California's dormant death penalty system faces another legal test

Story originally appeared on Contra Costa Times.

Now more than seven years since the last execution in California, the state this week will try again to revive its dormant death penalty system in an appeals court considering the latest legal tangle over San Quentin's lethal injection procedures.

In a hearing Tuesday, the 1st District Court of Appeal will review a Marin County judge's 2011 order stopping executions because prison officials failed to comply with administrative rules in revising California's three-drug execution method. The Brown administration appealed the ruling, likely assuring the state will not execute anyone this year on its 734-inmate death row.

Even as the appeal proceeds, prison officials continue to craft a new execution procedure that would rely on a single drug to put condemned killers to death, similar to methods other states such as Arizona, Washington and Ohio set up to short-circuit challenges to the three-drug procedures. A prison spokeswoman said last week there is no timetable for adopting a single-drug method.

But California appears a long way from resolving a morass of state and federal legal battles over lethal injection.

Switching to the single-drug approach would likely require a new round of administrative hearings, which could take a year or more. Resolution of the legal battle in the 1st District would only pave the way for a return to the federal courts, which first put executions on hold in 2006. And states across the country, including California, are facing fresh problems over a shortage of drugs used in executions, and questions over whether they've obtained them legally from overseas manufacturers.

"With California, even if they have a (method in place), that's not the last issue," said Deborah Denno, a Fordham University law professor. "Any state like California moving so glacially is going to be really behind."

The San Francisco-based 1st District will hear arguments in one aspect of California's legal problem. In response to a federal judge's orders, the state in 2010 adopted new execution procedures designed to address concerns inmates might suffer an inhumane death during the lethal injections; those included changes in training, how the drugs are administered and the construction of a new execution chamber.

But in Marin County, Superior Court Judge Faye D'Opal found the state did not comply with the administrative rules and blocked San Quentin from using the new procedures. Among the findings was that prison officials failed to explain why the state did not choose the single-drug method, which involves a fatal dose of a sedative, despite the fact California's own expert recommended that alternative.

In court papers, Attorney General Kamala Harris' office argues the state did more than enough to satisfy the rules, including holding public hearings and considering more than 29,000 public comments. Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said such administrative rules should not take precedence over enforcement of a state law such as the death penalty statute.

"The (judge) in this case completely failed to tailor its remedy to minimize interference with enforcement of the law punishing murder, a law of the highest importance," he said.

But Steven Mayer, the lawyer for death row inmates challenging the procedures, said prison officials "hellbent on doing whatever they wanted to do" botched the effort.

"What's unusual about this case is how bad a job the (California prison department) did," Mayer said.

The appeal is unfolding in the aftermath of November's narrow defeat of Proposition 34, which would have abolished California's death penalty. Death penalty foes are already mobilizing for another try to take the issue back to the voters.

Meanwhile, if the courts clear the way, California would experience an unprecedented rush of executions because more than a dozen death row inmates have lost their final legal appeals and are eligible for firm execution dates, including condemned Alameda County killer Harvey Lee Heishman and San Mateo County's Robert Green Fairbank Jr.