What death penalty lawyers want to ask Schwarzenegger

CDCR

Questions persist about California's lethal injection process.

As reported in the San Jose Mercury News, lawyers for clients on death row want to question former Governor Arnold Schwarzenegger under oath. (Or rather, the deposition stand.) The case at hand is an ongoing federal lawsuit over the state’s lethal injection procedure. Lawyers for the plaintiffs, all men on California’s death row who’ve been slated for execution, claim that the the state’s procedure for executing inmates violates the Eighth Amendment’s ban on cruel and unusual punishment. A corresponding lawsuit claims the procedure interferes with the First Amendment’s guarantee of freedom of the press.

What do these lawyers want to ask the former governor? Mainly, why state officials, when they rewrote the state’s lethal injection procedure, opted to continue using three drugs instead of one. Here’s why that matters. Both the old lethal injection and new lethal injection procedure in California involve multiple injections: the first drug is an anesthetic, meant to put the inmate to sleep; the second paralyzes the inmate; and the third stops his or her heart. The idea is that the inmate, by the time he or she is put to death, is already asleep and can’t feel the pain caused by the heart-stopping drug. In past hearings, lawyers for inmates produced evidence that raised serious questions over whether inmates were actually asleep when they were put to death. Whether issues of properly injecting the drug or the anesthetic’s effectiveness, lawyers said, inmates were likely experiencing serious pain while dying–and no one could tell, because the second drug had paralyzed them. That, inmates’ lawyers contend, is unconstitutional.

Additionally, lawyers for media outlets have challenged this procedure on First Amendment grounds. They say the role of the press in an execution has always been to report back on what exactly transpired during the procedure–in order for the public to understand what goes on and be able to debate capital punishment in a fully informed way.

The state, reacting to some of the criticisms in these lawsuits and orders by Judge Jeremy Fogel, rewrote its lethal injection procedures, which were approved by the state last year. (They haven’t yet been reviewed by the judge.) But lawyers say this new process does not adequately address the core issue of whether or not the inmate is asleep while dying. And yet another lawsuit making its way through the state court system alleges that the state violated an administrative process when it wrote these new regulations–mainly, that the state did not listen to people who lobbied for a change to a one-drug procedure.

So the question for Schwarzenegger, is why use three drugs? Two states, Ohio and Washington, recently switched to a one-drug procedure, involving an overdose of anesthetic. In Washington, which adopted the one-drug protocol in March, state prisons director Dick Morgan said the reason for the change was that, “the one drug protocol is simpler… to administer, and it no longer embroils the department in the legal challenges to the three-drug protocol.” (As a side note, additional legal challenges are surely in the works now that that one drug–sodium thiopental–has gone off the market in the United States and it’s being increasingly replaced with a new anesthetic, pentobarbital.)

It’s unclear why California has opted to continue using all three. It’s also unclear if government officials legally have to reveal their reasoning. In court documents, lawyers from the attorney general’s office argued that Schwarzenegger should not have to answer questions. Questions about decision-making during the process of writing the new regulations, they wrote, has “nothing to do with how California’s current lethal injection regulations will work in practice.”

Rina Palta