Statement:

The Department of Corrections is mandated by California Penal Code Section 3604(a) to carry out punishment of death by lethal gas “or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death…” and does not violate the Eighth Amendment of the United States Constitution.

Scope:

This paper will address the recent informal moratorium in California death penalty cases caused by an appeal brought on behalf of a condemned man, claiming that death by lethal injection might cause him pain and, subsequently would violate his constitutional rights pursuant to the Eighth Amendment protection against the use of cruel and unusual punishment. I will discuss the history of the death penalty in California and the United States, and specifically address the issues raised in similar cases, as well as landmark decisions regarding the controversial topic of the death penalty. I will not address whether the death penalty is morally right or wrong. It is the law. I will, however, address the laws which have been in effect almost continuously for over 200 years, and what I feel are the intentional mechanizations of death penalty opponents to inhibit and undercut the state’s obligation pertaining to said laws to carry out the executions as ordered.

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"The Fifth Amendment provides that ‘no persons shall be held to answer for a capital…crime, unless on a presentation or indictment of a Grand Jury…nor be deprived of life…without the due process of law.’ This clearly permits the death penalty to be imposed, and establishes beyond doubt that the death penalty is not one of the ‘cruel and unusual punishments’ prohibited by the Eighth Amendment."

▪ Supreme Court Justice Antonin Scalia FN1

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Research:

1. Historical Timeline

· The Eighth Amendment of the United States Constitution provides “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” FN2 This Amendment was addressed by Congress by way of annotation in the Annals of Congress 754 (1789) providing No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind. FN3 (Emphasis added.) Obviously the law makers of 1789 were prescient of the circumstances this country would face in trying to administer justice as proscribed by law.

· February 14, 1872: Capital punishment is authorized by the California Penal Code.

· 1891: The law regarding capital punishment is amended to allow for executions to occur inside the prison only (as opposed to the county sheriffs).

· March 3, 1893: Jose Gabriel is executed by hanging at San Quentin State Prison in the first state-conducted execution.

· August 27, 1937: The gas chamber replaces hanging as method of execution.

· December 2, 1938: Robert Lee Cannon and Albert Kessel are the first to be executed in the San Quentin gas chamber.

· May 1, 1942: The last hanging occurred at San Quentin.

· February 18, 1972: The California Supreme Court declares the death penalty cruel and unusual in violation of the state constitution. Inmates are resentenced.

· August 11, 1977: The Legislature re-enacts the death penalty, with revisions as to special circumstances warranting the death penalty.

· November 7, 1978: The voters of California approve a broader death penalty law which replaces the 1977 statute.

· April 21, 1992: Executions resume and Robert Alton Harris is executed.

· August 27, 1992: Lethal injection is added as a method of execution and inmates are given the choice between injection or lethal gas.

· October 4, 1994: The gas chamber is deemed cruel and unusual punishment and therefore unconstitutional. Lethal injection is the sole method of execution.

· February 23, 1996 – January 17, 2006: Executions continue sporadically. FN4

· February 14, 2006: The scheduled execution of Michael Angelo Morales for February 21, 2006 is stayed due to the order of United States District Court Judge Jeremy Fogel wherein it is ordered that a “qualified individual” in the field of “general anesthesia” is ordered to be present in the death chamber to assure that the inmate is unconscious until pronounced dead. FN5 Due to the Hippocratic Oath taken by physicians to “cause no harm” FN6, a “qualified individual” could not be found in time and the execution was stayed pending further proceedings. Due to this ruling, other executions are stayed until the constitutionality of lethal injection can be addressed. Matter rescheduled to September, 2006 for further proceedings.

· April 26, 2006: The United States Supreme Court hears the case of Florida condemned Clarence Hill and will determine whether inmates can file last-minute civil rights challenges claiming their executions would be cruel and unusual punishment. A ruling is expected in July, 2006.

2. Methods of Execution

The literal “means to the end” have changed during the last 100+ years. In the 1890’s hanging was the primary means of execution in this country. The firing squad was another method used and is still a current method in Utah and Idaho. The gas chamber and electric chair were former methods of execution and death by lethal gas is still used in five states. In 1977, Oklahoma became the first state to utilize lethal injection as a method of execution. Lethal injection usually calls for a 3-drug combination: sodium pentothal (an anesthetic, also called Thiopental sodium), pancuronium bromide (a paralytic agent, also called Pavulon) and potassium chloride (stops the heart and causes death). FN7 Today, 37 of the 38 states that have a death penalty use lethal injection. FN8

3. California Law and People v. Michael Angelo Morales

Penal Code Section 3604 defines implementation of the death penalty in California. FN9 It is not vague or ambiguous. The terms are quite clear and the language is not muddied by too much legalese. It states:

“(a) The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.

Michael Morales was convicted by jury of the rape and murder of 17 year old Terri Lynn Winchell on April 6, 1983. The jury found that Morales had committed the murder while lying in wait, by means of torture, and that he had used a knife and a hammer during the commission of these crimes. Given the finding of the special circumstances, Morales was eligible for either life in prison without possibility of parole or death. The jury returned with two verdicts sentencing Morales to death as a consequence of his crimes.

During the past 23 years, Morales has been to court on appellate issues several times…all unsuccessfully. In addition to his appeal based on Eighth Amendment issues, Morales also sought clemency from the Governor. Given his criminal background, any grant of clemency must be approved by the Supreme Court. Morales even admitted his crimes to a jailhouse informant, as well as two other women. Overwhelming physical evidence, including the victim’s blood, was found in his room on the date he was arrested. All appeals were denied.

February 21, 2006 was the third execution date set for Morales. This is an important fact. At no other time in the 23 years leading up to this date did this condemned man seek to challenge his sentence and method of death due to its constitutionality. FN10

However, Mr. Morales, as others like him, sought the court’s last-minute intervention by instigating a review of the methodology of this state’s lethal injection protocol. He contended that the current method creates an undue risk of causing him “excessive pain as he is being executed, thereby violating the Eighth Amendment’s command that ‘cruel and unusual punishment not be inflicted.’ In his amended complaint, Morales argued that the three drugs used during the lethal injection procedure present an undue risk that he will be conscious when the pancuronium bromide and the potassium chloride are injected. Undercutting any potential validity of this contention are the facts. As stated in the declaration of Dr. Mark Dershwitz, “over 99.999999999999% of the population would be unconscious within sixty seconds from the start of the administration of the five grams of thiopental sodium” and that “this dose will cause virtually all persons to stop breathing within a minute of drug administration. Therefore…virtually every person given the five grams of thiopental sodium will have stopped breathing prior to the administration of the pancuronium bromide.” FN11 (Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) at 10320 FN12. As referenced in Section 1, Judge Fogel “conditionally denied” Morales’s complaint that the death penalty protocol as proscribed by law was unconstitutional, creating instead the manufactured complication of precisely who will administer and monitor this protocol.

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“The Eighth Amendment forbids ‘cruel and unusual punishments.’ In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power.”

▪ Supreme Court Justice Harry Blackmun FN13

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4. A Look Back: Seminal Death Penalty Cases

1972 was a big year for court decisions involving the constitutionality of the death penalty. The California Supreme Court held that the state’s death penalty law violated the California constitutional prohibitions against “cruel and unusual punishment” in People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal.Rptr. 152 (cert. denied), 406 U.S. 958 (1972) FN14 Later that year, the voters of California showed their displeasure for to this holding by approving Proposition 17, a constitutional amendment sanctioning capital punishment. In spite of this, the United States Supreme Court decision in the landmark case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) FN15, rendered just four months after Anderson, blocked Proposition 17 from restoring the death penalty.

Furman was one of three capital cases addressed by the Supreme Court. Petitioner Furman was convicted of murder in Georgia and was sentenced to death. In companion cases Jackson v. Georgia, 408 U.S. 238 (1972) Petitioner Jackson was convicted of rape in Georgia and sentenced to death FN16, and in Branch v. Texas, 408 U.S. 238 (1972) Petitioner Branch was convicted of rape in Texas and sentenced to death FN17. The United States Supreme Court granted certiorari limited to the following questions: “Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” The court held that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendment due to the allowance for juries unguided discretion to impose the death penalty. Thus, the states’ capital death statutes were invalidated as unconstitutional by the Supreme Court, and judgments in each case were reversed and remanded for further proceedings. There was no majority opinion in Furman. Each justice wrote an opinion and the implications of the holding were far from clear.

In response to Furman, California next adopted a mandatory death penalty method in 1973. This statute imposed the death penalty for first degree murder if the trier of fact found particular enumerated special circumstances existed. However, due to the United States Supreme Court’s decision in Gregg v. Georgia, 428 U.S. 153 (1976) FN18, ruling that mandatory death sentencing schemes were unconstitutional), the California Supreme Court issued a unanimous decision striking down California’s mandatory death penalty law in Rockwell v. Superior Court, 18 Cal.3d 420, 556 P.2d 1101, 134 Cal.Rptr.650 (1976) FN19.

Again the Legislature responded quickly to the holding in Rockwell. In 1977, over a gubernatorial veto, California Senate Bill 155 attempted to conform California’s procedures to those held in Gregg and its companion cases. FN20 The bill provided that a person convicted of first degree murder could be sentenced to death if the trier of fact found that one of seven special circumstances existed and decided on death after weighing both the aggravating and mitigating factors that were present in each case. In 1978, the voters approved Proposition 7 FN21, which expanded on the list of special circumstances that could be imposed and altered the procedures for weighing mitigating and aggravating circumstances in capital cases. The California Supreme Court has upheld Senate Bill 155 and the subsequent proposition.

In the election of 1990, the voters of California approved Propositions 114 and 115, which again enlarged the list of special circumstances in which the death sentence could be rendered FN22. Proposition 115 also amended the state constitution by preventing any interpretation giving greater rights to defendants than those provided by the federal Constitution. However, the California State Supreme Court invalidated this provision, finding that it equaled a qualitative constitutional revision which could not be made through the initiative process. Raven v. Deukmejian, 52 Cal.3d 336, 801 P.2d 1077, 276 Cal.Rptr.326 (1990) FN23

The continual response of the people of the state of California to federal court cases seeking to limit or do away with capital punishment clearly indicates its overwhelming need to keep the death penalty and its requisite provisions alive.

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“The use of the due process clause to disable the States in protection of society from crime is quite as dangerous and delicate a use of federal judicial power as to use it to disable them from social or economic experimentation.”

▪ Supreme Court Justice William Rehnquist FN24

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5. Where Are We Going?

As mentioned above, the Supreme Court may be having a sense of déjà vu as it addresses the issues of Clarence Hill. Hill v. McDonough, 05-8794 (126 S. Ct. 1189; 163 L. Ed. 2d 1144; 74 U.S.L.W. 3437) FN25 Mr. Hill is convicted of murdering a police officer during the commission of a robbery in 1982. Hill was literally granted a last-minute stay of execution in Florida by the United States Supreme Court to address his appeal challenging Florida’s use of lethal injection as cruel and unusual punishment. He was already strapped to a gurney with IV tubes running into his arms, prepared to receive his death sentence. This appeal, and the anticipation of the Supreme Court’s decision during the summer of 2006, has halted executions in Florida as well as other states, at least temporarily. During its hearing on April 26, 2006, Supreme Court Justices differed when commenting on how states should execute its condemned. Justice John Paul Stevens was quoted as stating “Your procedure would be prohibited if applied to dogs and cats.” Conversely, Justice Antonin Scalia stated that the Constitution does not require painless death. “Hanging was not a quick and easy way to go.” Ironically, Hill’s lawyer stated that Hill accepts that he can be executed for killing the police officer. He just does not want to suffer. Upon hearing this, Justice Souter stated “why does he have an obligation…to tell the state how to execute people?” Furthermore, Justice Anthony Kennedy queried “Doesn’t the state have a minimal obligation on its own” to investigate whether its executions cause gratuitous pain? Florida’s use of the three-drug combination in performing its lethal injections is similar to those employed in other states (e.g. sodium pentothal, pancuronium bromide and potassium chloride). Justice Stephen Breyer stated that it “doesn’t seem too difficult” to alter the drugs because of concerns that the state should not “have any interest in causing pain.” FN26

The ruling of the court will deal with the limited part of the subject of whether or not the inmates can file special last-minute civil rights challenges to the chemicals used in lethal injection, even if inmates have exhausted all their other regular appeals. The court’s decision to hear this case has fueled legal efforts around the country to prevent executions of condemned prisoners. Executions have been blocked in California, Maryland and Missouri. Executions in Texas, Indiana, Ohio, North Carolina, Oklahoma and Virginia have proceeded as planned. FN27

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“It seems remarkable to me that with our basic trust in lay jurors as the keystone in our system of criminal justice, it should now be suggested that we take the most sensitive and important of all decisions away from them. I could more easily be persuaded that mandatory sentence of death, without the intervening and ameliorating impact of lay jurors, are so arbitrary and doctrinaire that they violate the Constitution. The very infrequency of death penalties imposed by jurors attests their cautious and discriminating reservation of that penalty for the most extreme cases…The 19th century movement away from mandatory death sentence marked an enlightened introduction of flexibility by the category of the crime committed. This change in sentencing practice was greeted by the Court as a humanizing development. I do not see how this history can be ignored and how it can be suggested that the Eighth Amendment demands this elimination of the most sensitive feature of the sentencing system.”

▪ Supreme Court Chief Justice Warren Burger FN28

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Conclusion

Currently, California is unable to comply with Penal Code Section 3604(a). The order of Judge Fogel in the Morales case has crippled the ability of the state to perform the duties that the people of this state have repeatedly and overwhelmingly approved. While on its face, his ruling conditionally denied Morales’ complaint, he effectively tied the hands of the correctional facilities in performing the tasks mandated in its lethal injection protocol by making the execution conditional on the participation of “qualified professionals” in the field of anesthesia in a professionally unethical situation. By a stroke of his pen, Judge Fogel has created a judicial Catch 22, effectively denying the people of the state of California its statutory right to impose the laws that have been passed in the administration of final justice.

Here are some interesting statistics about capital punishment: As of January 1, 2006, there are currently 649 inmates on death row in California…more than any other state. Equally compelling was the statistic that the total number of executions since 1976 through March 30, 2006 in California totaled 13, compared to 363 executions during the same time period in Texas. Furthermore, opinion polls consistently show that a majority of Americans support the death penalty. A May 2005 Gallup poll found that 74% of respondees were in “favor of the death penalty for a person convicted of murder.” In the same poll, when life imprisonment without parole was provided as an option as punishment for murder, 56% supported the death penalty and 39% supported life imprisonment (5% offering no opinion). To further underscore the public sentiment on this issue, three justices were removed from the California Supreme Court in 1986 by the voters due to their opposition to the death penalty. FN29

Those that find themselves on death row did not arrive by accident. It was the decision of a jury of their peers who were sworn to render a true verdict according to the evidence presented. The jury heard the testimony of the witnesses. The jury saw the demeanor of the witnesses, the sometimes gruesome physical evidence presented. The jury touched the murder weapons, the victim’s clothing, and other tangible reminders of the cost of the crime. And ultimately, the jury heard testimony submitted on behalf of the accused during the penalty portion of the case, and returned a unanimous verdict that the appropriate punishment, as permitted by the laws of the state of California, was death.

Citizens of this country are all too familiar with the 11th hour desperation which sends attorneys to their federal court of appeal district in a last ditch effort to save their clients from execution. The drama that surrounds the moment is fodder for books and movies. The execution chamber is not, however, a Hollywood sound stage.

The recent challenge to California’s death penalty presented in Morales is an insult to the justice system that has taken such meticulous care to assure that defendants are afforded every possible opportunity to avail themselves of legal solutions. The law was not established as a creative outlet for abuse by its agents in manufacturing frivolous accusations based on specious or unsustainable assertions.

Death, by its very nature, is not a painless event. I am sure there are many people who have been gradually destroyed by the ravages of cancer and other diseases who would gladly opt to have the release of death provided by administration of the three drugs used in lethal injection. I believe the same can be said for those suffering from heart attacks, strokes, car accidents. It goes without saying that the victims of murder would have most likely preferred to exit this life virtually pain free. I have personally witnessed the death of a member of my family in a controlled setting (a hospital). She was mercifully given a variety of pain medications by the doctors that masked the disintegration of her otherwise healthy body to the cancerous disease. However, in the final minutes, as each breath became more sporadic and labored, and despite large amounts of morphine and other medications, she was in obvious pain and distress as her breathing became slower and her heart ultimately stopped.

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“We threaten punishments in order to deter crime. We impose them not only to make the threats credible but also as retribution (justice) for the crimes that were not deterred…By committing the crime, the criminal volunteered to assume the risk of receiving a legal punishment that he could have avoided by not committing the crime…Execution of those who have committed heinous murders may deter only one murder per year. If it does, it seems quite warranted. It is also the only fitting retribution for murder I can think of.”

▪ Ernest van den Haag FN30]

Even if you personally disagree with Mr. van den Haag’s conclusion, the fact remains that in and of itself, capital punishment (through evolving methodology) has been upheld as constitutional repeatedly throughout our nation’s history. Until and unless the United States Constitution is amended abolishing capital punishment in any manner, the current challenges are nothing more than disingenuous, convoluted and reprehensible attempts to circumvent the established letter of the law, and prevent the people of the United States from receiving the justice they are guaranteed.

Footnotes:

FN1 Supreme Court Justice Antonin Scalia, quoting from an opinion concurring in the Supreme Court’s decision denying review Callins v. Collins, a Texas death penalty case, February 22, 1994.

FN2 United States Constitution, Amendment VIII

FN3 Annals of Congress 754 (1789), Annotations to the Eighth Amendment, http://caselaw.lp.findlaw.com/data/constitution/amendment08/03.html#1

FN4 “The History of California’s Death Penalty,” www.deathpenalty.org/index.php?pid=history&menu=1%22

FN5 Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction, Michael Angelo Morales v. Roderick Q. Hickman, et al., Case Nos. C 06 219 JF, C 06 929 JF RS, United States District Court for the Northern District of California, San Jose Division, filed February 14, 2006

FN6 Hippocratic Oath, http://en.wikipedia.org/wiki/Hippocratic_Oath

FN7 “Descriptions of Execution Methods,” http://www.deathpenaltyinfor.org/article.php?scid=8&did=479

FN8 “Lethal Injections: Some Cases Stayed, Other Executions Proceed,” www.deathpenalty.info.org

FN9 California Penal Code Section 3604, subsection (a), http://law.onecle.com/california/penal/3604.html

FN10 People v. Michael Angelo Morales, Background Information, http://ag.ca.gov/victimservices/pdf/aamorales_presspack.pdf

FN11 Order Denying Conditionally Plaintiff’s Motion for Preliminary Injunction, Michael Angelo Morales v. Roderick Q. Hickman, et al., supra, pages 8 and 9

FN12 Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004) is the case of a state prisoner, sentenced to death by lethal injection, filed a Section1983 action seeking a temporary restraining order. The district court denied relief and the prisoner appealed. The appeals court affirmed, finding that the prisoner failed to show that lethal injection was unconstitutional.

FN13 Justice Harry Blackmun, quote taken from his dissenting opinion in Furman v. Georgia, 408 U.S. 238 (1972)

FN14 People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal.Rptr. 152 (cert. denied), 406 U.S. 958 (1972), ruling California’s death penalty was cruel and unusual punishment under California’s constitution.

FN15 Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), one of three cases heard by the United States Supreme Court invalidating as unconstitutional state capital death statutes which allowed juries unguided discretion to impose death penalty.

FN16 Jackson v. Georgia, 408 U.S. 238 (1972) one of the three cases, (see Furman), which invalidated the state capital death statutes as unconstitutional.

FN17 Branch v. Texas, 408 U.S. 238 (1972) one of the three cases, (see Furman), which invalidated the state capital death statutes as unconstitutional.

FN18 Gregg v. Georgia, 428 U.S. 153 (1976) United States Supreme Court ruling that mandatory death sentencing scheme was unconstitutional.

FN19 Rockwell v. Superior Court, 18 Cal.3d 420, 556 P.2d 1101, 134 Cal.Rptr.650 (1976), striking down California’s mandatory death penalty sentencing scheme.

FN20 California Senate Bill 155, “Ninth Circuit Capital Punishment Handbook, California”

FN21 Proposition 7, “Ninth Circuit Capital Punishment Handbook, California”

FN22 California Propositions 114 and 115, “Ninth Circuit Capital Punishment Handbook, California”

FN23 Raven v. Deukmejian, 52 Cal.3d 336, 801 P.2d 1077, 276 Cal.Rptr.326 (1990) California Supreme Court case rejecting the contention that the death penalty provisions in Proposition 115 were unconstitutional; however, also finding that a provision in Proposition 115 prevented construction of state constitution to allow greater rights that those given by the U.S. Constitution as unconstitutional as interpretive amendment of the state constitution and not allowed by the initiative process.

FN24 Supreme Court Justice William Rehnquist, quote taken from his dissenting opinion in Furman v. Georgia, 408 U.S. 238 (1972)

FN25 Clarence Hill. Hill v. McDonough, 05-8794 (126 S. Ct. 1189; 163 L. Ed. 2d 1144; 74 U.S.L.W. 3437), Florida death penalty case currently under consideration of the United States Supreme Court regarding the constitutionality of execution by lethal injection and protection under the Eighth Amendment.

FN26 News article from Washingtonpost.com, by Gina Holland, The Associated Press, April 26, 2006 “High Court Justices Clash Over Executions.”

FN27 “Lethal Injections: Some Cases Stayed, Other Executions Proceed,” supra, www.deathpenalty.info.org

FN28 Supreme Court Chief Justice Warren Burger, quote taken from his dissenting opinion in Furman v. Georgia, 408 U.S. 238 (1972)

FN29 “Capital Punishment in the United States—Controversy Over Use of Death Penalty,” http://en.wikipedia.org

FN30 Ernest van den Haag, “The Ultimate Punishment: A Defense,” Harvard Law Review, 1986