A Speedier Death: The Battle Over California's Death Penalty

At the stroke of 12:01 a.m. on Tuesday, February 20, 2006, Michael Morales was scheduled to die.

After 23 years on California's death row, following his conviction and subsequent death sentence for the 1981 rape and murder of 17-year-old Terri Winchell, Morales' stay in San Quentin State Prison would end like this: Wearing brand new prison denims and an incontinence pad, he would walk into a lime-green room with a person-shaped gurney in it. He would climb onto the gurney and lie down. After his arms and legs were secured with straps, a needle would be stuck into a vein in his arm, where he would receive an injection that would shut down his lungs and stop his heart in the name of the People of the State of California.

The U.S. Supreme Court had turned down his appeals, and Gov. Arnold Schwarzenegger had turned his back on his pleas for clemency. Morales phoned his family, ate his last meal — two pork chops, a B.L.T., a chocolate milkshake, and strawberry shortcake for dessert — and waited for the time to die.But two hours before midnight, two court-appointed anesthesiologists, there to oversee the procedure and ensure Morales did not wake up or suffer extreme pain during the fatal dosing — two things that a study in the medical journal The Lancet concluded are likely to happen when using the state's three-drug lethal injection “cocktail” — suddenly refused to participate.

California had executed 13 men since 1978, when the state reinstituted capital punishment (although it took until 1992 for the first execution to take place, after the condemned's lengthy legal remedies had been exhausted). Morales would be the 14th — and there were more than 750 on death row waiting behind him.

“Everybody's upset,” Winchell's brother, at San Quentin to witness the execution, told the Chronicle upon hearing about the delay. “I guess they're just going to have to pump him full of poison one way or the other.”

The state tried to counter the anesthesiologists' collective conscience with a proposal for a single drug injection — a massive dose of sodium pentothal, something that had never been tried before — but a subsequent court order said that, instead of prison officials, the drug would have to be administered by a licensed medical professional, in the same room as Morales, as opposed to feeding a tube running from an adjacent room, and wearing “appropriate clothing to protect their anonymity.”

California rejected that proposal, and meanwhile, the clock went into the next day, negating the death warrant.

Morales went back to his cell on death row, where he remains today.

In 2010, the prison unveiled a new lethal injection chamber, with five times the space and two more viewing rooms — now smartly separating victim's family, inmate's family, and the press — than the one where Morales was supposed to make his exit. The state-of-the-art facility cost taxpayers $850,000, but so far, it's never been used.

Whether it stays that way or becomes suddenly very busy in five years is up to voters.

The messenger is conspicuous — not because of his message, but because of where he delivers it.

He's a clean-cut white dude of indiscernible middle age wearing a gray hoodie, and he's wielding a clipboard like a landing beacon, guiding those outside the sliding glass doors of Berkeley Bowl toward his petition. He advertises it as reform of the death penalty, a fix for a broken system, a way to save taxpayers millions of dollars.

It's a potent argument, as shown by the number of scrawled signatures he's collected. If he and hundreds like him at grocery stores, Starbucks, and bus stops around the state get enough of them, the initiative will make it on the upcoming November ballot, its fate left for California voters to decide.

What's odd, however, is that he's collecting signatures here, in this bastion of liberalism within a generalized progressive region. If he were down in Riverside County, where 44 death penalty convictions have been handed down over the past decade, okay. But he's in Alameda County, where only seven people have been sentenced to die over that same period. (Across the bay in San Francisco, only two people have been sentenced to death in the last 40 years, the latter back in 1991.)

This initiative — known officially as the Death Penalty Reform and Savings Act of 2016 — will fix the system not by ending the death penalty, but by allowing the state to execute more prisoners more quickly by removing legal safeguards.

While you can trace the origins of California's use of capital punishment to the posses that roamed the West or to the gallows at turn-of-the-century San Quentin, the fight over the death penalty is really a judicial struggle, so the story begins in 1972.

That April, the California Supreme Court ruled that the state's death penalty procedure — at the time, a mixture of electrocution, gas inhalation, and even a few lingering hangings — was unconstitutional. But a few months later, voters erased that verdict, passing Proposition 17 with 67.5 percent of the vote to reverse the decision.

Killing prisoners proved popular with the people.

Since the repeal 44 years ago, 13 people have been executed by the state — the most recent being 76-year-old Clarence Ray Allen, who was given the shot a few months after the most prominent, original gangster Crip-turned-motivational speaker and author, Tookie Williams, was executed in December 2005 — while 68 death row prisoners have died of natural causes. That is, if you are sentenced to death, it has become much more likely you'll die in prison before ever seeing the execution chamber.

The system had become satire. If the wheels of justice turn slowly, the gears of the death penalty rusted solid.

Fast-forward to summer 2008. As the junior senator from Illinois galvanized the country around hope and change, a bipartisan committee in California concluded four years of investigating the state's death penalty process.


The verdict: one giant shitshow.

“California's death-penalty system is dysfunctional,” the intro of the California Commission of the Fair Administration of Justice's report states. The largest issue was the decades passing between the sentencing to death and the actual execution.

“[T]o keep cases moving at this snail's pace, we spend large amounts of taxpayers' money each year,” the members wrote, coalescing their frustration into a number. “By conservative estimates, [we spend] well over one hundred million dollars annually.”

With those nine figures, the tone of the death penalty fight changed. No longer was it centered on Hammurabian concepts of justice, revenge, and an ultimate deterrent to protect honest citizens from rampant lawlessness.

It became a more calculating and logical debate, based on the question of whether the value derived from throwing the switch — or, in California's case, putting the needle in the arm — is worth the exorbitant cost.

That shift got repeal advocates thinking they could finally overturn Prop. 17, so they tried.

In 2012, a coalition including L.A's mayor and D.A., the ACLU, the California Nurses Association, and Hyatt CEO Nicholas Pritzker introduced Proposition 34, which would have commuted the state's death sentences — at the time, 725 — into lifetime prison terms, without the possibility of parole.

Less-publicized portions of this effort included additional restitution for victims' families and earmarking $100 million for use in homicide and rape investigations, showing the role that money had in this new debate. The prop failed, but not by a lot: The gap was 52 percent to 48, a difference of 500,000 votes in a state of 38 million.

The argument — repeal the death penalty, save California money — had legs four years ago.

But this year, the pro-death penalty side is also playing the savings game.

“If we fix the appeals process, that could save tens of millions of dollars,” says Mike Ramos, the San Bernardino County District Attorney and a leading proponent of the Death Penalty Reform and Savings Act. (He has also announced his intent to run for California attorney general in 2018, and if successful in speeding up executions, could become a conservative standard-bearer.)

The “fix” is in carving away the waste in the process, bit by bit.

One reasonable-sounding argument shifts death row prisoners from San Quentin back into “regular state prisons.” They will no longer be housed alone — Scott Peterson, convicted in a sensational trial of murdering his wife and unborn child, would get a cell mate — allowing for fewer correctional officers and, thus, cutting costs.

Another puts prisoners “to work” earning money to pay victim restitution, doing basic manufacturing gigs under surely heavy security, but the initiative doesn't specify beyond saying that prisoners who fail to do so will result “in the loss of special privileges,” things like phone privileges, time to mingle outdoors, or control over the TV remote.

The most straightforward cost-cutting measure is the boldest. It states that “[w]ithin five years … the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases.”

This means that, once the gavel drops after a death penalty conviction, a timer will start ticking. When it dings in five years, that prisoner is out of appeals.

While that might sound sensible, experts say it's probably not constitutional.

“To dictate that to the courts takes away their constitutional authority,” says Elisabeth Semel, founding director of the Berkeley Law Death Penalty Clinic. “It's a violation of the separation of powers.”

Apart from the arcane arguments over which branch of government does what, there's also an issue of simple math. There are currently roughly 300 death penalty appeals, each of them essentially in a holding pattern, waiting for an oral argument before a judge.

Over the last five years, the California Supreme Court has ruled on about 24 death penalty cases a year. So, even if the court put every other type of case on hold, it would take more than 10 years to get the backlog down to zero. This is a non-starter, logistically speaking.

Plus, that length of time — and the fact there isn't a clock ticking down on how long the appeal process of the initiative can last — is a feature, not a bug. Last year, the Ninth Circuit Court of Appeals heard a case, Jones v. Davis, that argued the dramatic stretch of time between ruling and execution violates the Eighth Amendment's “cruel and unusual punishment” clause.

A lower federal court had decided that locking a human in stir for decades, waiting for the legal process to exhaust itself before killing him, was indeed cruel and unusual and put a hold on all California executions.

The Ninth Circuit disagreed — in its ruling, the word “dysfunction” appears five times — and revved the machine back up.

“Delay, in large part,” they wrote, “is a function of the desire of our courts, state and federal, to get it right, to explore exhaustively, or at least sufficiently, any argument that might save someone's life.” In other words, these cases should be lengthy.

But let's close our eyes and picture a world where the court abides by this (impossible) deadline. It's time for the next hurdle, the “five years or more,” on average, that the condemned have to wait for (almost always court-appointed) lawyers to represent them.

As Ramos points out, “Can you imagine sitting on death row, and you don't even have an attorney for five years?” (Spoiler: The 743 people the People of the State of California plan to kill can.)

So out of the goodness of their hearts, the death penalty reformers “solve” this by forcing judges to appoint attorneys immediately upon sentencing.

“This is a magical part of the proposal,” Semel says. “Where are these lawyers going to come from?”

The initiative furnishes a solution for that, too, by expanding the pool of attorneys available to argue death penalty cases, so that legal “[e]xperience requirements shall not be limited to defense experience.”


In other words, give us whoever ya got.

“We have some very competent attorneys out there,” Ramos says. “There are more than enough component attorneys that can handle these cases.”

While it seems there are more California lawyers than palm trees, there are fewer “competent” lawyers — in terms of death penalty law, at least — than there are Kardashians.

“Stripping qualifications runs smack into the requirement that you have the right to not just a lawyer, but a competent lawyer,” Semel says.

Know a real estate or personal injury lawyer? Now picture them arguing a death penalty case and you may begin to see the issue with expanding the pool. (Not to mention the cost from the inevitable appeals that'll come out of those botched defenses will only throw more cases onto the docket, which is not exactly a path to savings.)

Even if an army of qualified lawyers landed on California's beaches, hankering for some sweet death penalty work, it still wouldn't necessarily speed up the process, because another piece of business that needs resolution is how we execute.

Because, right now, the state has no legal way to do it.

The main reason that Michael Morales' execution was kiboshed in 2006 was that two court-appointed anesthesiologists — there to oversee the procedure and ensure Morales did not wake up or suffer extreme pain during the fatal dosing — refused to participate, citing ethical reasons. No other medical professional would step in, for the same reason.

With nobody to oversee an execution as mandated by the courts, no one's been executed in the state since.

California's lethal injection cocktail consisted of sodium thiopental, a quick-acting general anesthetic known as “truth serum” that knocks people out in spy flicks; pancuronium bromide, a muscle relaxant that stops respiratory muscles; and potassium chloride, which stops the heart.

Everything is supposed to happen quickly and relatively painlessly, but witnesses have described executions as ghastly scenes, full of gagging, thrashing, and screams from the dying that their bodies are on fire.

Hence, bids to tweak the cocktail. But every proposed change falls under the jurisdiction of the federal Administrative Procedure Act, which forces the proposal to a public hearing where anyone can comment.

But — here's the catch — if every comment logged during the hearing isn't responded to, the protocol change automatically fails.

“It's a tool to block the use of a single-drug protocol,” Ramos says. “The last time this came up, there were over 7,000 comments, from a majority of people who don't even live in California, a lot from the ACLU. We missed seven responses and that terminated the hearing.”

Part of the initiative will “solve” this by allowing “[n]o licensing board, department, commission, or accreditation agency” to oversee the executions.

The counter to this idea is the fact that between 1982 and 2010, the error rate for lethal injections in America was 7.1 percent. That is, seven of 100 lethal injection executions went wrong. And they do: Raymond Landry's 1988 execution was preceded by a syringe popping out and spraying the cocktail at the witnesses. Medics in 2009 gave up trying to find suitable veins in Romell Broom after two excruciating hours, and he remains on death row today. Maybe changes to these drug protocols should be overseen.

“Unmasking the process allows us to see why injections go wrong,” Semel says. “Which drugs were used, are the personnel carrying out the executions qualified, are the drugs expired? That [kind of] secrecy allows governments to hide their mistakes and missteps.”

But the current proposal's biggest deception may be that, even if it can do what it says — which, thanks to the courts, and thanks to the legal system, it can't — it still won't save the state money.

None of the improvements — the additional lawyers taking on these cases, the bailiffs, and court reporters burning the midnight oil to plow through a decade's worth of appeals -— are free.

“The irony is that it will not save a penny, but cost tens, if not hundreds, of millions of dollars,” Semel says.”The changes cannot be made without the infusion of enormous sums of money.”

“That's a legitimate argument,” Ramos admits. “[The costs] may increase several millions of dollars at the beginning when you hire more attorneys. But you're going to save tens of millions of dollars.”

There's still a dissonance. Combing through the initiative's 16 pages is like looking through the first draft of an undergraduate paper. The wording is vague, unfocused, and feels tossed off. Yet money from a coalition of district attorneys, law enforcement, and victims' families is being spent to gather enough signatures so this rushes onto the ballot.

Why the race to put California back in the death business?

“When I read how muddled it was, how impossible some of its key features are, it's anyone's guess why they're doing it,” says Paula Mitchell, executive director of the Project for the Innocent at Loyola Law School. “Other than to defeat the repeal measure.”

About that repeal measure. It's called the Justice That Works Act of 2016, and if passed, it, too, would end the death penalty in California.

Once again, the repeal argument leaves the heartstrings alone and instead tugs on wallets. It solves the “dysfunctional” death penalty system with two quick fixes: Raise the percentage of prison wages that can be garnished toward victim restitution from 50 to 60 percent, and commute death penalty sentences to life without parole. And it, too, claims to save taxpayers an estimated $150 million a year.

Although Prop. 34, the last attempt to end the death penalty, was defeated in 2012, anti-death penalty advocates feel good about their shot this year. A recent Field Poll shows support for repeal rising from 40 percent, in September of 2014, to 47 percent earlier this year. Meanwhile, those who want to “speed up the execution process” dropped from 52 percent to 48 percent in the same time frame. That shift, along with a presidential election bringing in more voters, was enough to get the repeal coalition Taxpayers for Sentencing Reform to throw its initiative into the ring.


And this points to why Reform and Savings is fighting to get on the ballot alongside the repealers.

“It's a political chess game between two factions,” says Peter Keane, dean emeritus at Golden Gate University Law School. “What [Reform and Savings] is mainly looking for is to get more votes than the anti-death penalty initiative.”

Since both appear headed to the ballot — each snagged the requisite signatures, Justice That Works gathering 8,000 more — it means that if both receive 50 percent “yes” votes, then the fight goes mano a mano. Whichever gets more votes, wins.

The trick to winning that strategy is changing the argument from the death penalty being about emotions to one that's about finances.

If both sides are offering the concept of savings — the bold print of Reform and Savings promises “tens of millions of dollars” while Justice That Works says “$150 million annually” — and not enough people read the fine print, then those persuaded by that will vote “yes” on both proposals.

What the Reform and Savings folks need, then, is for a revenge-seeker voting bloc to turn out and put them slightly over the edge.

November's voting booth may also be the scene of the other potential strategy, wherein voters pull the curtain behind them, plow through the front of the ballot, and blow a fuse at the Proposition section.

If there are two measures that seem to be about the same thing, voters will vote “no” on both, better safe than sorry.

“It would change the dynamic considerably if there were two competing measures on the ballot,” says Quentin Mecke, the former San Francisco politico now serving as spokesperson for Justice That Works.

In this strategy, the role of Reform and Savings is to play defense by dragging both proposals down below 50 percent, keeping everything status quo until the next inevitable fight over the death penalty in 2020.

When I ask Ramos if either of these is the actual reason for trying to get on this year's ballot, he denies it, saying the proposal has been in the works since 2012. (Technically, Reform and Savings was submitted to the Secretary of State one month after Justice That Works, a hastiness that perhaps accounts for the sloppy copy.)

“We won [the battle over Prop. 34 in 2012] because we told the public we're going to fix the death penalty,” Ramos says. But the close call also gave them a script to use during this bout.

“We're showing the counterargument of the finances,” he says. “They can argue one side, and we can argue the other.”

But the actual fight's about more than dollars and cents, and everyone knows it. At the end of our conversation, Ramos swerves into what he feels it's really about.

“All [repeal advocates] can talk about is finances,” he concludes. “I would say, how can you put a price tag on a little baby girl or boy, on kidnap victims brutally murdered. Or a police officer killed in the line of duty. You can't put a dollar figure on that. You cannot.”

Which takes us back to Berkeley Bowl, where the signature-hunter is doing a good job at filling that clipboard.

Snazzy headlines about “reform” sell; who doesn't want things to get better? So does the word “savings,” especially now that Californians have heard for the past eight years about how the death penalty system is hemorrhaging more money than a Powerball winner.

He's getting his signatures, despite the proposal being unable to accomplish either goal it claims to, despite the viewpoints of the signee probably not being ideologically aligned. Because of the linguistic subterfuge, the proposal will make its way onto the November ballot, its worth to be judged by the general California electorate who are almost evenly split on what to do with the death penalty.

According to that Field Poll from earlier this year, 48 percent of Californians want to speed up the death penalty, and 47 percent want to abolish it.

Voters have already decided that the death penalty is broken, but will the fix come by ending it or by pushing the process into hyperspeed?

As the moral question is weighed, the gurney in San Quentin's unused death chamber collects dust. And the line of those waiting to get strapped on — 743 and counting — continues to grow.


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