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Court won't force California to resume executions

California's lethal injection chamber at San Quentin State Prison.
California's lethal injection chamber at San Quentin State Prison.

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On Monday, Los Angeles Superior Court Judge Larry Fidler denied L.A. County's request for the state to execute two longtime Death Row inmates who've exhausted all of their legal appeals.

For decades, Mitchell Sims and Tiequon Cox have sat on California's male Death Row at San Quentin State Prison in Marin County. That's why earlier this year, the Los Angeles County District Attorney's Office asked a judge to step in and order the state of California to set execution dates for the men. The state, argued Assistant District Attorney Michele Hanisee, has dragged its feet on its legal obligation to carry out the death penalty in California.

The state has been mired in litigation over its lethal injection process for years. On Monday, Hanisee argued that instead of resolving the lawsuits, the "state is going as slow as they can and calling it progress." 

Fidler agreed - but he said that as a criminal trial judge, he lacked the authority to override a civil court order in Marin County or the California State Legislature's direction that a long administrative process is necessary to vet any lethal injection method. 

Attorneys for the inmates argued that the process is lenghty and arduous because it needs to be.

"I see why the state wants to take its time," said Attorney John Grele. "Because they did it so abysmally wrong the first time."

What happens next, Fidler said, depends on the results of the November elections. Voters will decide then on a ballot initiative to end the death penalty in California. 

"If they set aside the death penalty, that's it," Fidler said. "But if they don't, at some point, those who've been duly tried will have to face the will of the people. At some point, this will have to be done in an efficient manner."

Hanisee said her office has not yet decided whether to take Fidler's recommendation that she pursue the case in civil court, where L.A. could directly sue the prison system and the state. 

Why executions are on hold

At the moment, California's Death Row houses 729 inmates. The state's last execution took place six eyars ago. Then a federal judge brought the process to a halt when he ruled that the state's method of execution violated the Eighth Amendment's ban on cruel and unusual punishment. At the time, evidence brought forth in the lawsuit indicated a high number of botched executions at San Quentin, where executioners administered lethal drugs to inmates in a small, dimly lit former gas chamber.  Questions also surfaced about executioners' training and qualifications. At one point, John Grele said, lawyers for the inmates in the suit found that the leader of the lethal injection team had previously been suspended for smuggling drugs into the prison. 

In the years that followed, the state took steps to resume the process: the California Department of Corrections and Rehabilitation built a new lethal injection chamber at San Quentin and rewrote its protocol. Among the changes was an added step, in whichlethal injection team members would gently shake an inmate after they gave him or her a sedative to make sure sleep had set in before they administered a painful, heart-stopping drug.

Last year a state judge in Marin County threw out that protocol, saying the state violated its own rule-writing process when it failed to adequately consider public comment on the process. Particularly, the judge pointed out the state's decision to stick with a three-drug lethal injection process over a one-drug procedure that many consider more humane and less prone to mistakes. 

The state has appealed that ruling. That's one reason Los Angeles County's D.A. is frustrated. In court Monday, Assistant D.A Michele Hanisee submitted evidence that it would be nearly impossible for the state to legally obtain at least one of the drugs that process requires. Pancuronium bromide, the second drug in the series (designed to paralyze the inmate), is no longer manufactured in the United States. Jay Goldman of the state Attorney General's office said California does not have enough of it to carry out an execution. 

Earlier this year, Governor Jerry Brown instructed California's Department of Corrections and Rehabillitation to pursue a single-drug protocol. Lawyers for the state say it has complied. During previous hearings on this case, a consultant to the department testified that the state has written and tested at San Quentin a single-drug protocol. But Goldman did not know when CDCR would begin the official rule-writing process that would allow that protocol to become a law. He estimated that process could take about 10 months once it's started. 

In court Monday, Judge Fidler wondered aloud about why the state continues to appeal court rulings against a three-drug process it apparently couldn't carry out anyway, instead of fast-tracking a new, one-drug process. 

"Though they may be interesting," he said, "we're not going to drag out this litigation to discover some facts."