Advocates Temporarily Halt Prop. 66

In a decision affecting 749 death row inmates, the California Supreme Court blocked the controversial Proposition 66 and asked the parties to provide legal briefs.

Voters narrowly approved changes to California’s capital punishment system that would have essentially moved cases through the system more quickly. In the lawsuit, former California Attorney General John Van de Kamp said that these changes went overboard and would rush inmates to death row before their cases had been fully evaluated. Lawsuit opponents argued that advocates were simply stalling for time.

The court set no timetable for considering Proposition 66’s merits.

Execution Methods

In November 2016, there were two capital punishment provisions on the California ballot. In the other one, voters defeated Proposition 62 — which would have outlawed capital punishment in the Golden State — by a fairly wide margin. The numbers were relatively consistent with the figures in a recent nationwide survey, in which 61 percent of Americans said they believed capital punishment was morally acceptable; by comparison, 58 percent said same-sex relationships were acceptable and 69 percent were okay with divorce. So, although a slim but sizable majority of people apparently do not believe that capital punishment is “cruel and unusual,” there is much less support for the methods used. In other words, California voters are okay with the idea of putting criminals to death, but they are not okay with the way these executions are carried out.

Enter the ongoing controversy over lethal injection. Nearly all states use this method for most all of their executions, effectively ending a trend that began in the 1970s and 1980s. Back then, death penalty advocates touted lethal injection as more humane than the gas chamber and other widely-used methods. The crux of their argument was that sodium thiopental, or its chemical equivalent, brought on complete unconsciousness, so death row inmates were not awake when executioners administered a paralytic agent and heart-stopping potassium chloride.

When the last few states abandoned the gas chamber or electric chair in favor of lethal injection in the early 2000s, sodium thiopental stockpiles started declining. Some say that the drug companies voluntarily stopped selling Trapanal, pentobarbital, and chemically-similar drugs to states that would use them in executions; others say that death penalty opponents pressured pharmaceutical companies to stop selling sodium thiopental. Whatever the reason, states turned away from this drug and to midazolam, which is basically a powerful surgical sedative that puts inmates in deep sleep but does not trigger unconsciousness.

In 2015, a sharply-divided Supreme Court upheld the use of midazolam in Glossip v. Gross. The five conservative Justices all held that this sedative, though not as effective as sodium thiopental/pentobarbital, did not violate the Eighth Amendment’s rule against cruel and unusual punishment. In an opinion by Justice Samuel Alito, the Court also deferred to the trial court’s ruling, which had allowed executions in Oklahoma to proceed. All four liberal Justices filed vigorous dissents, with several arguing that capital punishment was “cruel and unusual;” in her dissent, Justice Sonia Sotomayor compared the current three-drug cocktail with being burned at the stake.

New Developments

A recent event seems to give credence to the positions espoused by the dissenters in Glossip and the Proposition 66 opponents in California. In December 2016, Alabama officials executed Ronald Bert Smith Jr., who had spent over 20 years on death row for the murder of a convenience store clerk. Mr. Smith was strapped to the gurney for thirteen minutes, during which time he appeared to gasp for breath and writhe in pain. Although officials confirmed that the 45-year-old man was essentially unconscious, many observers opined that the arguments death row inmates had made to the High Court the previous year were not simply theoretical, and that midazolam is not doing what it is supposed to do.

Although the Supreme Court refused to stop Mr. Smith’s execution, it did issue an emergency stay in an earlier case, over concerns about midazolam’s use. In January, state officials executed Christopher Brooks with the standard three-drug cocktail without incident; Mr. Brooks was the first Alabama death row inmate to die since 2013.

The Death Penalty in California

Alabama is the only remaining judicial override state, so a trial judge can sentence a defendant to death even if the jury refused to make such a finding. California’s death penalty statute is almost as broad, because the statute allows juries to consider a wide range of aggravating factors in certain murder cases, including felony murder and the murder of a police officer. These factors include:

• Criminal Circumstances: This is a very broad category, and to convince jurors to assess the death penalty, prosecutors often introduce victim impact testimony about what a good person the victim was and what a terrible person the defendant is.
• Prior Felony Conviction: The prior conviction does not have to be violent to be admissible as an aggravating factor in a capital case.
• Other Activity: The defendant does not have to be convicted of the prior violent act in order for the prosecutor to use it in these circumstances.

The defendant may introduce a number of mitigating factors, such as his or her age at the time and any external pressure the defendant felt.

Capital cases and other serious felonies require an aggressive defense from an experienced criminal defense attorney in San Diego, so call the Law Office of Vikas Bajaj, APC, for an initial consultation. We routinely handle cases in San Diego County and nearby jurisdictions.