Schwarzenegger changes strategy in execution debate

http://www.latimes. com/news/ local/la- me-california-
executions24- 2009feb24, 0,4741751. story
From the Los Angeles Times

Schwarzenegger changes strategy in execution debate
In a bid to hasten the return to capital punishment, California will
submit revised lethal injection rules for public review rather than
keep appealing court decisions that deemed them illegal.
By Carol J. Williams and Maura Dolan

February 24, 2009

Gov. Arnold Schwarzenegger and his lawyers have switched strategies
in the legal battle to resume executions, agreeing to submit revised
lethal injection protocols for public review rather than continue
appealing state court decisions that the redrafted rules are illegal.

FOR THE RECORD: An earlier version of this article said U.S. District
Judge Jeremy Fogel imposed a moratorium on executions in California.
Fogel issued a ruling that led to the state's moratorium.

Although the move is intended to speed up a return of capital
punishment, conservative law-and-order advocates and victims' rights
groups expressed frustration over the persistent delays.

State officials predict the execution procedures could be approved by
a state panel in six months to a year, clearing the way for a federal
judge to lift a moratorium on executions.

San Quentin's death row, the nation's largest, houses 680 prisoners.

The state attorney general's office, on behalf of the corrections
department, had been fighting a Marin County judge's ruling 14 months
ago that the way the new procedures were drafted violated state law.
The 1st District Court of Appeal upheld the Marin County judge in
November, and the period for appeal to the California Supreme Court
has expired.

"We took a look at the case, and our determination is that the most
expeditious way for us to resume the will of the people and carry out
capital punishment is to go through the Administrative Procedures Act
process in spite of the fact that we disagree with the court
rulings," said Seth Unger, spokesman for the California Department of
Corrections and Rehabilitation.

The act requires that any policy changes affecting more than one
institution submit to a 60-day period for public comment. It also
requires review by an independent state agency.

Throughout the challenges, the governor and state lawyers have
disputed the contention that the new rules needed to go through the
paces of the Administrative Procedures Act because only one prison,
San Quentin, carries out executions.

While complying with the Administrative Procedures Act for the sake
of expediency, Unger said the corrections department was
simultaneously asking the California high court to "depublish" the
November appeals court decision on grounds that it was "wrongly
decided." He said department lawyers were concerned that the ruling
could create administrative havoc across the prison network.

Executions have been on hold for three years while the state, as well
as the nation, probed concerns that the three-drug injection regime
may have failed to render some condemned men unconscious before the
fatal last dose, exposing them to unconstitutional pain and suffering.

California's last execution was in December 2005, when 76-year-old
Clarence Ray Allen was put to death.

U.S. District Judge Jeremy Fogel issued a ruling that led to the
state's moratorium on Feb. 21, 2006, when he effectively stayed the
execution of convicted murderer Michael Morales. The judge ordered
review of claims that the procedures violated the 8th Amendment ban
on cruel and unusual punishment.

Under the former as well as the pending protocols, a barbiturate is
supposed to anesthetize the recipient before a second drug induces
paralysis and a third stops the heart. If the first drug fails, the
second would leave the inmate incapable of expressing the intense
pain inflicted by the final dose.

A task force created by the governor in 2007 redrafted execution
procedures to ensure proper doses and improve staff training.

But before Fogel could review the changes, Morales' attorneys brought
his challenge in Marin County, where San Quentin is located.

Morales attorney Brad Phillips said he interpreted the state lawyers'
change in tactics to having "simply realized that we are right about
the law."

Kent Scheidegger, legal director of the Criminal Justice Legal
Foundation, criticized the state for failing to pursue the public
review at the same time it appealed the state court's ruling.

"If they were going to go the administrative route, they could have
started that two years ago when all this came up," said the top
lawyer for the law-and-order group.

Scheidegger also said he was not optimistic that Fogel would move
quickly after the state issue is resolved, despite a U.S. Supreme
Court ruling last year that similar protocols challenged in Kentucky
met constitutional scrutiny.

"Crime victims are going to be outraged," said Nina Salarno Ashford,
executive director of Crime Victims United of California. A witness
to five executions who has pronounced them "humane," Ashford blamed
the governor for the latest delay.

A spokeswoman for Schwarzenegger, Lisa Page, would say only that the
governor isn't the official state party in the case brought against
the corrections department.

But Schwarzenegger has been an ardent champion of capital punishment,
recently observing that he would resume executions "immediately --
yesterday," once the legal obstacles were removed.