use practice of few American jurisdictions and installed lethal injection protocols that made the executions less brutal. Initiated by the human rights defenders, attorneys and the United States District Court appeal of 1995 proclaimed that lethal gas is an inhuman punishment.
Being under public pressure, the lethal gas elimination found its support in 1996. That year, the United States Ninth Circuit Court of Appeals supported such initiative, and lethal gas was forbidden unless it was a good will of inmate. During the decade of 1996 and 2006, the State of California practiced thirteen penalties with the help of lethal injections upon condemned inmates. On 21th February 2006, the lethal injection was used to execute Michael Angelo Morales, who became the thirteenth condemned inmate. According to Prunty et al., ‘Morales’ execution was stayed as a result of his challenge to the administration of the lethal injection protocol.” However, the mass media environment is quite critical to the law; thus, The Guardian dated 2015 states that “181 people” received death sentences by California juries. Hence, the history of lethal injection practice in California showed some attempts to transform the legislature and methods of capital punishment. A significance of the moral maturity of Californian Legislatives was in the provision of the alternation to hanging, namely lethal injections, which began at the San Quentin State Prison, and arrangement of conditions for execution. Expected acceptance of the mitigating circumstances finally removed a collision between amendments to the State Constitution and Federal Constitution reaffirming Californian death penalty. The year 2006 was the last time of condemned inmate execution by the lethal injection. Since then, the court agreed execution only formally, but, in fact, nobody was executed. Hence, it is obvious that present-day legislature and procedures neglect court decisions.
Lethal Injection Problems and Challenges
In 2006, Michael Angelo Morales provoked the discussion whether the protocol for lethal injection of the San Quentin State Prison OP 770 protects the condemned inmate from suffering and excessive pain or not. Hence, there is a dilemma around the violation of the Eighth Amendment “command” insuring that the brutal and those involving physical torture punishments will “not be inflicted.” Thus, Californian legislatures initiated a Memorandum of Intended Decision. The problem it seeks to address is an official approval of a common legislative decision on constitutionality of the alternative drugs and executioners’ competency.
For such official approval, on December 15, 2006, the government requested public response from the defendants whether it is indeed such a high risk of painful death from the lethal injection that it neglects the Eighth Amendment. Thus, for objective analysis of the dilemma, it is necessary to discuss the Operational Procedure No. 770.
The OP 700 or the San Quentin State Prison Operational Procedure No. 770 is the official document of the State of California, which governs capital punishment using lethal injections. The OP 700 allows death penalty only by the three chemicals injected into the condemned inmate. Among those chemicals, there are potassium chloride, sodium thiopental and pancuronium bromide. With regard to these chemicals, potassium chloride causes cardiac arrest, sodium thiopental induces unconsciousness due to barbiturate sedative and pancuronium bromide ceases breathing and blocks neuromuscular processes, causing paralysis.
Morales argued that the OP 770 forced him to violate the Eighth Amendment as all the symptoms mentioned above cause pain and are against constitutional rights. Those pieces of evidence were reviewed by the Court, which stated that the condemned inmate’s breath “may not have ceased as expected in at least six out of thirteen executions by lethal injection in California.” In fact, this official statement contains temporal and quantitative pieces of evidence that sodium thiopental makes person unconsciousness within one minute. Moreover, the ceased breathing from pancuronium bromide due to the proper portions of the sodium thiopental does not provoke the pain that is forbidden by the Federal Constitution. In addition to the dilemma on pancuronium bromide, the court stated that “There can be no real doubt that Defendant’s implementation of OP 770 has major flaws.”
Along with the conclusions above, the Court mentioned that there are negative deficiencies with regard to the safe execution of death penalty. Among them are 1) improper conditions (design, lighting, and crowd) for the work of execution team; 2) unreliable record keeping; 3) inconsistent screening of execution team; 4) mistakes in preparation of sodium thiopental; 5) lack of competency among execution team members. The Court predicted and recognized the possibility of the protocol review and defined that the analysis must include: a) the manner of drugs injection, b) the quality of execution electrocardiograms and logs (contemporaneous records) and c) determination of lost consciousness by the injected person. The reason why the Court provided those criteria is a public will to improve the execution service/infrastructure and make the expert discussions more open.
Another resolution of the discussed problem about common legislature approval is in Memorandum content. The idea is about common recognition of compulsory guarantee on the reliable means of “monitoring and recording vital signs throughout the execution process”, as stated in the Memorandum of Intended Decision. There must be good practice of the members to determine whether the necessary dose of sodium thiopental reached the injected person. The difficult aspect here is in the effect of pancuronium bromide which paralyses a person so that they are not able to express the feeling of pain. For insurance, the team should have an additional portion of sodium thiopental and inject if the need arises. However, in 2006, the Court accepted the statement of Defendants that there are no Constitutional requirements for the medical officer presence while injecting. Moreover, execution is not a medical procedure, and its purpose is not saving but taking one’s life. Along with that, the presence of the medical trainer guarantees transparency of the procedure. In this case, the Constitutional issue claimed in the Governor’s Office Response to Memorandum of Intended Decision “stems solely from the effects” of potassium chloride and pancuronium bromide when the dose of anesthetic is improper.
The involvement of the governors in the process of lethal injection delivery system led to the publication of the official Response in 2007. The document contented appreciation of the invitation of the governors (despite they are not the process participants) and few directions that satisfied the requirements of the Court. Hereby, there are five Governors’ administrative directions contained in the Response. The first one is a transparent tender on defining competent experts who will provide recommendations on correction and implementation of the lethal injection protocol. The second direction is a comprehensive training program for the execution staff, monitoring and testing competency. A well-managed screening process for the selection of execution human resources and qualification review of their work constitutes the third direction. The fourth one is the provision and implementation of the standards for completed and reliable records of every execution. The fifth point is the provision of improved criteria for the death penalty facility of the San Quentin Prison, which insure adequate working conditions with proper space, light and equipment. Consequently, the Defendants agreed revision of the Prison Operational Procedure No. 770 in their official Defendants’ Response Memorandum of Intended Decision along with the governors and requested to “correct deficiencies in the implementation of the protocol.”
Thus, there is intersectional dispute between the Court, Governors’ and Defendants over the addressed problem on common approval of constitutional approaches to the lethal injection. The obvious problem and legislative background encourage the participants to arrange the issue about executioners’ competency and drugs alternation.
California Lethal Injection Changes
Speaking about the necessary changes, it is reasonable to mention the methodology of execution by itself. A proper practice is in the involvement of independent experts that are able to estimate and optimize the execution preparation and conduct along with the implementation of corrections on the state level. However, the improvements should be continued on various levels because only complex measures may have a real impact.
California is one of the most passive states in frequency of practicing death penalty, and the politicians do not want to force the issue. In 2015, The Guardian published the article “California Edging Back towards Executions with Lethal Injection Plan”, which says that “since 1978, when the death penalty was reinstated, California has executed 13 people. Sixty-nine inmates have died of natural causes while on death row and 24 have killed themselves. Still awaiting execution are 747 prisoners.” At the same time, the state governors mentioned that before acceptance of the single-drug protocol, there will not be any court order appeal for halting executions. In 2006, the Californian federal judge interpreted the three-component drugs method as violent so the state proposed an alternative way which is remodeled execution chambers. However, the Californian Court of Appeal violated some administrative procedures and did not succeed in balloting for the new execution protocol. The legislature proposes commonly agreed measures for pain, professional demands toward execution staff members and the commission qualification. Along with that, there are some proposals on switching the potassium chloride, sodium thiopental and pancuronium bromide for midazolam. Consequently, the public sector gives few propositions for changing the existing law: 1) established clear deadlines for committed executions; 2) detailed measures of drug proportions per person, including their medical data, weight, height, and sex, among others; 3) compulsory medical officers’ involvement; 4) execution equipment restoration through renovated standards. Hence, the changes proposed by the Californian authority, media, and legal and public sectors have much in common when speaking about the technical issues. However, there may be difficulties with procedures, especially when discussing small details limiting quantitative measures for drugs and quality of pain.
Contending Arguments to the Bills
The 27th of October 2015 was the deadline for the introduction of the new proposal for the lethal injection protocol. The experts have only one drug to propose yet, particularly due to complications in accessing drugs. However, the effect of death penalty resonantly causes social response, making an impact on the crimes rate. Fear of death is able to deter a criminal more than any imprisonment. Hence, there must be punishment equivalence of the committed harm, which develops the feeling of justice and safety among victims and/or relatives and ordinary people.
In response to the opponent arguments that argues about innocent people being mistakenly executed, there is another argument. Californian justice system rightfully requires much higher standardization of the death penalty cases. The judges’ basic tool is ethical and vigilant approach to evidence marking the key facts, which may define the inmate’s future.
Another argument to the lethal injection protocol touches financial costs of death penalty and life imprisonment. Some opponents convince that the executions are very expensive and total “at least $2 million per case.” The life without parole (LWOP) is cheaper to the federals and costs only “$1 million for fifty years.” However, this fact may be false as Justice for All (JFA) marks vice versa prices, stating that the “LWOP cases will cost $1.2 million-$3.6 million more than equivalent death penalty cases.” Hence, despite the protocol opponents claim that the lethal injections expenses are two-three times higher, the LWOP financial equivalent is significantly higher.
The bill on execution causes the situation of judicial adversarial principle when attorneys are additionally motivated to motion and object involving strong evidence without procedures break. Apparently, they plan and develop trial strategy and tactics that will be “thoroughly scrutinized on appeal”, and they realize their particular responsibility over somebody’s life and destiny. Some of the opponents may think that incompetent attorneys may provoke execution, so that lawyers get various accusations and regrets from the public and press. Nevertheless, those fears as an element of manipulations and fantasy are not able to block a long-lasting reform on renovation and return of executions. Thus, the discussions over the execution bill grew from the legal and social sector to economy, education and ethics.
The leading supporters of the lethal injection practice are victims or their relatives. Objectively, the condition when the governors and judges block capital punishment provokes anger of ordinary people, so they litigate to make their abusers suffer. A convenient case in this context is Alexander’s Kermit suit. Scheidegger’s group represented his interests as an attorney at the court and the “former star of NFL and UCLA”, whose “mother, sister and nephews were cruelly killed”, started the process. Bradly S. Winchell is another victim of the Californian liberation who has also “sued” after the “inmates who killed his sister” were not executed in the jail. Those cases represent the straight reaction of violated society on illegal state verdicts with regard to the execution by lethal injection. Hence, the legislation on fair judgment and punishment is especially important to the victims, their relatives and witnesses, who are disturbed about their life and safety. However, there is a high rate of the state voters who defeat abolishment of the capital punishment as since 2000, eight American states totally rescinded lethal injection.
Speaking about the importance to public sector, which actually participated in the bills acceptance, the New America conducted research based on ethnic estimation of the capital punishment necessity. For example, the Chinese Americans express the “strongest support – 76%” of capital punishment, and the whites take second position – “71%”. Moreover, few percents lower rates of lethal injection support have Latinos (“69 percent”), Afro-Americans – “63%, Vietnamese – “55 percent”, and “Korean Americans – 54 percent.” The age group division shows that the younger people are more inclined to support death penalty than the older ones because they have the necessity for safe existence and strict punishment imposed on those who misbalance their social life. Notwithstanding those rates, it is hard to state who wins and who loses because even the inmates exist in eternal imprisoning not knowing the date of injection. The one beneficiary of this situation is the union of opponents who find disapproval of the new decisions very important on the way to elimination of death penalty. The government particularly wins since it is not responsible for taking someone’s life even if it is a criminal. The judges find renovations important more than the governors, but they promote the necessity to enhance the competency of experts who work on the protocol. Hence, late revisions and ceased renovation is a prerogative of a smaller category when the majority perceives it as a disadvantage of the government administration.
The Spokesman of California Department of Corrections and Rehabilitation Jeffrey Callison was one of the authors of the new idea about execution. However, the details were explained neither by him nor by the governor Jerry Brown who ignored the journalistic question about his intention to initiate lethal injections again. The only one known thing is that the new single protocol will unite free public discussions space, and it will definitely take more than a year of legislative arrangements and agreements.
Nevertheless, in 120 days after the Supreme Court’s decision on Oklahoma’s three-drug method of execution, the Brown’s administration with the partners made a decision to uphold the usage of midazolam. The authorities are confident that painless executions are not compulsory and are interested in blocking the acceptance of the new California’s protocol.
On behalf of crime victims, Scheidegger’s group sued the Brown’s administration, and the court obliged the governors to review their executions plans. However, more than three years the Brown’s administration is not able to manage the creation of a single-drug protocol by the experts and prison officials. Moreover, even reviewed deadlines cannot eliminate obstacles extending Californian executions renovation. The state law by itself is dependent on extensive public comments about the new methods of death penalty, and this process can simply take more than a year. Another change may appear due to a high possibility that the activists opposing practicing executions may initiate the ballot after their last attempt in 2012. Their demand is the replacement of death penalty with life without parole, which society will definitely support in some time.
However, the challenge of executing is empowered by fact that California meets the situation when the drug manufacturers are not able to obtain drugs for lethal injection (particularly due to the pressure of the opponents). Scheidegger sees the resolution in the “usage of lethal dose of pentobarbital”, which is used for animal euthanasia.
Hence, there is skeptical prospect for renovation and activation of the lethal injection practicing. In fact, the pressure from death penalty opponents, medical supply crisis and lack of governmental will makes the success of 2015 reforms illusive. The integrity and solidarity between the administration, courts and defendants has a clear legal conception neither in procedures nor in chemical alternatives. Particularly, this delay is a result of incompetency of the staff which conducts the protocol renovation.
People are closer than ever to repeal executions, and, hence, other alternations may seem absurd. Hereby, even if the single death penalty protocol will be finally accepted, people are not ready to put to death few hundreds of people.
The new evidence and procedures with regard to execution underscored the division of opinions on the execution. Justices Ruth Ginsburg and Stephen Breyer convince that the court should “review the constitutionality” of capital punishment. Breyer publicly recognizes that in modern “executional system the condemned inmates” are dying “of old age” rather than of the “executor’s needle.” Obviously, the United States Ninth Circuit Court of Appeals will define the fact of rendered constitutionality of the state’s system within the decades-long execution delays. Last summer, the ruling proclaimed that death penalty in California is unconstitutional, but later, the Judge Cormac J. Carney resumed that “declared California’s death penalty unconstitutional”. The death penalty opponents measure all possible resolutions, including new ballot, because formally, Californian judges sentenced inmates to death, but there were some problems with enforcement. Hence, if the last ten years the state did not represent the new single-drug protocol, there is no guarantee that in two years something will change. Nevertheless, the “detailed protocols” are necessary demand for democracy renovation. Consequently, even in case of the acceptance of the new protocol, the governors should be ready for numerous court challenges.
The personal opinion about renovation of the protocol and improvement of procedures is rather skeptical. California would accept inner state standards differently from the general American court requirements in some valuable details such as definitions of violence and cruelty. Before the adoption of the final variant of execution protocol, the state considers all recommendations made on the draft orders and makes complex revision when necessary. However, it should include the quantity measures of inmate’s weight, height, age, sex and provide necessary doses and medical alternatives. Also, the legislatures should provide definite deadlines for executions as in addition to legal and social benefits, they will bring additional financial benefit. After twenty five years of executions pause and hundreds of inmates who are not factually punished, it is time to reform the execution protocol according to modern chemical, medical, human resources opportunities and public sector demands. Proper dosage and chemical specification can be a valuable step toward the formation of a single execution protocol, but it is rather possible in prospect.