State Controller John Chiang announced today that beginning February 1st a number of tax refunds, welfare payments, college aid, aid to for the disabled, and a whole bunch of other payments will be delayed by at least 30 days. Here’s why (from Controller Chiang’s press release):

With no signs of an economic recovery in sight, it is critical that the Governor and the Legislature enact a sound budget solution that provides much-needed cash by February 1. If not, the State will be $346 million in the red at the end of February, and $5.2 billion in the red in April.

In order to preserve cash for education, debt service and other payments that are deemed by the State Constitution, federal law or court rulings as having first claim to available General Fund cash, the Controller announced he will begin delaying, for 30 days, payments to all other programs that are funded out of the State’s depleted General Fund.

Those payments that will be delayed include thousands of payments to businesses for services and products they provide to the State; to assistance for more than a million aged, blind and disabled Californians that goes to pay their rent, utilities, or put food on their tables; to State agencies that use the payments to fund critical public services, ranging from public safety to health and welfare.

If the budget crisis is not resolved by March 1, then the state may issue IOUs — which may not be any better, especially if banks refuse to accept them.

Read Controller Chiang’s entire statement here.

For a detailed list of all delayed payments by February 1st, click here.

Our question is this — if this isn’t resolved by April 15th, why should we be required to file our state taxes by then?

Michael Morales and the Eighth Amendment

Meet Michael Morales.  Morales was convicted of raping and murdering a young woman and sentenced to death in 1983, but did not make it on to the execution calendar until February 21, 2006.  In the months before Morales’ execution, the State of California went on a lethal-injection killing spree:  Donald Beardslee and ‘Tookie’ Williams in 2005, and 76-year-old Clarence Allen in January 2006.  But Morales slowed the smooth-running killing machine by filing a lawsuit against the warden of San Quentin, claiming that the way the state killed people subjected the prisoner to unnecessary and excessive pain and suffering.  Morlaes claimed that this was a violation of his Eighth Amendment rights.

The Eighth Amendment to the US Constitution prohibits cruel and unusual punishment.  What does this mean?  It means the state cannot inflict deliberate and unnecessary pain.  And it also means that the state cannot adopt procedures that create an unnecessary risk that such pain will be inflicted.  Morales was NOT saying that lethal injection itself is cruel and unusual.  Morales claimed that the WAY lethal injection is carried out is cruel and unusual because of the possibility of an excessive amount of pain inflicted.  His plea to the court was essentially: if they are going to kill me, and they are going to use lethal injection, make them carry it out in a more humane way.

In February 2006, the federal court agreed with Morales and told the prison that they cannot execute Morales until they improve the method of execution.   How are they supposed to do that?

The Problems With The Execution Procedure at San Quentin

The federal government and every state that uses the death penalty has a death penalty protocol.  In California, we are talking about San Quentin Operational Procedure No. 0-770. Like all death penalty protocols, San Quentin Operational Procedure No. 0770  gives detailed step-by-step  instructions on how to carry out an execution. The centerpiece of the protocol is the (in)famous 3-drug cocktail:
(1) sodium thiopental, to make the prisoner unconscious;
(2) pancuronium bromide, to paralyze the prisoner and make him stop breathing; and
(3) potassium chloride, to stop the prisoner’s heart.
Drugs #2 and #3 kill the prisoner, but drug #1 knocks him out so he won’t feel the effects of the others.

The problem is that if the first drug is not administered in a great enough quantity or the second and third drugs are injected before the first has taken full effect, then the prisoner will suffer the pain of having his lungs and heart shut down – better known as “suffocating.”   Suffocating hurts.  A lot.  If a person is conscious when drugs #2 and #3 are administered, the level of pain that they might feel is unconstitutionally high.  So unless the state can ensure the prisoner will be unconscious when they administer drugs #2 and #3, the lethal injection procedure is unconstitutional.

So the federal court said that the state could execute Morales in February 2006 as originally planned if they either executed him using drug #1 only (by giving him a massive overdose) or if qualified experts were present to verify that Morales was unconscious before drugs #2 and #3 were administered.  The state assured the court that two anesthesiologists would be present at the execution to make sure Morales is actually unconscious before drugs #2 and #3 were administered.

Doctors Are Not In The Killing Business

Morales was set to be executed on February 21, 2006 at 12:01am.  But by the night of February 20th,with only a few hours left of Michael Morales’ life, it became clear that there was a ‘miscommunication’ with the two anesthesiologists. The docs thought they would just be “observing” the execution.  When they found out that they would have a hand in actually killing Morales, they told the prison officials to forget about it.

You’ve heard of the Hippocratic Oath, right?  That whole thing where doctors have to promise to be ethical and not kill their patients?  If the docs helped the state of California kill Morlaes, it would be… well, hypocritical (sorry…couldn’t resist).  The doctors left San Quentin.  The prison officials decided to put off the execution until 7:30pm the next day while they sought approval from the court to execute Morales by using drug #1 only.

The State Goes Back To Court

The court reviewed the state’s application and basically said: “Look you are bringing this up at the last minute, and we really haven’t had a chance to look into it….but if you can find someone who is licensed to inject medications to directly inject Morales with drug #1, then go ahead and kill him.”

Easier said than done.

Let’s break this down.  When the state of California kills a person via lethal injection, someone does not just go up to the dude, stick them with a giant syringe full of toxic chemicals, shoot him up, and call it a night.  Nope, the process is much more complicated.

After the prisoner is strapped to the gurney in the execution chamber, 2 intravenous lines are put in two of the prisoner’s veins and a slow flow of normal saline begins to flow through one of the lines, the other line is kept as a backup in case of a blockage or malfunction with the first.  The lines extend out of the chamber and goes into a room right next to the chamber where the drugs are actually administered by unidentified prison staff members (the “execution team”).  The court said that with so little known about using the never-before-tried “drug #1 overdose” method of execution, they wanted someone licensed to directly administer the drug.  The state could not get anyone to do it, so the execution was put off.

In September and December of 2006, the state went back to court to try to figure out how to carry out the execution once and for all.  The court reviewed Operational Procedure No. 0-770 and decided that if drug #1 is administered properly, then the 3-drug cocktail does not put the prisoner at an unconstitutional risk of pain and suffering because he would almost certainly be unconscious, if not dead, by the time drugs 2 and 3 were administered.  But this is a big ‘if.’

The Court Demands Five Changes to the Death Penalty Protocol

See, the court could not be sure that the lethal injection protocol would be carried out properly,  so they could not say that the execution itself would be constitutional.  The court got specific and identified 5 problem areas. If the state could address all 5 of these issues, then the execution would not violate the constitution and could proceed.  Those 5 issues were:

1.    The screening process for the execution team members
The court found that the leader of one execution team had previously smuggled illegal drugs into San Quentin.  Since drug #1 is addictive and commonly abused, they thought the screening process should have kept this guy from being involved in handling and administering the drugs.  They also found an execution team member was suffering from Post Traumatic Stress Syndrome at the time that he was chosen for the execution team (even before he started executing people!). The court concluded that the prison needed a more careful screening process for picking people to be on the execution squad, and could not trust the current methodology.

2.    Training, supervision, and oversight of the execution team
The main problem here, the court said, was that the team is not really trained to
deal with any problems that may arise.  You’ve probably heard about what happened during Tookie Williams’ execution… how they couldn’t get the line in?  It took more than 10 minutes for the prison official to insert the second needle into Tookie’s arm, she actually pricked him so many times that Tookie asked: “you guys doing that right?”  After this performance, prison officials took no precautions to prevent such a catastrophe from occurring again.

3.    Record keeping
The court looked at the records kept at executions and was shocked that there is no record kept of the amount of the drugs used in an execution.  The guidelines provide that a specific amount of each drug be injected, but there is no record of exactly how much is injected.  Weird, right?

Even weirder, is the story of the EKG machine.  In the execution chamber, there’s an EKG machine.  Normally, when EKG results print, they print onto graphed paper so technicians can determine the heart rate and make other measurements.   The EKG machine in the execution chamber prints on to blank paper, this meant that there was a printout of the heartbeat, but without the graphs there was no way to figure out what the printout meant.

4.    Improper mixing, preparation, and administration of Drug #1
The court found, and the state admitted, that the execution teams failed to follow simple instructions from the drug #1 manufacturer about how to mix and prepare the solution.  This increased concerns that prisoners may not be fully unconscious prior to the administration of drugs #2 and #3.  You’d think it would be easy to tell if someone is conscious, but drug #1 has a paralyzing effect, and it is not that easy to tell if someone paralyzed is conscious.

5.   Facilities Problem
The work space for the execution team is poorly lit, overcrowded and badly designed.  This all goes back to the advent of lethal injection.  Remember, the death chamber at San Quentin was not made for lethal injection, it was originally a gas chamber.  When they modified the room for lethal injection, all they really did was drill a couple of holes in the wall and put a hook on the ceiling to hang the IV bag.   But the ceiling is so high that when they hang the IV bag from this hook, the execution team can’t actually see if the chemicals are running through the lines properly.

Then there’s the problem of the IV lines running from the prisoner’s body through the execution chamber, through these drilled holes in the wall, and into the next room where the execution team is.  If those lines get tangled, the flow of chemicals is not going to be smooth or could get interrupted entirely.

Finally, there’s the “sealed room” problem.  When a person is executed at San Quentin, that person is sealed in the execution chamber.  Imagine how solid the execution chamber must be if it was made to be filled with lethal gas, but not to leak any of that lethal gas out.  You think if anything goes wrong inside the chamber, the team can quickly deal with the problem?

San Quentin Death Chamber

Why This Stuff Matters

Some of you probably think the prisoner deserves to be in pain, and we shouldn’t be worried about any of this.  You may think these five identified issues are pretty minor, and compared to the crimes the prisoner has committed, it is a small price to pay.  But our personal opinions here on making this guy suffer is not the issue. The Eighth Amendment protects against cruel and unusual punishment, the question is whether the state is providing that protection.  The court reminded the state that they have an enormous responsibility in taking people’s lives and that they need to be a bit more professional about the whole thing – and they must modify the death penalty protocol to make sure the prisoner is unconscious before stopping his heart and lungs.

Since the court’s decision in 2006, the California Department of Corrections revised the death penalty protocol.  But Michael Morales and his defense team were not finished fighting.  They filed a lawsuit in California state court, along with another prisoner, alleging that 0-770 is invalid – and they won.   Since then, there has been a “moratorium” on executions in California.

Why The Executions Will Start Again

Now this gets really technical, but stick with me – we’ve come this far, right?

There is a regulation in California called the Administration Procedures Act (‘APA’).  This act states that in order for an administrative regulation to be adopted, amended, or repealed certain procedural requirements must be met.

Specifically, Morales argued the APA required that the prison notify the public of the proposed administrative regulations, provide the full text to the public, allow the public to comment on the proposed regulations, respond in writing to the public’s comments, and then forward a copy of all materials relied on in writing the regulations to the office of administrative law.  Morales claimed that 0-770 is an administrative regulation and, when 0-770 was created, the prison did not comply with the APA.

There was no dispute that the prison did not comply with the APA, but the California Department of Corrections argued that they did not have to comply because the APA did not apply to them.  The state court told them they were wrong: the APA did apply and therefore 0-770 is invalid.  Needless to say, the Department appealed, and this past November the court of appeal weighed in.  The California Court of Appeal agreed with the state court, and 0-770 remained invalid.

So, there you have it.  The state cannot go back to killing people like they did before because that would violate the Eighth Amendment.  The state cannot execute someone pursuant to its new regulations because those regulations are not valid.  Is this the end of capital punishment in California?

Not quite, the state can use the same regulations, but this time comply with the APA, and we will likely be killing people again in no time.

LINKS:

Order From Court Outlining Two Acceptable Methods For Lethal Injection

Revised  San Quention Operational Procedure 0-770 (Death Penalty Protocol)

Morales v. California Department of Correction (case invalidating revised 0-770 as violation of APA