In November, California voters will take up an issue they haven't considered in decades: the death penalty.
The SAFE California Act, if passed, would nullify the 1978 ballot initiative that crystalized capital punishment in California after a temporary hiatus. Proponents argue that the death penalty doesn't benefit victims of violent crime, costs the state too much in incarceration and legal expenses, and anyway, hasn't been carried out in years.
That last argument could be nullified by a lawsuit originating in L.A. County. District Attorney Steve Cooley is asking Superior Court Judge Larry Fidler to order the state to resume executions, using a new lethal injection procedure. That case will be heard Friday in Los Angeles.
Why executions have been on hold for six and a half years
The last execution in California was in January 2006. About a month later, Death Row inmate Michael Angelo Morales' execution was stayed, because a federal judge decided to hear his legal claim that California's lethal injection procedure violated the Eight Amendment's ban on cruel and unusual punishment.
Later that year, the US District Court sided with Morales, saying as administered, lethal injections in California were error prone, took place in a cramped former gas chamber, and presented a risk that inmates would suffer terrible pain while dying.
Since then, the state has jumped through a number of hoops, trying to get the court to allow it to resume executions. The California Department of Corrections and Rehabilitation built a new lethal injection chamber at San Quentin and it rewrote its lethal injection procedure to add a check that's designed to ensure the inmate's asleep on anethesia before being put to death using drugs that can cause pain.
In 2010, when the Riverside district attorney asked a judge to set an execution date for a condemned man from that county, the state kicked into high gear, even flying CDCR officers to Arizona in the hours before the scheduled execution to secure lethal injection drugs. But it was called off by judges who cited remaining legal claims against the lethal injection process.
Both of those lawsuits are ongoing.
One, now under appeal, eventually nullified the state's lethal injection procedure, saying CDCR hadn't taken into account public input when writing the regulation. Specifically, the court pointed out that many members of the public asked the state to consider using a one-drug procedure to execute inmates instead of three drugs.
The single-drug protocol, used by many states, including Ohio, is thought by many to be more humane and more transparent. When three drugs are used, one of them is a paralytic drug — meaning if the initial drug, an anesthetic, does not funciton properly, no one can tell if the inmate is experiencing tremendous pain while dying, because he or she is chemically paralysed. A one drug protocol, by contrast, is simply an overdose of anesthetic.
Earlier this year, Gov. Jerry Brown directed CDCR to look into implementing a one-drug lethal injection procedure. Now the question is how quickly executions could resume.
What the Los Angeles District Attorney wants to happen
Deputy District Attorney Michele Hanisee, who's handling the L.A. Superior Court case, wants Judge Fidler to order the state to carry out the death sentence for two inmates, Mitchell Sims and Tiequon Aundray Cox.
Hanisee says multiple other states, including others in the jurisdiction of the 9th Circuit, have encountered the same issues as California — litigation delaying executions for years, issues finding execution drugs, etc. — but have quickly jump-started their execution system by switching to a one-drug process.
"We're trying to make the execution process work in this state," Hanisee said.
Attorney Sara Eisenberg, on the other side of the case, argues the state cannot resume executions without putting any new lethal injection process through the state's elaborate rule-writing process. California's administrative procedures are notoriously slow.
"In this case, I think it should be because it should be a careful and considered process," Eisenberg said.
The state has a lot to consider before it can start executing people, she said. "Whether they want a three-drug protocol, whether they want a single-drug protocol," she said. "What safeguards should be in place to ensure that the inmate is unconscious and not experiencing pain. The regulations cover all aspects of an execution."
Attorneys will fight it out before a judge on Friday. But regardless of the outcome, it seems highly unlikely executions will resume before voters have the chance to vote on whether to continue capital punishment in California in November.
