Death by execution has its own protocol — a formal process that has been the subject of a federal court hearing in San Jose this week.
And to read Procedure 770, the state’s official 39-page handbook on how to execute condemned inmates, you might think that California really does have a good argument that it has found a kindler, gentler way to kill some of its most loathsome criminals. After all, with every detail laid out — the number and dose of the injections, the lineup of the all-volunteer execution team, the number of towels and blankets and pillows, even what will be stocked in the inmate’s overnight cell — one can see that the ritual is designed to avoid mistakes in timing and judgment.
But the human element — the condemned convict and the members of the execution team — doesn’t lend itself to cool, controlled efficiency, which is why U.S. District Judge Jeremy Fogel has been delving into how lethal injections work and whether there is a better procedure that doesn’t violate the constitutional amendment barring cruel and unusual punishment. Fogel has said records of six of the 11 lethal injections performed in California since 1996 show the process may not have worked properly, and he is trying to determine if Procedure 770 poses a significant risk of causing extreme pain.
It might be fair to say all executions are a form of cruel punishment, and the hearings may lend themselves to the larger question of whether California should continue executions — a notion that is gaining in popularity, though not enough yet to stop mandated deaths.
But executions themselves are not the subject of the court’s interest this week, just the manner in which they are carried out. And if you looked at the guidelines for Procedure 770, you might think it was as simple as putting someone to sleep permanently. Simple — except when the numbers don’t quite follow the guidelines and something straightforward turns out unexpectedly and horribly.
The problem with the procedure, which is similar to practices followed in 37 other states, is that the effects of the drugs, the dosage levels and the sequence of injections has never been studied by physicians. And the gruesome records compiled by the Death Penalty Information Center in Washington, D.C., would seem to indicate that many people who were executed by lethal injection suffered lengthy, ghastly deaths. One doctor testified this week that some inmates were still conscious after receiving the first drug and then were essentially suffocated by the second, in cases that he described as “excruciating” deaths. The doctor blamed the problem on the use of untrained personnel to administer drugs and then monitor their effect.
“The essential question that is being looked at is when you put these procedures in the hands of the prison personnel, do the procedures work the way they are supposed to?” said Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley’s Boalt Hall School of Law. “Do these drugs in this combination work a certain way and what is the skill and experience of those administering the drugs? Some of the horror stories that we’ve heard had to do with the lack of qualifications of the personnel.”
For there are always ghoulish qualities when governments kill. And you can go back just nine years to remember when “Sparky,” as Florida’s electrocution chair was called, resulted in foot-high flames shooting from the head of convicted killer Pedro Medina, filling the execution chamber with smoke and gagging two dozen witnesses.
When Illinois serial killer John Wayne Gacy was executed, the lethal chemicals he was injected with unexpectedly solidified, clogging the IV tube. It took nearly 30 minutes to replace the tube and start again — a blunder that anesthesiologists blamed on the inexperience of prison officials.
There is little doubt that death penalty advocates and certainly most victims’ families would say that even a botched and painful execution would be justified for people they believe deserve such a fate. But a vengeful policy of administering justice seems to lack a level of humanity — especially when carried out by people who may be untrained and ill-suited for the task.
Maybe the only saving grace is that because of the incredibly drawn-out appeal process, only 13 people have been executed in California since the state reinstituted the death penalty in 1977. So an inefficient government has proved to be one of the determining factors in making sure California differs sharply from Texas in doling out man-made justice.