BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
1
0
1
SB 1018 (Harman) 8
As Amended March 23, 2010
Hearing date: April 20, 2010
Penal Code
MK:dl
DEATH PENALTY: LETHAL INJECTION PROTOCOL
HISTORY
Source: Author
Prior Legislation: AB 2082 (Conroy) Ch. 84, Stats. 1996
Support: Crime Victims United of California
Opposition:Taxpayers for Improving Public Safety
KEY ISSUE
SHOULD THE LAW REQUIRE THE DEPARTMENT OF CORRECTIONS AND
REHABILITATION TO ADOPT A ONE DRUG PROTOCOL FOR EXECUTIONS?
PURPOSE
The purpose of this bill is to require the California Department
of Corrections and Rehabilitation to adopt a one drug protocol
for executions.
Existing law provides that the punishment of death shall be
(More)
SB 1018 (Harman)
PageB
inflicted by the administration of a lethal gas or by
intravenous injection of a substance or substances in a lethal
quantity sufficient to cause death, by standards established
under the direction of the Department of Corrections (CDCR).
(Penal Code 3604(a).)
This bill deletes the word intravenous from the above.
Existing law provides that persons sentenced to death prior to
or after the operative date of this subdivision shall have the
opportunity to elect to have the punishment imposed by lethal
gas or lethal injection. This choice shall be made in writing
and shall be submitted to the warden pursuant to regulations
established by the CDCR. If a person under sentence of death
does not choose either lethal gas or lethal injection within 10
days after the warden's service upon the inmate of an execution
warrant issued following the operative date of this subdivision,
the penalty of death shall be imposed by lethal injection.
(Penal Code 3604(b).)
Existing law provides that where the person sentenced to death
is not executed on the date set for execution and a new
execution date is subsequently set, the inmate again shall have
the opportunity to elect to have punishment imposed by lethal
gas or lethal injection. (Penal Code 3604(c).)
This bill provides that CDCR shall develop and implement a
lethal injection protocol for use on and after January 1, 2013,
that utilizes the injection of a lethal quantity of an
ultra-short-acting barbiturate or other similar drug, not to be
used in combination with a chemical paralytic, in a quantity
sufficient to cause death according to standards established
under the direction of CDCR. This requirement shall not affect
the validity of any existing lethal injection protocol.
This bill provides that after January 1, 2013 the law shall
provide that the punishment of death shall be inflicted by the
administration of a lethal gas or an injection of a lethal
quantity of an ultra-short-acting barbiturate or other similar
drug, not to be used in combination with a chemical paralytic,
(More)
SB 1018 (Harman)
PageC
in a quantity sufficient to cause death according to standards
established under the direction of CDCR.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
(More)
SB 1018 (Harman)
PageD
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
--------------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
(More)
SB 1018 (Harman)
PageE
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
SB 1018 bids the CDCR to develop and implement an
alternative method of lethal injection that is
constitutional, humane and painless. Instead of
maintaining an execution protocol that exposes the
Department to costly, perpetual litigation under the
doctrine of cruel and unusual punishment, SB 1018 orders
the Department to follow the example of several other
states in utilizing a one-drug lethal dose of an
appropriate anesthetic. In conjunction with the newly
revised lethal injection protocol that CDCR introduced
in January, this change would practically resolve cruel
and unusual punishment concerns associated with lethal
injection.
SB 1018 offers a humane, tested procedure that has been
described by the Death Penalty Information Center and
the UC Berkeley Death Penalty Clinic as a "better
alternative" and "an important step." Further, SB 1018
is a timely response to the fact that California's death
penalty system is dysfunctional. Inmates sentenced to
death in California wait an average of 17 years for
resolution of their capital appeals, well above the
national average of 12 years. This unacceptable delay
of justice for both victims and the condemned is largely
a result of protracted appeals, many of which involve
challenges to the three-drug cocktail. By following the
federal judge's orders and establishing a one-drug
(More)
SB 1018 (Harman)
PageF
lethal injection process, SB 1018 will streamline the
death penalty process and ensure that justice for
heinous crimes is swiftly carried out.
2. Morales v. Tilton
In 2006 the United States District Court for the Northern
District of California found in Morales v. Tilton that the
implementation of the protocol for lethal injection in
California is broken:
In fact, this case presents a very narrow question: does
California's lethal-injection protocol--as actually
administered in practice--create an undue and
unnecessary risk that an inmate will suffer pain so
extreme that it offends the Eighth Amendment? Because
this question has arisen in the context of previous
executions, see Beardslee v. Woodford, 395 F.3d 1064
(9th Cir. 2005); Cooper, 379 F.3d 1029, and is likely to
recur with frequency in the future, the Court has
undertaken a thorough review of every aspect of the
protocol, including the composition and training of the
execution team, the equipment and apparatus used in
executions, the pharmacology and pharmacokinetics of the
drugs involved, and the available documentary and
anecdotal evidence concerning every execution in
California since lethal injection was adopted as the
State's preferred means of execution in 1992, see 1992
Cal. Stat. 558. The Court has reviewed a mountain of
documents, including hundreds of pages of legal briefs,
expert declarations, and deposition testimony, and it
has conducted five days of formal hearings, including a
day at San Quentin State Prison that involved a detailed
examination of the execution chamber and related
facilities. The Court concludes that absent effective
remedial action by Defendants--the nature of which is
discussed in Part IV of this memorandum--this exhaustive
review will compel it to answer the question presented
in the affirmative. Defendants' implementation of lethal
injection is broken, but it can be fixed. (Morales v.
(More)
SB 1018 (Harman)
PageG
Tilton, 465 F. Supp. 2d 972, 974 (N.D. Cal. 2006))
The court was clear that the authority to determine the lethal
injection protocol remained with the State but there were some
specific flaws that needed to be addressed:
1. Inconsistent and unreliable screening of execution
team members:
2. A lack of meaningful training, supervision, and
oversight of the execution team:
3. Inconsistent and unreliable record-keeping
4. Improper mixing preparation, and administration of
sodium thiopental by the execution team:
5. Inadequate lighting, overcrowded conditions, and
poorly designed facilities in which the execution team
must work: Morales v. Tilton, 465 F. Supp. 2d 972,
979-980 (N.D. Cal. 2006)
Subsequent to the Morales decision, CDCR began revising their
protocol for lethal injection. Draft regulations were made;
they were put out to comment. Changes were made pursuant to the
comments, and they were put out for comment again. The next
draft is due May 1 at which point they will submit the
regulation to the Office of Administrative Law (OAL) which will
have 30 (business) days to review the regulation. The OAL can
accept or reject the regulation. After the OAL approves the
regulation, the process is officially over, it possible that at
that point additional legal challenges will be brought regarding
the new protocol. The new regulations from CDCR keep the three
drug protocol with the drugs that were being used at the time of
Morales but change the dosage of the first drug, the sedative,
and make other changes regarding the procedures regarding the
administration of the drug.
(More)
3. One Drug
This bill provides that CDCR shall develop and implement a
lethal injection protocol for use on and after January 1, 2013 a
one-drug protocol that utilizes the injection of a lethal
quantity of an ultra-short-acting barbiturate or other similar
drug, not to be used in combination with a chemical paralytic in
a quantity sufficient to cause death.
Ohio and Washington have adopted a one drug protocol for
executions and Ohio has since carried out executions using the
protocol.
Human Rights Watch opposes the death penalty but also believes
that international human rights law requires the employment of
an execution method that will produce the least possible
physical and mental suffering. In a letter to CDCR regarding
the new regulations Human Rights Watch raised concerns:
We appreciate the fact that California has revised its
execution procedure in light of criticisms and concerns
that have been raised in judicial proceedings and
elsewhere. However, we are dismayed to learn that
California's revised execution procedure employs the
same three-drug protocol whose risks have been well
documented by Human Rights Watch and others (see
proposed new section 3349.4.3(b)(2)). We are
particularly concerned by the continued inclusion of
pancuronium bromide. This drug plays no essential role
in the execution process and greatly increases the risk
of a torturous death. Indeed, the risk that paralytics
like pancuronium bromide may mask unnecessary suffering
is so well established that they are banned for use in
animal euthanasia in California and many other states.
(More)
SB 1018 (Harman)
PageI
<2>
This bill would require CDCR to revisit its lethal injection
protocol and adopt a one drug policy in order to simplify the
process and remove the threat of additional legislation that may
occur with the retention of the three drug protocol and
specifically the chemical paralytic.
***************
---------------------------
<2> June 29, 2009 Letter to Mr. Timothy Lockwood Chief,
Regulation and Policy Management Branch, California Department
of Corrections and Rehabilitation from David Fathi Human Rights
Watch.