Baze v. Rees
Q & A
17. Haven’t some jurisdictions revised their protocols to address these criticisms?
Overwhelmingly, state and federal authorities have resisted change. Those that have revised their protocols have made only cosmetic or trivial changes that do not reduce the foreseeable risk that inmates will experience an excruciatingly painful death. These jurisdictions have refused to consider fundamental changes such as using drugs that do not cause pain, or monitoring anesthetic depth. In addition, the so-called revisions are developed in secret and therefore do not reflect a broad base of scientific input. The following examples of the inadequacies of these changes are discussed more fully in the Amicus Brief for Michael Morales, Michael Taylor, et al., at 23-27.
California
The California Department of Corrections and Rehabilitation responded to a federal judge’s order that it review and revise its lethal injection protocols by insisting that the review process be conducted in secret. See Morales v. Tilton, 465 F.Supp.2d at 982-83; Henry Weinstein, Secret Talks on Execution Challenged, L.A. Times, Feb. 2, 2007. Although Judge Fogel refused to permit an entirely secret review (Morales v. Tilton, No. C-06-219 JF (N.D. Cal. Mar. 6, 2007)). California’s new protocol still leaves most critical decisions in lethal injection executions – “recruitment, selection, retention, and training of all staff” and “overall implementation of the procedure” – in the sole discretion of the Warden at San Quentin, where all California executions are carried out. See State of California, San Quentin Operational Procedure No. 0-770, Execution by Lethal Injection IV.A, May 15, 2007. Although Judge Fogel suggested that the state remove the two dangerous drugs from its protocol, or obtain medically trained individuals to administer the existing drugs, the state opted to do neither.
Florida
Under Florida’s new protocol, the execution team warden retains “final and ultimate decision making authority in every aspect of the lethal injection process,” including the authority to permit deviations from the written protocol. The new Florida protocol retains the use of the three-drug formula, and while it specifies that all execution team members should receive “sufficient training”, authority is delegated to the warden to ensure that training occurs. There is no external mechanism to enforce the training requirement or mandate that trained medical personnel evaluate the training curriculum and simulations to verify that team members are sufficiently trained. See Florida Department of Corrections, Execution by Lethal Injection Procedures 1-2 (July 31, 2007).
Tennessee
In September, a federal judge ruled that the state’s new lethal injection protocols are unconstitutional. Harbison v. Little WL 2821230 (M.D. Tenn. Sept. 19, 2007). The new protocols had been adopted after a state committee, appointed by the Governor, conducted a study and made recommendations. The judge found that Tennessee’s Commissioner of Corrections, George Little, had not attended the committee meetings nor conferred with any of the experts who had provided information to the committee. Id. at 27. In sum, “despite the hard work of the Protocol Committee, none of the recommendations that were the fruit of its hard work were accepted by Corrections Commissioner Little nor integrated into the new protocol. Id. at *27.
The Tennessee Protocol Committee recommended the state switch to a one-drug protocol. The hearings in Harbison revealed that Commissioner Little, after initially denying that the committee made this recommendation to him, and vacillating about his knowledge of the recommendation, ultimately admitted that the committee recommended the one-drug protocol. TR 43. Harbison v. Little, 2007 WL 2821230 at * 7. In discussing the recommendation with the Governor’s Legal Counsel, Commissioner Little said that he did not want “‘Tennessee to be at the forefront of making the change from the three-drug protocol to the one drug protocol,’ that he thought adoption of the one-drug protocol could lead to ‘political ramifications’ and that, if the three-drug protocol were held unconstitutional, Tennessee ‘could always fall back on the one-drug protocol.’” TR 25-26. Id. at *6-7.
The judge in Harbison also concluded that, under the new protocol, “[t]he three executioners, all Corrections Department employees selected by Warden Bell (TR 100), are untrained in the duties they are expected to perform and, at hearing, were unable to identify potential pitfalls that the expert witnesses identified to be significant risks.” Harbison v. Little, 2007 WL 2821230 at *14. He held opinions of the expert witnesses, as well as admissions by execution team members during the hearings, established that there are “known risks-accidents which, given enough of an opportunity, will occur-for which the executioners are completely unprepared. In many cases, the executioners are not even aware that the risks exist. This is not a mere ‘risk of negligence’ but a guarantee of accident, written directly into the protocol itself. Accordingly, the court finds that the failure to utilize adequately trained executioners increases the plaintiff's risk of unnecessary pain.” Id. at * 18.
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