If Prop 34 Fails, California Could See a Wave of Executions

Once the state's lethal injection protocol is sorted out, defenders may find the Ninth Circuit is no longer as willing, or able, to halt executions.

Scott Graham

2012-10-19 11:30:51 AM

SAN FRANCISCO — For nearly a decade, the state of Arizona didn't execute a soul. Judicial decisions and a dispute over lethal injection protocols had put the death penalty on hold.

But executions resumed in Arizona in 2010 and are now moving at a rapid clip: The state has executed 10 men in the past two years, more than any state other than Texas.

California, meanwhile, has not had an execution in six years because of its own issues with lethal injection. And voters will have the opportunity in November to ban capital punishment altogether.

Polling suggests the vote on Proposition 34 will be close, but the stakes may be even higher than they seem.

Even with a ban in place in California, executions are on the rise in the U.S. Court of Appeals for the Ninth Circuit. Six prisoners have been executed in its nine western states in 2012, the most since 1999. With 14 California inmates already at the end of the line on their habeas claims, and with the appellate court less willing — or able — to grant relief than it was just a few years ago, the pace of executions could easily reach a level unknown in California since the 1960s once the injection issues are resolved.

"It could happen. I think it's definitely plausible," said Berkeley criminal appeals specialist Cliff Gardner. "Has California ever seen anything like it? Not in our adult lifetimes. It may shock some people and may please others."

Congress and the U.S. Supreme Court have been restricting federal review of capital claims since 1996. A decade ago the Ninth Circuit was famous for bucking that trend, but more recently the court seems to be falling into line. Over the past two years, the Ninth Circuit has sided with the government on 39 of 57 capital case decisions, according to Recorder research. By comparison, in 2006 — the last time a prisoner was executed in California — the court voted for death in only five out of 15 decisions.

Even Judge Stephen Reinhardt, arguably the court's most outspoken critic of capital punishment, has voted to deny habeas relief in two capital cases in the last year, albeit under near compulsion by the U.S. Supreme Court.

"I recognize that the law requires us to do what we have just done — ended [Richard] Leavitt's last chance that the Constitution would be complied with before he is executed by the state," Reinhardt wrote in Leavitt v. Arave, 682 F.3d 1138. "This result, however, reflects the deplorable state of the law rather than a determination (on my part, at least) that Leavitt has in fact been treated fairly."

Leavitt was executed by lethal injection in Idaho on June 12.

Kent Scheidegger of the Criminal Justice Legal Foundation, a victim rights organization, agrees the Ninth Circuit has become less of an obstacle. The number of inmates who've exhausted their habeas claims since 2006 — 14 — is more than the entire number executed since California re-established capital punishment in 1977, he points out. "There's nothing but this execution protocol holding them up," Scheidegger says.

But Michael Laurence of California's Habeas Corpus Resource Center says that, despite the U.S. Supreme Court's recent habeas rulings, the playing field hasn't changed. He says the overall rate of habeas petition grants in California has remained fairly steady over the past five years when federal district court and Ninth Circuit judgments are taken as a whole. "What we're seeing is what we've historically seen," he says. "We're not seeing any monumental changes."

Even if California were to match Arizona's recent rate of five executions a year, defense lawyer Gardner notes, it wouldn't put a dent in the huge and growing population of 725 condemned inmates.

UNDUE RISK OF PAIN

California has seemed reluctant to carry out executions. Though the death penalty has been back on the books 35 years, the first did not take place until 1992. Since then only 12 more have been carried out while the death row population has mushroomed. California hasn't conducted more than two executions in a single year since 1962.

Prisoners who do reach the death chamber have a choice between lethal gas and injection. Nobody has chosen gas since 1993. Under the injection protocol, three drugs are administered to cause death — sodium thiopental induces unconsciousness, pancuronium bromide blocks muscular activity, and potassium chloride then causes cardiac arrest. In 2006, U.S. District Judge Jeremy Fogel wrote that poor training and record keeping, plus an execution chamber that wasn't designed for injections, had created undue risk that some inmates were remaining conscious during the severely painful administration of the last two drugs. California's "lethal injection is broken, but it can be fixed," Fogel wrote in Morales v. Tilton, 465 F.Supp.2d 972.

The Department of Corrections and Rehabilitation responded by overhauling its execution chamber and its protocols, but that process has now gotten bogged down in state courts. The First District Court of Appeal ruled in 2008 that the department must comply with California's Administrative Procedures Act, meaning it had to post notice, hold a public hearing and seek public comment, among other things. Last December, Marin County Superior Court Judge Faye D'Opal ruled that the state fell short by, for example, posting the new protocols on the web for only 19 days of the 60-day comment period.

On appeal, the Department of Corrections is arguing that it "substantially complied" with the act, though it acknowledges that "the rulemaking process was not error free." A hearing before the First District is not likely until next year.

In the meantime, the U.S. Supreme Court ruled in 2008 that a single dose of sodium thiopental would be constitutional. In 2010 California attempted to execute Albert Greenwood Brown under that single-drug protocol, but the Ninth Circuit blocked the attempt because California had not yet developed procedures for single-drug injection.

With the single-drug protocol blessed by the Supreme Court, pressure is mounting on California Governor Jerry Brown and attorney general Kamala Harris to adopt that approach here. Scheidegger's organization tried, unsuccessfully, to force the issue via a writ of mandate in the Third District in April. Los Angeles district attorney Steve Cooley and San Mateo DA Stephen Wagstaffe have brought similar actions in superior court. A Los Angeles judge denied Cooley's motion last month, but it was revealed at a hearing that the state has been contracting with a former corrections official to start developing a one-drug protocol.

Scheidegger said he hopes Brown will stop "dragging his feet" if voters reject Prop 34 next month. If the administration "continues to use a method that has been enjoined, then we'll have to find the correct vehicle" to change that, he says.

NINTH CIRCUIT HARDER TO PERSUADE

Most of the capital habeas cases now reaching the Ninth Circuit were filed after 1996, when Congress passed the Antiterrorism and Effective Death Penalty Act, which requires federal courts to defer more to state court judgments. The U.S. Supreme Court has interpreted the law strictly, repeatedly reversing the Ninth Circuit for being too interventionist.

Defense lawyers acknowledge those cases have had an impact. They point in particular to Cullen v. Pinholster, 131 S.Ct. 1388, a Supreme Court decision last year that blocks federal courts from considering evidence that wasn't part of the state court record, and Harrington v. Richter, 131 S.Ct. 770, a life-without-parole case which held that AEDPA deference applies even when state courts haven't explained their reasons for denying a habeas petition.

Ninth Circuit Chief Judge Alex Kozinski agreed with their assessment. "No doubt AEDPA has a big effect, and the fact that we've had a number of strongly worded opinions from the Supreme Court" limiting habeas relief to unreasonable applications of clearly established law, he said.

That standard, as interpreted by the Richter line of cases, "really leaves very little room," he says. "Ten years ago, 15 years ago, we had quite a bit more latitude."

AEDPA also sets an extremely high bar to getting consideration for a second habeas corpus petition. Idaho inmate Gerald Pizzuto Jr. alleged in a second petition that the judge who sentenced him to death helped negotiate his co-defendant's testimony before trial at a meeting with the prosecutor and co-defendant's counsel at a local restaurant. The co-defendant counsel's billing records corroborated the meeting, but the Ninth Circuit was unmoved.

"If true, these allegations raise troubling issues about Pizzuto's trial," Judge Ronald Gould acknowledged last March in Pizzuto v. Blades, 673 F.3d 1002. "However, without minimizing those allegations, we must follow AEDPA's 'extremely stringent' requirements." To do that, Gould explained, Pizzuto would have to show not only that he received an unfair trial, but that he was actually innocent of the charges.

DYING OF OLD AGE

Defense lawyers say California's capital punishment system is broken and resolving lethal injection issues won't fix it because the sentences themselves are flawed.

The overall rate of relief in federal court remains high when district courts are included along with the Ninth Circuit, says Laurence, of the Habeas Corpus Resource Center. The California Commission on the Fair Administration of Justice pegged the rate of petition grants at 70 percent in 2007. Even with the growing influence of AEDPA, that number has since dropped only to 63 percent, a decline Laurence says isn't meaningful.

And some 330 inmates still haven't been appointed habeas counsel, he adds, meaning decades of litigation likely remain ahead for them. "The vast majority of these people are going to die in prison of old age," he says.

Santa Clara University law professor Gerald Uelmen, who was executive director of the Fair Administration of Justice commission, said even if Prop 34 fails, a relatively close vote might discourage the Legislature from paying out the extra $100 million-plus per year the commission identified as necessary to make the system workable.

"I'm afraid if it goes down, we're going to limp along with a dysfunctional system another two or four years," said Uelmen, a Prop 34 supporter.

BAN ENDS IN ARIZONA

Arizona was in a similar spot several years ago. Executions were on hold from 2000 to 2006 due to a series of U.S. Supreme Court rulings. Once that was resolved, prisoners began challenging the lethal injection protocols. With the exception of one inmate who voluntarily chose death in 2007, the first execution wasn't scheduled until October 2010. Even then, a federal judge blocked it at the last minute because the state would not say who was providing its sodium thiopental. The Ninth Circuit affirmed on Oct. 26, but hours later the Supreme Court lifted the stay and Jeffrey Landrigan was executed that same night.

Nine more Arizona prisoners have been executed since, with injection protocols remaining a contentious issue, often up to the day of execution.

If California's protocol issues were resolved, "I think the cases would start to move," said Dale Baich, who coordinates capital litigation for the Arizona federal defender's office, including four California cases via an arrangement with the S.F. federal defender and the courts.

"After 10 years of not having to deal with warrants or executions, I think it is causing some strain," he said. "At one moment we're zealously litigating claims, and the next moment we're having to talk with our client about preparing to die."