MICHAEL MORALES et al., Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Appellants.

A120115

COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE

168 Cal. App. 4th 729; 85 Cal. Rptr. 3d 724; 2008 Cal. App. LEXIS 2283


November 21, 2008, Filed

OPINION


[**726] SIMONS, Acting P. J.?The treatment and management of condemned inmates from the time an execution date is set through completion of the execution is subject to a protocol issued on May 15, 2007, by the California Department of Corrections and Rehabilitation (CDCR) and CDCR Secretary James E. Tilton (Tilton) (collectively appellants). 1 The protocol, Operational Procedure No. 0-770, is formally titled ?STATE OF CALIFORNIA SAN QUENTIN OPERATIONAL PROCEDURE NUMBER 0-770: EXECUTION BY LETHAL INJECTION? (hereafter OP 770). Two condemned inmates, respondents [***2] Michael Morales and Mitchell Sims, challenged the validity of OP 770, 2 arguing it had been adopted without compliance with the requirements of the Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.). The trial court agreed, granted respondents' summary judgment motion and enjoined appellants from carrying out the lethal injection of any condemned inmates under OP 770 unless and until that protocol is promulgated in compliance with the APA.

FOOTNOTES

1 The CDCR Secretary is head of the CDCR, with overall responsibility for all of the institutions within the CDCR. (See Pen. Code, § 5054.)

2 In 2006, an earlier version of OP 770 was challenged on Eighth Amendment grounds by Morales in the United States District Court. (Morales v. Tilton (N.D.Cal. 2006) 465 F.Supp.2d 972.) In response to the district court's December 2006 decision, appellants, overseen by the CDCR undersecretary of operations, K.W. Prunty, Jr., adopted the revised version of OP 770 presently at issue.


Appellants raise two principal challenges to the trial court's ruling. They argue OP 770 is not subject to the APA because it is not a rule of ?general application.? Further, they contend OP 770 qualifies for the ?single facility [***3] exception? to the requirements of the APA, set forth in Penal Code section 5058, subdivision (c)(1) (hereafter section 5058(c)(1)). 3 We affirm.

FOOTNOTES

3 All undesignated section references are to the Penal Code.
[*733]

BACKGROUND

San Quentin State Prison (San Quentin) is the only prison authorized to execute California inmates. (§ 3603.) Pursuant to section 3604, unless a condemned inmate affirmatively elects to be executed by lethal gas, executions are performed by lethal injection. OP 770 was adopted by the CDCR to implement section 3604. The protocol states the following purposes and objectives:

[**727] ?A. The purpose of this procedure is to establish appropriate guidelines for the execution of condemned inmates in compliance with the laws of the State of California and the United States.

?B. The objectives of this procedure are:

?1. To establish the care, treatment and management of condemned inmates from the time an execution date is set through the completion of the execution.

?2. To establish criteria for the selection, training, and oversight of the Lethal Injection Team.

?3. To delineate specific duties and responsibilities of personnel in preparation for and completion of the execution by lethal injection [***4] of condemned inmates.

?4. To ensure direct supervision and managerial oversight of the Lethal Injection Process.?

OP 770 states the procedure is subject to the approval of the San Quentin Warden (Warden) and the CDCR Secretary. It provides, ?The Warden is responsible for the recruitment, selection, retention, and training of all staff involved in the Lethal Injection process? and ?for managerial oversight and overall implementation of this procedure.?

OP 770 provides that, upon receipt of the execution order, the Warden and certain other designated officials interview the condemned inmate and serve the warrant of execution. The inmate is informed of ?the choices of execution method,? and is instructed to indicate his choice within 10 days on a prescribed form. Further, he is informed that ?if no choice is made, lethal injection will be the method of execution.? [*734]

As to the recruitment, screening and selection of lethal injection team members, OP 770 provides in part:

?a. With the assistance of the Director, Division of Adult Institutions (DAI), [4] the Warden will coordinate the recruitment and selection of Lethal Injection Team Members. The Lethal Injection Team will consist of a minimum [***5] of 20 members. The total number of Lethal Injection Team Members will be determined by the Warden.

FOOTNOTES

4 The DAI Director serves above the Warden in the chain of command.


?b. In the event the Warden is unable to field a sufficient number of qualified Lethal Injection Team Members, the Warden will contact the Director, DAI, to coordinate the identification of additional potential candidates for team membership. Prospective team members will be selected from departmental locations [5] as determined appropriate by the Director, DAI.

FOOTNOTES

5 In his deposition, Tilton confirmed that ?departmental locations? refers to CDCR prisons and facilities aside from San Quentin.


?c. The hiring authorities from designated locations will select prospective team members from personnel assigned to their respective areas of responsibility consistent with selection criteria [enumerated in OP 770]. The hiring authorities will forward the names and classifications of prospective team members to the Director, DAI.?

OP 770 provides that the DAI Director will ensure that a sufficient number of lethal injection team members will be maintained.

As to news media witnesses at executions, OP 770 provides, ?When an execution is scheduled, [***6] the CDCR, Assistant Secretary, Office of Public and Employee Communications, [6] will notify the media [**728] and establish a 10-day filing period in which media may request to witness the execution.? It further provides, ?The Assistant Secretary, Office of Public and Employee Communications, and the San Quentin Public Information Officer will consult with the Warden to select the members of the news media to witness an execution.? OP 770 also provides: ?The San Quentin Public Information Officer and Assistant Secretary, Office of Public and Employee Communications will be responsible for all CDCR press releases prior to, during and after an execution and for the developing of all information releases.?

FOOTNOTES

6 The CDCR Assistant Secretary, Office of Public and Employee Communications, does not serve under the Warden in the chain of command.


As to the chronology of events prior to an execution, OP 770 provides that approximately 30 days prior to an execution, the CDCR Secretary will notify the Governor's legal affairs secretary in writing of all referrals made to the [*735] Marin County District Attorney's office for sanity review requests under section 3701. Approximately 10 days before an execution, the [***7] Warden will compile and send a final seven-day report regarding any changes to the inmate's mental condition to the DAI Director, whose office will forward it to the Governor's legal affairs secretary.

OP 770 is available for review by condemned inmates at San Quentin and by the general public.

Summary Judgment Motions

In October 2007, the parties filed cross-motions for summary judgment and alternatively for summary adjudication of issues on the question of whether OP 770 is valid despite the lack of compliance with the public notice and comment requirements of the APA. (§ 5058, subd. (a).) The court granted respondents' summary judgment motion and denied appellants' summary judgment motion.

DISCUSSION

Appellants contend the trial court erred in its rulings on the dueling summary judgment motions. ?The rules of review are well established. If no triable issue as to any material fact exists, the [moving party] is entitled to a judgment as a matter of law. [Citations.] In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party. [Citation.] We review the record and the determination of the trial court de novo. [Citations.]? (Shin v. Ahn (2007) 42 Cal.4th 482, 499 [64 Cal. Rptr. 3d 803, 165 P.3d 581].)

I. [***8] The APA

(1) Section 5058, subdivision (a) 7 requires the CDCR Secretary to promulgate rules and regulations for the administration of prisons pursuant to the APA, unless enumerated exceptions apply. The APA was enacted to establish basic minimum procedural requirements for the adoption, amendment, or repeal of administrative regulations promulgated by administrative agencies. (Gov. Code, § 11346; Grier v. Kizer (1990) 219 Cal.App.3d 422, 431 [268 Cal. Rptr. 244], disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577 [59 Cal. Rptr. 2d 186, 927 P.2d [*736] 296] (Tidewater).) A major purpose of the [**729] APA is to provide a procedure for persons or entities affected by a regulation to be heard on the merits in its creation, and to have notice of the law's requirements so they can conform their conduct accordingly. (Tidewater, at pp. 568?569.) Because of this, any doubt as to the applicability of the APA's requirements should be resolved in favor of the APA. (United Systems of Arkansas, Inc. v. Stamison (1998) 63 Cal.App.4th 1001, 1010 [74 Cal. Rptr. 2d 407]; Grier, at p. 438.)

FOOTNOTES

7 Section 5058, subdivision (a), provides in relevant part: ?The [CDCR Secretary] may prescribe and amend rules and regulations for the administration of the prisons. [***9] ? [¶] The rules and regulations shall be promulgated and filed pursuant to [the APA], except as otherwise provided in this section and Sections 5058.1 to 5058.3, inclusive.?


(2) ??If a rule constitutes a ?regulation? within the meaning of the APA (other than an ?emergency regulation,? which may not remain in effect more than 120 days) it may not be adopted, amended, or repealed except in conformity with ?basic minimum procedural requirements? (Gov. Code, § 11346, subd. (a)) that are exacting. The agency must give the public notice of its proposed regulatory action (id., §§ 11346.4, 11346.5); issue a complete text of the proposed regulation with a statement of the reasons for it (id., § 11346.2, subds. (a), (b)); give interested parties an opportunity to comment on the proposed regulation (id., § 11346.8); respond in writing to public comments (id., §§ 11346.8, subd. (a), 11346.9); and forward a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law (id., § 11347.3, subd. (b)), which reviews the regulation for consistency with the law, clarity, and necessity. (Id., §§ 11349.1, 11349.3.) Any regulation or order of repeal that substantially [***10] fails to comply with these requirements may be judicially declared invalid. (Id., § 11350.)? [Citation.] (3) The procedural requirements of the APA ?shall not be superseded or modified by any subsequent legislation except to the extent that the legislation shall do so expressly.? (Gov. Code, § 11346, subd. (a); [citations].)? (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 333 [42 Cal. Rptr. 3d 47, 132 P.3d 249] (Morning Star).)

(4) The APA defines ? ?[r]egulation? ? as ?every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.? (Gov. Code, § 11342.600.) ? ?A regulation subject to the APA ? has two principal identifying characteristics. [Citation.] First, the agency must intend its rule to apply generally, rather than in a specific case. The rule need not, however, apply universally; a rule applies generally so long as it declares how a certain class of cases will be decided. [Citation.] Second, the rule must ?implement, interpret, or make specific the law enforced or administered [***11] by [the agency], or ? govern [the agency's] procedure.? [Citation.]?? (Morning Star, supra, 38 Cal.4th at pp. 333?334, quoting Tidewater, supra, 14 Cal.4th at p. 571.) Appellants do not dispute that [*737] OP 770 implements the statutory directive in section 3604, thus satisfying Tidewater's second identifying characteristic of a ?regulation.?

II. OP 770 Is a Rule of General Application

Appellants rely on three APA cases regarding prison rules (In re Garcia (1998) 67 Cal.App.4th 841 [79 Cal. Rptr. 2d 357] (Garcia); Faunce v. Denton (1985) 167 Cal.App.3d 191 [213 Cal. Rptr. 122] (Faunce); and Stoneham v. Rushen (1982) 137 Cal.App.3d 729 [188 Cal. Rptr. 130] (Stoneham)) to contend OP 770 is not a regulation subject to the APA, because it [**730] does not constitute a rule of general application. Appellants assert that because OP 770 applies only to certain condemned inmates housed at San Quentin and execution team members who are trained at San Quentin and perform their duties there, OP 770 does not affect a broad range of prisoners.

Garcia, Stoneham and Faunce provide little assistance in resolving this matter. In Stoneham, two prison inmates and a nonprofit prisoners' rights organization challenged the adoption of regulations standardizing the system used by [***12] the CDCR to classify inmates for purposes of determining their prison assignment. They asserted the CDCR failed to comply with the APA in adopting the regulations. (Stoneham, supra, 137 Cal.App.3d at p. 732.) The Stoneham court concluded that the CDCR's classification scheme embodied ?a rule of general application significantly affecting the male prison population? in CDCR custody. (Id. at p. 736.) Faunce was a class action by Folsom State Prison inmates against the CDCR director and other prison officials challenging the implementation and enforcement of ?revised chapter 4600 of the [CDCR] Administrative Manual? (Faunce, supra, 167 Cal.App.3d at p. 193), which governed the amount and type of personal property inmates throughout the department's system could possess in their cells. The plaintiffs alleged chapter 4600 was invalid because it was not promulgated pursuant to the APA. (Faunce, at pp. 193?194.) In reliance on Stoneham, Faunce concluded that chapter 4600 was a rule of general application significantly affecting the male prison population in CDCR custody and was therefore subject to APA compliance. (Faunce, at p. 196.)

Stoneham and Faunce determined that certain regulations affecting the entire male [***13] prison population were rules of general application. Neither, however, is authority for appellants' argument that only such broadly applicable directives are subject to the APA.

The Garcia case is far more apt and directly addresses whether a prison regulation of more limited scope than those in Stoneham and Faunce is governed by the APA. If we agreed with Garcia's analysis of this issue, appellant would prevail; but we do not. [*738]

In Garcia, an inmate (Garcia) incarcerated at a California medical facility sought habeas corpus relief after his request for permission to correspond with an inmate at another prison, Richard J. Donovan Correctional Facility (Donovan prison), was denied by that prison, in reliance upon its correspondence policy. That policy limited correspondence between Donovan prison inmates and inmates housed at other institutions. (Garcia, supra, 67 Cal.App.4th at p. 843.) Garcia challenged the Donovan prison policy on the ground it was a regulation of general application not promulgated pursuant to the APA. (Garcia, at pp. 843, 845.) The prison authorities made two separate arguments as to why the APA did not apply: First, they argued the Donovan prison policy was not one of ?general application,? and second, even [***14] if it were, the policy was exempt from compliance with the APA under section 5058(c)(1) because it applied to only one prison facility. In its analysis of ?general application,? the Garcia court noted that the APA does not define this term, but suggested, in dicta, that in the prison context a rule is of general application where it significantly affected a ?broad range of prisoners.? (Garcia, at pp. 844?845.) Garcia then concluded a correspondence policy that applied to a single prison did not have this effect and, so, was not a [**731] rule of general application. (Id. at p. 845.)

The flaw in Garcia's reasoning results from conflating the APA's definition of a subject regulation (one of general application) and the Penal Code's subsequent creation of an exception to the APA for regulations affecting only one prison. If, categorically, a regulation applicable to a single prison lacked general applicability, there would have been no need for the Legislature to enact the single prison exception contained in section 5058(c)(1). That said, the result in Garcia seems correct. The Donovan prison regulation appears to apply to a broad range of prisoners, all those at Donovan prison, but was exempt [***15] from the APA because it only applied to inmates at that facility. 8

FOOTNOTES

8 Garcia's discussion of the single prison exception is considered in part III., below.


Thus, the prison cases principally relied upon by appellants fail to assist us in refining the ambit of the term ?general application? as utilized in the APA. In reviewing cases decided in other states on the applicability of their administrative procedures acts to a lethal injection protocol similar to OP 770, we find one case apt. In Evans v. State (2006) 396 Md. 256 [914 A.2d 25], a state prison inmate sentenced to death sought an injunction against application of the Maryland Department of Correction's protocols governing the use of lethal injection because they were not enacted in accordance with the procedures mandated by the Maryland Administrative Procedure Act (MAPA). (Evans, 914 A.2d at pp. 33?34.) At issue in Evans, as here, was whether the protocols were subject to the MAPA. (Evans, at pp. 78?79.) [*739] Title 10, subtitle 1 of the State of Maryland Government Article section 10-101(g)(1), ?defines a regulation as including, in pertinent part, a statement that has general application.? (Evans, at p. 78.) Evans rejected the argument that the protocols [***16] were not regulations because they did not have a general application. ?The State's argument to the contrary notwithstanding, there can be no legitimate doubt that the portion of the [protocols] that govern the method of and procedure for administering the lethal injection have general application ? . They have general application ? because they comprehensively govern the manner in which every death sentence is implemented.? (Ibid.)

We agree with Evans. The record reflects that as of September 11, 2006, there were 644 condemned inmates in California; no evidence was submitted to the trial court as to the precise number of inmates who have had an execution date scheduled. 9 But those numbers are not determinative. All condemned inmates who have received an execution date are covered by OP 770 until a method of execution is selected. Unless the inmate affirmatively selects the use of lethal gas, all death sentences will be by lethal injection and will be carried out consistently with the remainder of the challenged protocol. Thus, the protocol ??declares how a certain class?? of inmates, those whose execution dates have been set, will be treated. (Morning Star, supra, 38 Cal.4th at pp. 333?334, [***17] quoting Tidewater, supra, 14 Cal.4th at p. [**732] 571.) Therefore, the protocol is subject to the APA, even if it does not apply to all inmates, or even to all inmates sentenced to death.

FOOTNOTES

9 In support of their assertion that OP 770 affects only a small number of prison inmates, appellants request that we take judicial notice of: (1) CDCR's ?Weekly Report of Population,? as of February 11, 2008; (2) CDCR's ??Condemned Inmate Summary List,?? as of February 11, 2008; and (3) a portion of CDCR's Web site regarding San Quentin. We deny the request because these documents were not before the trial court. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [48 Cal. Rptr. 2d 87, 906 P.2d 1242].)


III. OP 770 Is Not Subject to the Single Prison Exception in Section 5058(c)(1)

(5) Section 5058(c)(1) provides that ?Rules issued by the [CDCR Secretary] applying solely to a particular prison or other correctional facility? are ?deemed not to be ?regulations? as defined in [the APA].? In applying this subdivision to the Donovan prison mail policy, Garcia held, ?[t]he local nature of the Donovan policy is evidenced by the wide variety of policies found throughout the state.? (Garcia, supra, 67 Cal.App.4th at p. 845.) The ?correspondence policy applies [***18] solely to correspondence entering or leaving Donovan. It applies to Donovan inmates in all instances. Inmates housed at [*740] other institutions are controlled by that institution's correspondence policies. Inmates housed at other facilities are affected by Donovan rules only if they seek to correspond with Donovan inmates. However, their ability to correspond with any other individual is unaffected.? (Ibid.)

Garcia clarifies that a prison policy?s incidental impact upon individuals who are not employees or inmates of the issuing facility does not bar application of section 5058(c)(1). OP 770 imposes limitations on an inmate's visitors as the execution date approaches. Under Garcia, the incidental impact on these visitors does not, itself, preclude application of the single prison exception. In other respects, however, the protocol substantially governs behavior outside San Quentin. 10 For example, OP 770 regulates the selection of lethal injection team members and specifies that, if the Warden is unable to field a sufficient number of qualified lethal injection team members, the DAI Director will coordinate the identification of additional potential candidates for team [***19] membership from other CDCR prisons and correctional facilities. And the hiring authorities from those other prisons and correctional facilities (usually, but not always, the warden) will select prospective team members consistent with selection criteria enumerated in OP 770. In addition, the protocol assigns tasks to the CDCR Secretary, the CDCR Assistant Secretary, Office of Public and Employee Communications, and the DAI Director, none of whom serves under the Warden or works at San Quentin. Thus, OP 770 directs the performance of numerous functions beyond San Quentin's walls.

FOOTNOTES

10 Appellants presented evidence that if an execution date was set for a condemned female inmate housed at the Central California Women's Facility (CCWF), or a male condemned inmate housed outside San Quentin at the time his execution date was set, CCWF or that other male prison would be required to prepare a written execution procedure specific to that institution. However, no such operational procedure(s) currently exist, and the trial court correctly rejected this evidence as speculative.


IV. Appellants May Not Rely on the Internal Management Exception in Government Code Section 11340.9

Finally, and for the [***20] first time on appeal, appellants contend that if the provisions of OP 770 regarding selection of the lethal injection team are not covered by the single facility exception, we should apply the internal management exception of Government Code section 11340.9, which provides: ?This chapter [the APA] does not apply to ? [¶] ? [¶] (d) A regulation that relates only to the internal [**733] management of the state agency.? 11 Appellants argue that the ?execution-team selection process ? merely [*741] identifies which prison employees are eligible to perform one of many state functions that concern inmates.? This argument is rejected as untimely.

FOOTNOTES

11 Effectively, the argument assumes an agency may defend its failure to comply with the provisions of the APA by ?splitting? the challenged regulation into two or more pieces and justifying each piece with a different exception. Given our resolution of this case we need not and do not address the validity of this assumption.


(6) Appellants acknowledge that, generally, theories not raised in the trial court may not be raised for the first time on appeal. (McDonald's Corp. v. Board of Supervisors (1998) 63 Cal.App.4th 612, 618 [74 Cal. Rptr. 2d 101].) In their reply brief, they [***21] rely on an exception to this rule that a question of law on undisputed facts may be raised for the first time on appeal. (Ibid.) An appellate court is not required to consider any new theory on a pure question of law; rather, whether to do so is a matter within the court's discretion. (Hussey-Head v. World Savings & Loan Assn. (2003) 111 Cal.App.4th 773, 783, fn. 7 [4 Cal. Rptr. 3d 171].)

As discussed in part III., above, the selection of the lethal injection team is governed by OP 770, which provides in pertinent part: ?c. The hiring authorities from designated locations will select prospective team members from personnel assigned to their respective areas of responsibility consistent with selection criteria listed below. The hiring authorities will forward the names and classifications of prospective team members to the Director, DAI. [¶] ? [¶] 3[.] If necessary, specialists may be contracted to perform specific duties during the Lethal Injection Process.? (Hereafter subsection c.3.)

Nothing in subsection c.3. identifies the employee who decides if it is necessary to contract with outside specialists or the employee who actually contracts with them. 12 More to the point, subsection c.3. does not state [***22] whether these decisions are to be made solely by employees of the CDCR. And, because appellants never argued for the internal management exception in the trial court, no discovery was conducted to determine if the contracting authority was a member of the CDCR staff. It would be unfair to respondents to assume that this is so, particularly because appellants never specifically address subsection c.3. in their briefing. 13

FOOTNOTES

12 The ?hiring authorities? referred to in subsection c.3. are the wardens of other prisons whose personnel are selected to supplement the lethal injection teams.

13 We note that appellants' newly raised internal management argument addresses only one of the numerous provisions of OP 770 that assign tasks to individuals who do not work at San Quentin. See part III., above.


V. Conclusion

(7) The procedural requirements designated by the APA for administrative regulations are applicable to OP 770. Appellants? failure to comply with them invalidates the challenged protocol. [*742]

DISPOSITION

The judgment is affirmed.

Needham, J., and Reardon, J., * concurred.

FOOTNOTES

* Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Michael Angelo MORALES, Plaintiff, v. James E. TILTON, Secretary of the California Department of Corrections and Rehabilitation, and Robert L. Ayers Jr., Acting Warden of San Quentin State Prison, Defendants.

Case Number C 06 219 JF RS, Case Number C 06 926 JF RS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

465 F. Supp. 2d 972; 2006 U.S. Dist. LEXIS 92243


December 15, 2006, Decided
December 15, 2006, Filed

[*973] DEATH-PENALTY CASE

MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS

I

Few issues in American society have generated as much impassioned debate as the death penalty. At one end of the spectrum, abolitionists condemn the intentional taking of human life by the State as barbaric and profoundly immoral. At the other, proponents see death, even a painful death, as the only just punishment for crimes that inflict unimaginable suffering on victims and their surviving loved ones. Even among those with less absolute positions, there are vigorous arguments about the social, penological, and economic costs and benefits of capital punishment.

Any legal proceeding arising in this context thus acts as a powerful magnet, an opportunity for people who care about this divisive issue to express their [**3] opinions and vent their frustrations. However, because courts (and particularly trial courts) exist not to resolve broad questions of social policy but to decide specific legal and factual disputes, it is important at the outset for this Court to make very clear what this case is not about.

This case is not about whether the death penalty makes sense morally or as a matter of policy: the former inquiry is a matter not of law but of conscience; the latter is a question not for the judiciary but for the legislature and the voters. Nor is it about whether California's primary method of execution--lethal injection--is constitutional in the abstract: the arguments and evidence presented by the parties address the specific manner in which California has implemented that method and proposes to do so in the future. Nor is it about whether the Constitution requires that executions be painless: binding precedent holds that the Eighth Amendment prohibits only "the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (plurality opinion), and procedures that create an "unnecessary risk" that such pain will be inflicted, Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004). [**4]

[*974] Nor, finally, does it somehow involve a comparison of the pain that Plaintiff, a condemned inmate at California's San Quentin State Prison, might suffer when he is executed with the horrific suffering of the young woman he raped and murdered. The Court has considered seriously the constitutional issues raised by this case not because of some imagined personal sympathy for Plaintiff but because it is its fundamental duty to do so. As a practical matter, there is no way for a court to address Eighth Amendment issues in the capital context other than in a case raised by a death-row inmate; by definition, the acts of which such an inmate stands convicted are viewed by the law and a majority of the community as so abhorrent as to warrant the ultimate penalty. Lest there be any doubt, this Court has the most profound sympathy for the family and loved ones of Plaintiff's victim.

In fact, this case presents a very narrow question: does California's lethal-injection protocol--as actually administered in practice--create an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment? Because this question has arisen in the context of previous [**5] executions, see Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005); Cooper, 379 F.3d 1029, and is likely to recur with frequency in the future, the Court has undertaken a thorough review of every aspect of the protocol, including the composition and training of the execution team, the equipment and apparatus used in executions, the pharmacology and pharmacokinetics of the drugs involved, and the available documentary and anecdotal evidence concerning every execution in California since lethal injection was adopted as the State's preferred means of execution in 1992, see 1992 Cal. Stat. 558. The Court has reviewed a mountain of documents, including hundreds of pages of legal briefs, expert declarations, and deposition testimony, and it has conducted five days of formal hearings, including a day at San Quentin State Prison that involved a detailed examination of the execution chamber and related facilities. The Court concludes that absent effective remedial action by Defendants--the nature of which is discussed in Part IV of this memorandum--this exhaustive review will compel it to answer the question presented in the affirmative. Defendants' implementation [**6] of lethal injection is broken, but it can be fixed.

II

Plaintiff Michael Angelo Morales raped and murdered Terri Winchell. A jury convicted Plaintiff of murder, found special circumstances, and sentenced him to death. See generally Morales v. Woodford, 388 F.3d 1159, 1163-67 (9th Cir. 2004).

In California, "[i]f a person under sentence of death does not choose either lethal gas or lethal injection within 10 days after the warden's service upon the inmate of an execution warrant [then] the penalty of death shall be imposed by lethal injection." Cal. Penal Code § 3604(b) (West 2006). More specifically, "[t]he punishment of death shall be inflicted ? 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." 1 Id. § 3604(a). Defendants 2 have adopted San Quentin Operational [*975] Procedure No. 0-770 ("OP 770") as California's protocol governing executions by lethal injection. This protocol, like those used by the federal government and most other states, provides for the injection of three drugs into a person being executed: sodium [**7] thiopental, a barbiturate sedative, to induce unconsciousness; pancuronium bromide, a neuromuscular blocking agent, to induce paralysis; and potassium chloride, to induce cardiac arrest.

FOOTNOTES

1 The Department of Corrections was reorganized into the Department of Corrections and Rehabilitation on July 1, 2005.

2 At the commencement of the present litigation, the Defendants were Roderick Q. Hickman, who was the Secretary of the California Department of Corrections and Rehabilitation, and Steven W. Ornoski, then the Acting Warden of San Quentin State Prison; they were sued in their official capacities. Both of these positions have experienced multiple changes in personnel since this action was filed; each time, the proper Defendants automatically were substituted pursuant to Federal Rule of Civil Procedure 25(d)(1). The current Defendants are Secretary James E. Tilton and Acting Warden Robert L. Ayers Jr.


Plaintiff filed the present action on January 13, 2006, contending that OP 770 and the manner in which [**8] Defendants implement it would subject him to an unnecessary risk of excessive pain, thus violating the Eighth Amendment's command that "cruel and unusual punishments [not be] inflicted." U.S. Const. amend. VIII. Five days later, the Superior Court of California for the County of Ventura issued a death warrant, setting Plaintiff's execution for February 21, 2006. This Court then ordered briefing and limited discovery and held two hearings on Plaintiff s application for a preliminary injunction to stay his execution so that the Court could conduct a full evidentiary hearing to consider his claims.

On February 14, 2006, the Court issued an order conditionally denying Plaintiff's request for a stay of execution. Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). The Court reviewed in detail evidence from execution logs, which indicated that "inmates' breathing may not have ceased as expected in at least six out of thirteen executions by lethal injection in California." 3 Id. at 1045. This and other evidence raised concerns that inmates may have been conscious when they were injected with pancuronium bromide and potassium chloride, drugs that [**9] the parties agreed would cause an unconstitutional level of pain if injected into a conscious person. Given this evidence, the Court fashioned a remedy that was intended to permit Defendants to proceed with Plaintiffs execution as scheduled by executing him with only barbiturates or by retaining the services of a qualified expert to ensure that Plaintiff would be unconscious when exposed to the painful drugs. Id. at 1047. In so holding, the Court stated,

Whether or not Defendants implement the remedy and thus proceed to execute Plaintiff as scheduled, the Court respectfully suggests that Defendants conduct a thorough review of the lethal- injection protocol, including, inter alia, the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms. Given the number of condemned inmates on California's Death Row, the issues presented by this case are likely to recur with considerable frequency. Because California's next execution is unlikely to occur until the latter part of this year, the State [**10] presently is in a particularly good position to address these issues and put them to rest. It is hoped that the remedy ordered by this Federal Court in this case will be a one-time event; under the doctrines of comity and separation of powers, the particulars of California's lethal-injection protocol are and should remain the province of the State's executive branch. A [*976] proactive approach by Defendants would go a long way toward maintaining judicial and public confidence in the integrity and effectiveness of the protocol.

Id. at 1046-47.

FOOTNOTES

3 In fact, there have been only eleven executions by lethal injection in California; the first two executions following the reinstatement, of the death penalty were by lethal gas.


The day after the Court issued its order, Defendants responded that they had retained the services of two anesthesiologists who would attend Plaintiff's execution pursuant to the terms of the order. Based upon Defendants' written submissions, and over Plaintiff's strenuous [**11] objections, the Court stated that it was satisfied that the anesthesiologists would "take all medically appropriate steps to ensure that Plaintiff is and remains unconscious" when injected with pancuronium bromide and potassium chloride. (Final Order Re Defendants' Compliance with Conditions, Doc. No. 67 at 4 n.3.; id. at 5 (finding that "the anesthesiologists designated by Defendants are qualified professionals who will use their professional judgment not merely to observe the execution but to ensure that Plaintiff is and remains unconscious").)

On February 19, 2006, the United States Court of Appeals for the Ninth Circuit affirmed. 438 F.3d 926 (9th Cir. 2006). The Ninth Circuit construed this Court's order as

clearly contemplating that [the anesthesiologists] have the authority to take "all medically appropriate steps"--either alone or in conjunction with the injection team--to immediately place or return Morales into an unconscious state or to otherwise alleviate the painful effects of either or both the pancuronium bromide or potassium chloride.

Id. at 931.

However, for reasons that remain somewhat unclear, there was [**12] a "disconnect between the expectations articulated in the orders of this Court and the Court of Appeals and the expectations of the anesthesiologists" regarding how they would participate in Plaintiffs execution. (Order on Defendants' Motion to Proceed with Execution, Doc. No. 78 at 3.) Defendants apparently had told the anesthesiologists that the anesthesiologists merely would have to observe the execution, while Defendants' counsel represented to the Court that the anesthesiologists would ensure that Plaintiff would remain unconscious after he was injected with sodium thiopental. This disconnect became apparent on the evening of February 20, 2006, approximately three or four hours before Plaintiffs scheduled execution (which Defendants had set for 12:01 a.m. on February 21), when Defendants provided copies of the Ninth Circuit's opinion to the anesthesiologists. Almost immediately, the anesthesiologists stated that they could not proceed for reasons of medical ethics. Several hours of tense discussions (including what Warden Ornoski described as "training" of the anesthesiologists) and telephonic hearings followed, during which Defendants postponed the execution. At approximately [**13] 2:45 a.m. on February 21, Defendants stated that they would seek approval from the Court to execute Plaintiff using only sodium thiopental (and without the participation of the anesthesiologists); the execution was rescheduled for 7:30 p.m.

The parties submitted briefing on Defendants' request, and the Court heard approximately one hour of telephonic argument during the morning of February 21. Because Defendants had indicated their desire to proceed using only sodium thiopental only hours earlier, the record contained virtually no evidence as to the details of how such an execution would be carried out, and Plaintiff had no meaningful opportunity for appellate review. 4 Accordingly, [*977] shortly before 3:00 p.m., the Court issued an order in which it held that, in light of the unique circumstances then presented,

due process requires that ? Defendants' obligations be set forth in a way that leaves no room for reasonable doubt. Accordingly, while Defendants may proceed with the execution this evening using only sodium thiopental, they may do so only if the sodium thiopental is injected in the execution chamber directly into the intravenous cannula by a person or persons licensed [**14] by the State of California to inject medications intravenously.

(Id.) Defendants were unwilling or unable to execute Plaintiff in accordance with these requirements, and a stay of execution to permit an evidentiary hearing issued automatically pursuant to the Court's order of February 14. 415 F. Supp. 2d at 1048.

FOOTNOTES

4 Obviously, this situation would not have arisen had Defendants elected this option initially pursuant to the Court's order of February 14.


The Court then set an expedited schedule for an evidentiary hearing to be held in May 2006. Thereafter, at the joint request of the parties, the evidentiary hearing was deferred until September 2006 to enable the parties to complete discovery.

On February 28, 2006, the Governor's Office hosted a meeting lasting approximately an hour and a half at which potential changes to OP 770 were discussed. Although more significant modifications were proposed by some of the participants, the Governor's Legal Affairs Secretary concluded that the [**15] only change that would be undertaken at that time was what was described as a "tweak" of the chemical aspects of the protocol. It was decided that the dosages of the three drugs would be adjusted and that a continuous infusion of sodium thiopental during the administration of pancuronium bromide and potassium chloride would be added. There is no indication from the record that the participants in the meeting addressed or considered issues related to the selection and training of the execution team, the administration of the drugs, the monitoring of executions, or the quality of execution logs and other pertinent records. Defendants issued the revised version of OP 770 on March 6, 2006; this version remains current and is the version that Defendants intend to follow in executing Plaintiff.

The Pacific News Service ("PNS") thereafter filed a related lawsuit, Pacific News Service v. Tilton, No. C 06 1793 JF RS (N.D. Cal., filed Mar. 8, 2006), challenging Defendants' use of pancuronium bromide during executions. PNS moved to consolidate its action with this one. The Court noted that "despite the fact that not consolidating the actions may leave an unresolved First Amendment challenge [**16] to California's lethal-injection protocol pending even after the conclusion of the proceedings in Morales, Defendants urge the Court to take a deliberate approach to managing these cases, with PNS being addressed after Morales." The Court declined to consolidate the cases, stating, "While the Court is committed to resolving all aspects of the present litigation expeditiously, it will defer to the State's expressed concerns." (Order Denying Motion to Consolidate without Prejudice, Doc. No. 110 at 2.) In reaching this conclusion, the Court observed,

At the hearing, counsel for Morales expressed the concern that an appeal of the Court's judgment in Morales might be pending while the PNS action was still unresolved. Because of the closely related nature of these actions, as well as the Court's inherent authority to determine the timing of its decisions, the Court considers this scenario unlikely.

(Id. at 3 n.1.)

On March 30, 2006, the Court convened at San Quentin State Prison for what the parties agreed would be a preliminary session of the evidentiary hearing. At San [*978] Quentin, the Court examined the equipment and facilities used during executions, [**17] and it heard partial testimony from the then-leader of Defendants' execution team.

In preparation for the remainder of the evidentiary hearing, the parties filed a joint pre- hearing conference statement containing detailed factual stipulations and also submitted voluminous testimony, including the testimony of experts and present and former execution team members, by means of deposition excerpts. The evidentiary hearing recommenced on September 26 and concluded on September 29, 2006. Following the evidentiary hearing, the parties submitted closing briefs.

III

From the evidence in the record and the parties' extensive briefing, the Court has learned a great deal about executions by lethal injection in general and their implementation in California in particular. The opportunity to make first-hand observations at San Quentin was quite useful, and the oral testimony and written declarations of well-qualified experts on both sides have been very helpful. Yet in many respects, the Court finds itself in virtually the same position today that it was in when it considered Plaintiff's motion for a preliminary injunction in February 2006.

As they did in February, the parties agree that [**18] it would be unconstitutional to inject a conscious person with pancuronium bromide and potassium chloride in the amounts contemplated by OP 770. Defendants' principal medical expert, Dr. Robert C. Singler, 5 testified that it would be "terrifying" to be awake and injected with the contemplated dosage of pancuronium bromide and that it would be "unconscionable" to inject a conscious person with the contemplated amount of potassium chloride. The parties also agree, as they did in February, that assuming effective anesthesia, the use in executions of pancuronium bromide or potassium chloride as such does not violate the Eighth Amendment. As it has from its inception, the resolution of this case thus turns on a single factual question: whether OP 770, as implemented, provides constitutionally adequate assurance that condemned inmates will be unconscious when they are injected with pancuronium bromide and potassium chloride.

FOOTNOTES

5 Dr. Singler also was one of the anesthesiologists retained by Defendants to participate in Plaintiffs scheduled execution, and he attended the meeting at the Governor's Office on February 28, 2006.


[**19] On the surface, this would appear to be a relatively straightforward inquiry. As Defendants have pointed out repeatedly and as this Court itself has found in three separate capital cases, including this one, the amount of sodium thiopental to be given to the condemned person pursuant to OP 770 is sufficient to cause virtually all persons to become unconscious or even to cease breathing within one minute. Morales, 415 F. Supp. 2d at 1043-44; Beardslee v. Woodford, No. C 04 5381 JF, 2005 U.S. Dist. LEXIS 144, 2005 WL 40073, at *2 (N.D. Cal. Jan. 7, 2005); Cooper v. Rimmer, No. C 04 436 JF, 2004 U.S. Dist. LEXIS 1624, 2004 WL 231325, at *3 (N.D. Cal. Feb. 6, 2004). Accordingly, assuming that the sodium thiopental is delivered properly, there should be virtually no risk that an inmate will suffer an unconstitutional level of pain. 6

FOOTNOTES

6 Although Plaintiff's expert witnesses raised questions at the evidentiary hearing with respect to the effectiveness of the one-and-one-half-gram bolus dose of sodium thiopental in the current version of the protocol (compared to the five-gram dose in all prior versions), the Court did not find that testimony persuasive. Having reviewed all of the expert testimony, the Court is satisfied that even one and one-half grams of sodium thiopental, if properly administered, are sufficient to eliminate any unconstitutional risk that an inmate will be conscious when the pancuronium bromide and potassium chloride are injected.


[**20] [*979] However, the record in this case, particularly as it has been developed through discovery and the evidentiary hearing, is replete with evidence that in actual practice OP 770 does not function as intended. The evidence shows that the protocol and Defendants' implementation of it suffer from a number of critical deficiencies, including:

1. Inconsistent and unreliable screening of execution team members: For example, one former execution team leader, who was responsible for the custody of sodium thiopental (which in smaller doses is a pleasurable and addictive controlled substance), was disciplined for smuggling illegal drugs into San Quentin; another prison guard led the execution team despite the fact that he was diagnosed with and disabled by post-traumatic stress disorder as a result of his experiences in the prison system and he found working on the execution team to be the most stressful responsibility a prison employee ever could have.

2. A lack of meaningful training, supervision, and oversight of the execution team: Although members of the execution team testified that they perform numerous "walk-throughs" of some aspects of the execution procedure before each scheduled [**21] execution, 7 the team members almost uniformly have no knowledge of the nature or properties of the drugs that are used or the risks or potential problems associated with the procedure. One member of the execution team, a registered nurse who was responsible for mixing and preparing the sodium thiopental at many executions, testified that "[w]e don't have training, really." While the team members who set the intravenous catheters are licensed to do so, they are not adequately prepared to deal with any complications that may arise, and in fact the team failed to set an intravenous line during the execution of Stanley "Tookie" Williams on December 13, 2005. Although Defendants' counsel assured the Court at the evidentiary hearing that "Williams was a lesson well learned, one that will never occur again," the record shows that Defendants did not take steps sufficient to ensure that a similar or worse problem would not occur during the execution of Clarence Ray Allen on January 17, 2006, or Plaintiff's scheduled execution the following month. 8

FOOTNOTES

7 The execution team neither has received any training in nor has it practiced mixing sodium thiopental since at least as far back as 1998. [**22]

8 Indeed, the execution team members' reaction to the problem at the Williams execution was described by one member as nothing more than "shit does happen, so."


3. Inconsistent and unreliable record-keeping: For example, there are no contemporaneous records showing that all of the sodium thiopental in the syringes used for injections actually was injected, and, in fact, testimony revealed that in at least several executions it was not. A number of the execution logs are incomplete or contain illegible or overwritten entries with respect to critical data such as the inmate's heart rate and the time at which observations were made. Inexplicably, Defendants use blank paper for their electrocardiogram (EKG) tracings instead of the graph paper that typically is used, and provide neither standardization markings nor paper-speed documentation, thereby precluding accurate interpretation of the tracings, even as to heart rate. 9

FOOTNOTES

9 There is also an extremely troubling absence of reliable documentation as to the disposition of sodium thiopental taken from the prison pharmacy by execution team members purportedly for training purposes; team members testified that the actual drugs are not used in training, yet it appears that substantial quantities of sodium thiopental--again, an addictive controlled substance--were not returned to the pharmacy. These circumstances may warrant investigation by an appropriate law-enforcement agency.


[**23] [*980] 4. Improper mixing preparation, and administration of sodium thiopental by the execution team: Among other things, team members' admitted failure to follow the simple directions provided by the manufacturer of sodium thiopental further complicates the inquiry as to whether inmates being executed have been sufficiently anesthetized.

5. Inadequate lighting, overcrowded conditions, and poorly designed facilities in which the execution team must work: The execution chamber was not designed for lethal-injection executions; San Quentin officials simply made slight modifications to the existing gas chamber, such as drilling holes in the chamber wall for intravenous lines and installing a metal hook at the top of the chamber from which the bags containing the lethal drugs are suspended. The bags are too high to permit the execution team to verify whether the equipment is working properly. The lighting is too dim, and execution team members are too far away, to permit effective observation of any unusual or unexpected movements by the condemned inmate, much less to determine whether the inmate is conscious; this is exacerbated by the fact that the chamber door is sealed shut during [**24] executions as if lethal gas were being disseminated, rendering it virtually impossible to hear any sound from the chamber. For some executions, the small anteroom from which the execution team injects the lethal drugs has been so crowded with prison officials and other dignitaries that even simple movement has been difficult.

Defendants observe correctly that Plaintiffs burden of proof at the present stage of the instant proceeding is greater than it was at the preliminary-injunction stage and that there still is no definitive evidence that any inmate has been conscious during his execution. Nonetheless, the evidence is more than adequate to establish a constitutional violation. Given that the State is taking a human life, the pervasive lack of professionalism in the implementation of OP 770 at the very least is deeply disturbing. Coupled with the fact that the use of pancuronium bromide masks any outward signs of consciousness, the systemic flaws in the implementation of the protocol make it impossible to determine with any degree of certainty whether one or more inmates may have been conscious during previous executions or whether there is any reasonable assurance going forward [**25] that a given inmate will be adequately anesthetized. The responsibility for this uncertainty falls squarely upon Defendants, and the circumstances clearly implicate the Eighth Amendment.

As this Court noted in its order of February 14, 2006, anomalies in six execution logs raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected. 415 F. Supp. 2d at 1044-46. These substantial questions remain unanswered despite the depth and breadth of the evidentiary record and the parties' briefing. If anything, the questions have become even more substantial. One of the executions not discussed by the Court in its order of February 14 was that of Robert Lee Massie, who was executed on March 27, 2001. Massie's execution was explored in detail at the evidentiary hearing. Testifying on behalf of Defendants, Dr. Singler opined that based upon the heart rates reflected in the execution log, Massie well may have been awake when he was injected with potassium chloride. Significantly, Dr. Singler testified that he was unable to give a definitive opinion principally because of the poor quality of the log itself, [**26] and in particular an unclear entry in the log as to Massie's heart rate.

Dr. Singler's testimony regarding Massie's execution is merely the most dramatic [*981] evidence concerning the risks posed by Defendants' acts and omissions. 10 Dr. Singler also testified to a number of additional concerns, most notably the fact that overcrowding, obstructed sight lines, and poor lighting in the execution chamber and adjoining anteroom make accurate observations of the inmate during an execution extremely problematic. Whatever the merits of the protocol in the abstract, there can be no real doubt that Defendants' implementation of OP 770 has major flaws, many of which are apparent from the undisputed facts to which Defendants stipulated in the amended joint pre-hearing conference statement.

FOOTNOTES

10 Cf., e.g., California: Official Admits Execution Was Bungled, N.Y. Times, Sept. 27, 2006, at A21 ("A state official admitted that prison guards had bungled the execution of the gang leader Stanley Tookie Williams last December ? at a federal court hearing in San Jose on lethal injection."); Maura Dolan & Henry Weinstein, The Chaos Behind California Executions: Trial Testimony Paints Lethal Injection Methods as Haphazard, with Little Medical Oversight, L.A. Times, Oct. 2, 2006, at A1. Even Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation and one of the strongest advocates of the death penalty in California, has recognized that California "is legitimately criticized for not doing enough homework on the protocol." Quoted in Henry Weinstein, State Will Help Shape Fate of Lethal Injection: The Morales Case Gives California a Key Role in a National Debate Over the Method's Humaneness, L.A. Times, Feb. 23, 2006, at A1.


[**27] The Framers of our Constitution were not far removed from a society in which condemned prisoners were put to death by being beheaded, drawn, and quartered. The Eighth Amendment was adopted in part as a response to such brutality, and it since has been construed by our Supreme Court to require that punishment for crimes comport with "the evolving standards of decency that mark the progress of a maturing society." Roper v. Simmons, 543 U.S. 551, 561, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (quoting Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion)). While opponents of the death penalty believe that any means of execution necessarily violates such standards, the Supreme Court repeatedly has held otherwise, see, e.g., Gregg, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859, in large part because the Constitution itself makes explicit reference to capital punishment, U.S. Const. amends. V & XIV § 1. The use of lethal injection in executions represents an evolution from earlier methods such as hanging, electrocution, and lethal gas that now are viewed by most jurisdictions as unduly harsh. Needless to say, when properly administered, lethal [**28] injection results in a death that is far kinder than that suffered by the victims of capital crimes.

At the present time, however, Defendants' implementation of California's lethal-injection protocol lacks both reliability and transparency. In light of the substantial questions raised by the records of previous executions, Defendants' actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution. See Beardslee, 395 F.3d at 1070-71; Cooper, 379 F.3d at 1033; Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 U.S. Dist. LEXIS 42949, 2006 WL 1779035 (W.D. Mo. June 26, 2006) (holding that Missouri's lethal-injection protocol violates Eighth Amendment).

IV

As this Court previously has noted, "under the doctrines of comity and separation of powers, the particulars of California's lethal-injection protocol are and should remain the province of the State's executive branch." 415 F. Supp. 2d at 1046. Moreover, despite its critical assessment of Defendants' performance to date, this Court [*982] has no intention of interfering with or delaying California's implementation of a [**29] constitutional execution protocol. California's voters and legislature repeatedly have expressed their support for capital punishment. This case thus presents an important opportunity for executive leadership.

The Court is prepared to issue formal findings of fact and conclusions of law with respect to the deficiencies in the administration of California's current lethal-injection protocol that have been brought to light in this case. However, it will require additional time to do so, in part because Defendants still have not fulfilled their discovery obligations. 11 In addition, while the Court has deferred consideration of the issues raised in the PNS matter until after it issues a formal decision in this case, it still must resolve PNS in order to facilitate speedy and complete. appellate review of all of the current challenges to OP 770. (See Doc. No. 110 at 2-3.) Finally, while it is a virtual certainty that any judgment in this case will be appealed by one party or the other, it seems fair to suggest that a judgment adverse to Defendants grounded in the extensive factual record present here is far more likely to delay the resumption of executions in California than [**30] is one favorable to Defendants. Because the Court is prepared to find that the sequence of three drugs described in OP 770 when properly administered will provide for a constitutionally adequate level of anesthesia, and given that the deficiencies in the implementation of the protocol appear to be correctable, 12 a thorough, effective response to the issues raised in this memorandum likely will enable the Court to enter such a favorable judgment. 13

FOOTNOTES

11 Relatedly, the Court has deferred ruling on the objections of the Governor's Office to certain discovery orders issued by the assigned magistrate judge. See Morales v. Tilton, No. C 06 219 JF RS, 2006 U.S. Dist. LEXIS 73136, 2006 WL 2724152, at *3 (N.D. Cal. Sept. 22, 2006).

12 While there have been numerous legal challenges to lethal-injection protocols across the country, it is by no means clear that every jurisdiction has problems similar in either nature or extent to California's. For example, Virginia has executed sixty-six inmates pursuant to its lethal-injection protocol, which appears to provide for training, physical facilities, and oversight far superior to that provided by California's. See Walker v. Johnson, 448 F. Supp. 2d 719 (E.D. Va. 2006). [**31]

13 Following the conclusion of the evidentiary hearing, the Court propounded a series of written questions that provided the parties with an opportunity to discuss potential remedies for the deficiencies in the administration of OP 770. (Request for Briefing, Doc. No. 256.) For different reasons, the parties largely declined to do so. Plaintiff argued that since Defendants are obligated by statute to design and implement an execution protocol, he should not be asked to do Defendants' work. Defendants contended that while the evidence indeed suggests a need for improvement in the implementation of the protocol, the situation does not rise to the level of a constitutional violation. Plaintiffs position is somewhat understandable, since Plaintiffs primary interest in the present litigation is not improving California's lethal-injection protocol but rather delaying or avoiding his own execution. However, if Defendants' goal is to resume executions as soon as possible, the Court respectfully suggests that their unwillingness to see the situation for what it is and to be proactive is self-defeating.


[**32] Accordingly, and respectfully, the Court urges the Governor's Office to take this opportunity to address seriously now, rather than later, the significant problems with OP 770 and its implementation. In light of the well-documented management issues in California's prison system generally, see, e.g., Plata v. Schwarzenegger, No. C 01 1351 TEH, 2005 U.S. Dist. LEXIS 43796, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005), the Court believes that the Governor's Office is in the best position to insist on an appropriate degree of care and professionalism in carrying out what Defendants [*983] properly characterize as the "solemn" task of executions. 14

FOOTNOTES

14 Part of the problem may be that the prison officials responsible for implementation of the protocol see their legal obligations too narrowly. Warden Ornoski testified that he believes that a "successful execution" is simply one where "the inmate ends up dead at the end of the process." When asked whether he considered a successful execution to mean anything else, he responded, "I'm thinking not."


[**33] Toward that end, acknowledging its own limited role and with deference to the role of the State's executive branch, and informed by what it has learned in the course of the present litigation, the Court offers the following observations:

First, given past experience, it seems unlikely that a single, brief meeting primarily of lawyers, the result of which is to "tweak" OP 770, will be sufficient to address the problems identified in this case. Rather, as contemplated by the Court in its order of February 14, 2006, "a thorough review of the lethal-injection protocol, including, inter alia, the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms," 415 F. Supp. 2d at 1046, likely will be necessary. To be meaningful, such a review may require consultation with independent experts and with other jurisdictions, and it must be undertaken with an openness to the idea of making significant improvements in the "infrastructure" of executions.

Second, given that because of the paralytic effect of pancuronium [**34] bromide, a determination of an inmate's anesthetic depth after being injected with that drug is extremely difficult for anyone without substantial training and experience in anesthesia, the protocol must ensure that a sufficient dose of sodium thiopental or other anesthetic actually reaches the condemned inmate and that there are reliable means of monitoring and recording the inmate's vital signs throughout the execution process. An adequate protocol also must include a means of providing additional anesthetic to the inmate should the need arise. Because an execution is not a medical procedure, and its purpose is not to keep the inmate alive but rather to end the inmate's life, the Court agrees with Defendants that the Constitution does not necessarily require the attendance and participation of a medical professional. 15 However, the need for a person with medical training would appear to be inversely related to the reliability and transparency of the means for ensuring that the inmate is properly anesthetized: the better the delivery system, the less need there is for medical participation.

FOOTNOTES

15 As noted earlier, this Court's order of February 14 giving Defendants the option of having an anesthesiologist ensure Plaintiff's unconsciousness was intended as a one-time solution to permit Plaintiff's execution to proceed as scheduled. It was not meant to suggest or to hold that the participation of medical professionals in lethal-injection executions generally is required by the Constitution.


[**35] Third, because the constitutional issues presented by this case stem solely from the effects of pancuronium bromide and potassium chloride on a person who has not been properly, anesthetized, removal of these drugs from the lethal-injection protocol, with the execution accomplished solely by an anesthetic, such as sodium pentobarbital, would eliminate any constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure that the inmate actually receives a fatal dose of the anesthetic. 16 Should Defendants [*984] wish to retain a three-drug protocol, which it most certainly is their right to do, they must address in a serious way the broader structural problems in implementation outlined in this memorandum.

FOOTNOTES

16 Along the same lines,

it is somewhat significant that at least nineteen states have enacted laws that either mandate the exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking agent in the euthanasia of animals. It is also of some significance that the leading professional association of veterinarians promulgated guidelines that prohibit the use of a sedative with a muscle paralyzing drug for purposes of euthanasia? .

Beardslee, 395 F.3d at 1073 (footnote omitted). As noted previously, the use of pancuronium bromide also is at issue in the PNS litigation.


[**36] V

Accordingly, and good cause therefor appearing, within thirty days Defendants shall advise the Court and Plaintiff of their response to this memorandum, including specifically whether Defendants and the Governor's Office intend to review and revise OP 770 further and, if so, how much additional time, if any, they believe they will need to complete that task. 17 Plaintiff may file a response to Defendants' submission within fifteen days after the submission has been served upon his counsel of record. The Court will not construe any pleading filed in response to this memorandum as a waiver of any arguments with respect to the constitutionality of the current version of OP 770, its implementation, or any other legal issue or procedural question presented by the instant case.

FOOTNOTES

17 The Court notes that any proposed time line may need to be altered depending on the outcome of Morales v. California Department of Corrections and Rehabilitation, No. CV 061436 (Cal. Super: Ct. County of Marin filed Apr. 5, 2006), which addresses whether Defendants must follow California's Administrative Procedures Act in promulgating a lethal-injection protocol, and which is scheduled to be decided on cross-motions for summary judgment on January 31, 2007. Cf. Bowling v. Ky. Dep't of Corr., No. 06-CI-00574 (Ky. Franklin Cir. Ct. Nov. 30, 2006) (holding that Kentucky's lethal-injection protocol violates Commonwealth Administrative Procedures Act).


[**37] IT IS SO ORDERED.

DATED: December 15, 2006

JEMMY FOGEL

United States District Judge