California is well-known as a bastion of liberalism. The perpetual “blue state” is no stranger to high taxes and government regulations, and last year nearly voted to legalize marijuana. But California’s criminal justice system doesn’t extend as far to the left, illustrated by the state’s rejection of the American Law Institute’s Model Penal Code, and California’s choice not to join states like Michigan, New York, Massachusetts, and 13 others in abolishing the death penalty.
There are currently more than 700 prisoners on death row, but not a single person has been put to death since 2006, 76-year-old Clarence Ray Allen was killed for his three murders. Soon after, federal judge Jeremy Fogel issued a moratorium on the state’s death penalty due to procedural concerns that if the three-drug cocktail were administered incorrectly, it would result in cruel and unusual punishment. The federal 9th Circuit Court of Appeals, which sits in San Francisco, then held that executions must be administered by technicians who are medically trained to give intravenous medications. As this is would be a clear violation of the Hippocratic Oath (“do no harm”), the 9th Circuit’s ruling resulted in a de-facto death penalty moratorium that continues to this day.
A few California judges have recently indicated a desire to maintain this moratorium by acting to prevent carrying out the sentences of a few high-profile death row inmates. Just last week, for example, Marin County Superior Court Judge Faye D’Opal once again rejected the three-drug lethal injections, noting that the state should develop a one-drug alternative. In particular, Judge D’Opal wrote that the drug pancuronium bromide “is unnecessary, dangerous, and creates a risk of excruciating pain.” Judge D’Opal’s tentative decision resulted in yet another death sentence delay for Michael Sims, who was convicted of killing three Domino’s Pizza employees in 1985.
While a handful of California judges have publically opposed the death penalty, it remains legal and mostly popular among Californians. But the fate of the 700 prisoners on death row, and the institution writ large, remains uncertain. “The death penalty is going the way of the dinosaur,” says University of the Pacific McGeorge Law School professor John Meyers, adding that District Attorneys will continue to seek death sentences as long as they are popular.
In her decision, Judge D’Opal also criticized the San Quentin Prison for withholding data on the cost of the state’s executions. Former Warden Jeanne Woodford has said that each execution costs between $70,000 and $200,000, but the California Department of Corrections and Rehabilitation has not released any relevant data. Donald Heller, the lawyer who wrote California’s death penalty law, estimates that the state has spent $4 billion to put only 13 death row prisoners to death since 1976. Heller has since reversed his position and now advocates for abolition.
Most likely, it will not take long before the CDCR locates a one-drug lethal injection to short circuit California’s current de facto death penalty moratorium. At that point, judges who oppose the death penalty on legal and moral grounds will need to scramble to make another argument stick, rely on the California legislature to join those 16 states that have abolished the death penalty, or hold their breaths for the U.S. Supreme Court to weigh in on the matter.
Ben Buchwalter is a law student at UC Hastings College of Law in San Francisco.