Ms. Margo Schulter 5901 Newman Court #35 Sacramento, CA 95819-2618 telephone: 916/457-8935 e-mail: mschulter@calweb.com 25 June 2010 Mr. Timothy Lockwood Chief, Regulation and Policy Management Branch California Department of Corrections and Rehabilitation Post Office Box 942883 Sacramento, CA 94823-0001 e-mail: RPMB@cdcr.ca.gov Re: Comment on Proposed Regulations on Lethal Injection California Code of Regulations Title 15, Crime Prevention and Corrections, Section 3349 California Department of Corrections and Rehabilitation Subchapter 4 General Institution Regulations, Article 7.5 Administration of Death Penalty Dear Mr. Lockwood: Thank you for the opportunity to comment on the revised version of California Code of Regulations Title 15 Section 3349 and relevant subsections regarding procedures for executions by lethal injection (Second Renotice, 11 June 2010). ----------------- Table of Contents ----------------- 1. Introduction: Resuscitation and the tardy reprieve 2. The Historical Reality: The Regan, Abbott, and Chessman executions 2.1. Hanging: Joseph Francis Regan (18 August 1933) 2.2. Lethal gas: Burton W. Abbott (15 March 1957) 2.3. Lethal gas: Caryl W. Chessman (2 May 1960) 3. Lethal Injection and Resuscitation: Some considerations ----------------------------------------------------- 1. Introduction: Resuscitation and the tardy reprieve ----------------------------------------------------- In 1999, the motion picture _True Crime_ presented a thrilling fictional scenario calling our attention to a situation which chillingly has already occurred at least three times in the administration of the death penalty in California, and remains unaddressed in the current revised version of the California Department of Corrections and Rehabilitation (CDCR) lethal injection regulations: the tardy news of a stay of execution from the Governor or a court of law after the execution has commenced. In _True Crime_, the climactic scene is set at San Quentin Prison, where a prisoner who is in fact innocent awaits execution under a three-drug protocol like that proposed in the current regulations and used both in 1999 and today in most states retaining capital punishment and carrying it out by lethal injection. This protocol involves the administration of sodium thiopental, an ultra-short acting barbiturate, to induce deep unconsciousness; followed by pancuronium bromide, a neuromuscular blocking agent causing the paralysis of all voluntary muscles, and thus halting respiration if the overdose of sodium thiopental has not already done so; and finally a massive overdose of potassium chloride to disrupt the electrical rhythm of the heart and bring about cardiac arrest. Although innocent, the prisoner is calm and resigned to his fate. The execution begins with the injection of the full dose of sodium thiopental, followed by a saline flush of the intravenous (IV) line. Then the administration of pancuronium bromide, the paralytic neuromuscular blocking agent, begins... and the proceedings in San Quentin's death chamber are punctuated by a telephone call announcing a reprieve from the Governor, who has been persuaded by clear evidence of the prisoner's innocence. How do the correction officers and staff respond to this tardy news of a stay? In the motion picture, there is a happy ending: the officers and staff administer resuscitation, and the prisoner soon regains consciousness and is ready for a reunion with the family members who only hours earlier were sharing with him their tearful farewells. While _True Crime_ is, of course, a dramatic entertainment rather than a documentary, it raises an issue sadly grounded firmly in the sobering history of the death penalty in California: If a stay of execution were received in the first few minutes after an execution had commenced, would the CDCR have on hand the necessary equipment, expertise, and procedures to carry out the directive of the Governor or court and save the life of the prisoner? Just as the CDCR itself has no power to abolish the death penalty in California or remove Article I, Section 27 from the California Constitution -- vital steps which remain imperative responsibilities of the People of California -- so it would not be concerned with the reasons which might prompt the Governor or a court of law to announce a last-minute reprieve or stay of execution. The issue addressed in this comment, and which must be addressed by a lethal injection protocol reflecting both the lesson's of California's historical experience and the evolving standards of decency of our society in the 21st century, is the procedure to be followed for medically treating and reviving a prisoner during the first few minutes of an execution if such a tardy stay is received. Three sobering and indeed chilling instances show that the possibility of a last-minute stay being received shortly after an execution has commenced is not merely a stirring theme of fiction or a figment of the imagination. On August 18, 1933, Joseph Francis Regan fell through the trap door of the gallows at San Quentin on which he was hanged literally a few seconds before word could reach the execution team that Governor James Rolph had ordered a stay. The event evidently became known to the public only when Clinton Duffy, then Secretary to Warden James B. Holohan, recounted it in his memoirs, _88 Men and 2 Women_ (Garden City, N.Y.: Doubleday, 1962), pp. 83-89. On March 15, 1957, Burton W. Abbott was led to the gas chamber, adopted by the California Legislature two decades earlier as a more up-to-date and humane method of carrying out the death penalty than hanging, and strapped down in one of the lethal chamber's two chairs. Two minutes or less after the fateful cyanide pellets had been dropped into a compartment below the prisoner's chair holding sulfuric acid, a telephone in the adjoining area rang: Governor Goodwin Knight, then on board a ship, had just used a radiotelephone to order a stay of execution. However, given the deadly peril that the fumes of hydrogen cyanide gas would pose to would-be rescuers as well as witnesses in the area, there was no practical way of halting the execution. On May 2, 1960, essentially the same scenario played out again when Caryl W. Chessman was strapped into the chamber's "Chair B" after spending the then-unprecedented span of almost 12 years on Death Row at San Quentin. In San Francisco, Federal District Court Judge Louis E. Goodman granted a stay, and his secretary sought frantically to reach the prison, misdialing the number on her first attempt. According to one account, she reached the prison at about 10:04 a.m. -- about 45 seconds after the pellets had been dropped. As with the Abbott execution, there was no way of attempting to halt the execution and save Chessman's life which would not have imperiled the lives of many others, both rescuers and witnesses. In each of these three historical instances, the method of execution itself precluded or fatally impeded any attempt to resuscitate the prisoner. For Regan, assuming that his hanging by the long drop method was properly carried out, the artfully calculated drop and careful placement of the noose would instantly inflict massive and fatal spinal trauma, thus ruling out any effective means of reviving the prisoner. For Abbott and Chessman, the special circumstances of the gas chamber which precluded a rescue attempt rendered moot the question of whether a victim who had suffered a comparable degree of cyanide poisoning in a setting permitting prompt access by rescuers might have been saved. With lethal injection, however, neither of these problems prevents an attempt to resuscitate a prisoner during the first few minutes of an execution in the event of a belated stay. Unlike long drop hanging, lethal injection does not instantly inflict massive and fatal damage, but rather first places the prisoner in a deep plane of anesthesia by the administration of a barbiturate such as sodium thiopental. In a one-drug protocol such as that used by the State of Ohio and also adopted by the State of Washington as its preferred method, this agent alone eventually causes death by depressing the prisoner's respiratory activity, ultimately causing circulatory collapse, with the process typically taking about ten minutes. In the three-drug protocol which remains the standard practice in other lethal injection states, the execution likewise begins with the administration of a massive overdose of sodium thiopental which would generally be fatal in itself, typically followed (as in the CDCR regulations) by some kind of "consciousness check" to be sure that this drug has indeed rendered the prisoner unconscious, and thus unable to experience suffering from the effects of the remaining two drugs, the neuromuscular blocker and then the fatal potassium chloride to stop the heart. Under either type of protocol for lethal injection, resuscitation seems both possible and practical during the early phase when the prisoner's central nervous system activity has been severely depressed by the sodium thiopental, but there has not yet been any prolonged oxygen deprivation or disruption of cardiac activity. Either type of protocol may also raise some of the same difficult issues as more familiar scenarios in emergency medicine where practitioners must decide if it seems practical and appropriate to attempt resuscitation on a victim of drowning or cardiac arrest, for example. Apart from the ability to restore spontaneous cardiac rhythm and respiration, the critical limiting factor is cerebral resuscitation: re-establishing neurological functioning and avoiding or minimizing any irreversible brain damage. Thus the many bioethical quandaries faced by our medically advanced society when it comes to making informed decisions about end-of-life care, setting guidelines as to when resuscitation efforts or advanced life support technologies should or should not be applied, and indeed over the last 50 years revising the very definition of death, take on an especially problematic aspect when that death is inflicted on schedule by society itself, and often upon a healthy individual who could otherwise expect to live for many more years. The purpose of this comment is not to attempt definitive answers to the possibilities and dilemmas of resuscitation raised by the method of lethal injection in the event of a belated stay of execution, but to raise questions which can, should, and must be addressed by any valid regulations governing such an execution under California law. This conclusion is supported by simple common sense, and by a consideration of the kind of timeframe actually involved in the historical instances of the Regan, Abbott, and Chessman executions in California. As we shall see, in the Regan hanging the stay order was being relayed by Duffy to the execution room literally at the moment that the trap fell. In the Abbott and Chessman gas chamber executions, word seems to have reached the witness-filled area around the sealed lethal chamber itself within a minute or two in both instances. Translating this timeframe to the situation of an execution by lethal injection, the prisoner would either just be in the process of experiencing the effects of sodium thiopental and moving into unconsciousness, or else would would have arrived at a deep plane of anesthesia, but would not yet have suffered the effects of prolonged respiratory depression or circulatory failure. Thus with proper equipment and trained personnel guided by appropriate procedures, saving the prisoner's life while avoiding long-term neurological damage should be possible. This commonsense conclusion is also supported by a notable judicial decision regarding lethal injection regulations proposed in the State of New Jersey under its former death penalty statute, _In the matter of Readoption with Amendments of Death Penalty Regulations, N.J.A.C. 10A;23 By the New Jersey Department of Corrections_, 842 A.2nd 207, 211 (Superior Court of New Jersey, Appellate Division, 2004), see . While the abolition of capital punishment in that state in December 2007 renders the issue happily moot for the people of that wise jurisdiction, the less happy CDCR and the People of California cannot morally or legally ignore the lessons of that 2004 decision. The first lesson is that lethal injection regulations must anticipate the possibility of a stay made known to the execution team after the administration of the drugs has begun: "We think it plain that an inmate who is being executed in error because a stay of execution has been issued after the injection is administered is wrongly deprived of due process and fundamental fairness, to say nothing of life itself, if the state does not take every feasible and possible step to correct that error." _In the matter of Readoption_, id. Thus the oft-repeated fact that an execution is intended to have the irreversible consequence of death does not excuse the state from assessing and if feasible acting upon an opportunity to halt an execution in progress if a stay is received before the point of irreversibility is reached. The second lesson is that if a given lethal injection protocol does in fact by its drug regime preclude or make infeasible such a resuscitation attempt once the injection process has begun, then the state is additionally obliged to assess whether "there are any appropriate lethal drugs whose effects might be reversible." Id. In short, the CDCR must craft its lethal injection regulations so as to provide appropriate equipment, personnel, training, and procedures for resuscitation efforts in the event of a belated stay of execution. Further, in evaluating the chemicals to be used and the details of their administration, the CDCR must take into account the possibility of such a last-minute stay and the feasibility of reviving the prisoner during at least the earlier phases of the procedure as a relevant and indeed salient factor. Again, the purpose of this comment is not to propose definitive answers but to raise questions which the regulations must address. --------------------------------------------------------------------- 2. The Historical Reality: The Regan, Abbott, and Chessman executions --------------------------------------------------------------------- During its 160-year history as a state, California has used three methods of execution: hanging; lethal gas (adopted in 1937); and lethal injection (adopted in 1992 as an option prisoners might choose as an alternative to the gas chamber, and now the method of choice unless a prisoner selects lethal gas). While there has not yet been any report of an execution by lethal injection where a stay was received by prison officials after the administration of the drugs had commenced, California's experience with the gallows and the gas chamber illustrates some of the ways this scenario might transpire. It is interesting that in 2010, as in 1933 at the time of the first of our historical cases, the telephone is the means by which a lifesaving message from the Governor or a relevant judicial authority might be transmitted to the death chamber at San Quentin. --------------------------------------------------- 2.1. Hanging: Joseph Francis Regan (18 August 1933) --------------------------------------------------- Whatever its humanitarian or aesthetic disadvantages, the older English method of hanging by simple suspension or a short drop had one potentially saving grace: the condemned man or women, often suffering from a process of slow asphyxiation which could take many minutes to kill, might well be cut down and revived in the event of a late reprieve. Indeed the lore of the gallows in England includes first-person accounts of "half-hanged" people who lived to tell the tale. Additionally, a condemned person might be duly hanged by the neck until adjudged dead, and then cut down for burial -- only spontaneously to revive at some point after what appeared to have been a "successful" execution. Such an outcome, while reportedly interpreted in medieval times as a sign of divine intervention giving a welcome opportunity for a pardon, was evidently by the 18th century seen as a regrettable technical difficulty, as a later age might phrase it, calling for a refinement of technique. One such refinement, notably used in 1760 for the execution of Lord Ferrers, a noble with a reputation for a dissolute way of life who had murdered his servant, was the "New Drop," a gallows with a trap door which could be released to suspend the prisoner at the end of the rope. Two advantages seem to have recommended the New Drop: the trap mechanism seemed a more decorous method of initiating an execution than having the prisoner turned off a ladder or suspended in mid-air when a supporting cart was pulled away by a horse; and the drop from the platform, although typically far insufficient to break the neck, might nevertheless inflict soft-tissue damage deemed to make an unintended revival less likely. Thus the advent of the New Drop, and its application in the later 18th and early 19th centuries as the increasingly standard method, did not immediately mean a swifter and more humane death for the unfortunate victim of judicial hanging. As late as the mid-19th century, the English hangman might give a drop of 18 inches or less, with results for the prisoner often comparable to those of previous centuries when the ladder or cart was the state of the art. Public executions continued until 1868, with the prolonged struggles of the woman or man at the end of the rope as a routine sight for the crowd. In the early 19th century, prisoners in the United States might face the traditional English method of being suspended from a cart, with contemporaneous accounts frankly describing their "death throes." With either this method or the English gallows equipped with a trap door but using a drop too short to break the neck, some men and women might nevertheless swiftly become unconscious if the rope happened to occlude the carotid artery and cut off cerebral circulation; but prolonged and conscious suffocation was an oft-reported occurrence. During California's first years of statehood, Ireland seems to have been the scene for an advancement of the art: it was observed that a sufficiently long drop, coupled with proper placement of the noose, would serve instantly to fracture or dislocate one or more of the cervical vertebrae, producing immediate unconsciousness and minimizing or eliminating any signs of struggle. As stated by Edmund Clarence Stedman in his article "The Gallows in America," 13 _Putnam's Magazine_ 225-235 (1869), available at , this goal of a swift and painless death was also the ideal in the United States, but not so consistently the reality. "The _theory_ of hanging is that the neck of the culprit should be broken"; but available accounts of executions led this author to conclude that in at least 60% of the reported cases, the neck had not in fact been broken, id. at 228. Presciently, given the imperfections of the art which he detailed at some length, he observed: "Doubtless, with new scientific knowledge, a painless mode of killing may be discovered, -- as by an electric shock, or by the use of some deadly anaesthetic." Sadly, he was too optimistic in predicting that "the limitation and abolition of the Death-Penalty grow so rapidly that there is small likelihood of its modification by new forms." Id. at 230. And thus the unenviable quagmire in which the CDCR finds itself today, and from which the enlightened legislators and voters of California must ultimately deliver it. However outdated both the death penalty in itself and the time-honored institution of the gallows may have seemed by 1869, death by hanging was to receive a new lease on life in English because of two developments: the moving of the fatal scene from the public square to the privacy or a prison yard or execution shed; and the esteemed craft of William Marwood, who enthusiastically embraced the Irish technique of the scientifically tailored long drop and sought through the experience of each new execution to perfect this fine art. In 1872, Marwood assumed his position as one of the most renowned executioners in English history, indeed styling himself not merely a hangman whose legally ordained clients duly underwent the sentence of being hanged by the neck until dead, but an "executioner" intuitively grasping the relevant laws of physics and tailoring this understanding to the weight, build, and other particulars of the prisoner so as to produce "instantaneous loss of consciousness and the speedy death of even the most robust," as an English report of 1886 phrased it. See Timothy V. Kaufman-Osborn, _From Noose to Needle: Capital Punishment and the Late Liberal State_ (Ann Arbor, Mich.: University of Michigan Press, 2003), p, 88, . Either in England or the United States, such a "scientific" technique of hanging required a fine judgment and calculation so that the force of the drop was sufficient to break the neck, creating such massive spinal damage as to serve as almost a functional equivalent of the guillotine; but preferably not great enough to cause outright decapitation, as did happen on occasion. As a result of Marwood's methodical approach, a table of drop lengths was developed, and later revised, based on the weight of the prisoner. In England, at any rate, there was a humane understanding voiced at times officially that it was always preferable, when in doubt, to err on the side of risking decapitation rather than slow strangulation. Marwood's tenure as executioner coincided with some interesting developments in California, for example the Legislature's adoption in 1874 of a provision that a jury convicting a defendant of murder in the first degree would have discretion to set the penalty at either death or life imprisonment. While England never adopted this American policy of jury discretion but instead tempered a legally mandatory death penalty by frequent exercise of the Royal Prerogative of Mercy (until the abolition the death penalty for murder in 1965), the executioners of California did adopt Marwood's approach of carefully tailoring the drop to the weight, frame, and other attributes of the prisoner so as to make the process as least unpleasant as possible for the human beings they were asked to kill and the witnesses alike. Such was still the state of the art in the early 1930's as California continued to use the gallows as its chosen method of execution. In 1932, Joseph Francis Regan was in Clinton Duffy's words "an unemployed movie actor and part-time holdup man" who became part of a scheme to burglarize the Fox Westwood Theater when recruited by an "ex-convict" left unnamed by Duffy. Another person in the scheme, whom Duffy refers to by the pseudonym of "Carl Fellows," was a locksmith whose economic plight in the worst period of the Great Depression made the unnamed ex-convict's offer one that he evidently found tempting. Duffy, _88 Men and 2 Women_, p. 83. The plan was to make a covert entry into the building late on a Saturday night (easy, since Fellows had in his professional capacity installed the locks there and still had the keys) and then rob the theater manager the next morning when he came to collect the receipts from a safe. Carrying out the entry as planned, Fellows and Regan stationed themselves in the theater office and readied themselves for their encounter with the manager. While Regan evidently intended a lucrative venture in which no one would get hurt, he did give Fellows a gun and hold onto another for himself, explaining: "These are only for scaring people in case of any trouble." Id. at p. 84. As expected, the next morning they had company: not the manager, but four other theater employees who entered the office where the uninvited duo were ensconced. These newcomers are being tied up when someone else started to open the door. Fellows, observing this tall gentleman's size and build, pointed him out to Regan as the manager, and the two partners in crime pursued him with drawn weapons. Rather than either submitting to the stickup or running, however, this man stopped, drew his own weapon, and "exchanged shots" with the pair of intruders. Tragically, he was shot in the heart with fatal effect. As it turned out, he was not the manager he had been mistaken for, but rather a plainclothes police officer named Hugh Crowley. As Duffy explains, id. at 84 and 86, Regan had fired the fatal shot although Fellows had evidently panicked and pulled the trigger of his weapon several times. The killing of Crowley, a peace officer who died while trying to stop the commission of a felony, rightly was deplored and denounced by the community, and the fallen officer fittingly honored by Governor Rolph, who delivered the funeral oration. While the Governor appropriately called for "justice," this justice was tragically confused by the newspapers, large segments of the public, and the law itself with the cruel and illusory "remedy" of judicial homicide. Both Regan and Fellows were accordingly convicted, sentenced to death after the jury declined to exercise its discretion to choose life imprisonment, and arrived at Death Row in March, 1932. In Duffy's view, Governor Rolph "was a compassionate man who used any reasonable excuse to stall off executions," id. at 86. While Duffy wisely makes no attempt to reconstruct the Governor's view of the case, it is possible very quickly to suggest some considerations which might lead any compassionate governor to seriously consider clemency, as Rolph may have in Regan's case. Certainly burglars and robbers who arm themselves with guns, and more specifically with fully operative and loaded guns, assume liability for any deaths that may result from their firing of those weapons, albeit unplanned or even accidental. The fact that the victim was a police officer seeking to stop the robbery, albeit not recognized as such at the moment of the confrontation and shooting, added further to the community's outcry. At the same time, it was true that this was what is often styled "a robbery gone bad," as opposed to a planned killing in order to eliminate a witness, or simply for the thrill of the murderous act. In Duffy's judgment, while Fellows was judged by his crime partner Regan to be "square" and quite naive about the criminal life, Regan himself, although "smoother and more experienced," was "hardly the thug type." Then, as now, a governor might well feel that the death penalty, if used at all, should apply only to the worst offenders within the broader and always heinous universe of first degree murder. Although California did not then have available in its statute books the penalty of life without possibility of parole for robbery-murder, a provision enacted in 1977 and expanded to a wider range of "special circumstances" murders by the voters in 1978 (Proposition 7), the Governor had the power, when commuting a death sentence to life imprisonment, to specify a condition of no parole eligibility. Thus he could give due weight to the community's need to denounce the crime while avoiding the added tragedy of an execution. Three times the Governor had granted stays, when Regan's new execution date of August 18, 1933 arrived. Ironically, as Duffy notes, Regan as part of his theatrical career had ably portrayed a condemned prisoner, and "had won several good notices for the convincing manner in which he walked the last mile to his screen execution," id. at 85. Regan's hanging was set for 10 a.m., with Duffy prepared to join Warden Holohan in the unpleasant duty of witnessing the execution. The Warden, however, asked his secretary instead to stay in the office and focus his attention on the telephone line to the Governor, in case Rolph changed his mind as the fateful moment impended. Dutifully Duffy held the two phones, one line connecting him with the Governor's office and the other with the "death watch." At 9:55, he checked with the clemency secretary in Sacramento and heard that there was no news; evidently this execution would proceed as scheduled. Duffy sat with an ear to the phones and his eyes on the clock as the minute hand signaled the arrival of the appointed hour, and watched intently as the second hand made two rotations. On the dot of 10:02, the frantic voice of the clemency secretary shattered the cold sentence. "Clint -- stop the execution! The governor signed another reprieve!" I turned to the other phone and yelled, "Hold everything!" I heard a thud. "Too late, Mr. Duffy," the death-watch officer said. "There's the trap now." "Forget it," I said wearily. "I don't know why I said that. The reporters are asking questions and I guess I'm a little nervous." I hung up with a hand so wet that it stuck momentarily to the telephone instrument. Then I turned back to the governor's line. "The man has already been executed," I said bleakly. "This never happened, Clint," the secretary said. "Don't even breathe a word to anyone. I'll deny it and so will the governor. I'm tearing up the reprieve." "It never happened," I repeated. "There was no reprieve." "Don't even tell the warden," he said. "I won't even tell the warden," I said. I never did. He went to his grave without knowing about it. (Duffy, id. at 87.) If California had been using a method of carrying out Regan's sentence which permitted his resuscitation literally a few moments after the start of the execution, would Governor Rolph ultimately have granted clemency? We know that in January 1934, after authorizing five more stays for Fellows, he did commute this co-defendant's sentence to life without parole. Fellows, an outstanding prisoner acclaimed for his service and self-betterment, ultimately was granted a further commutation by Governor Edmund G. "Pat" Brown and released in 1960, id. at 88-89. As Duffy makes clear, while Fellows made the most of his release by performing social and religious service in the larger arena of the free community, he was dedicated to giving his utmost whether granted this wish or called upon to serve his full sentence of life without parole which is now the almost certain fate or prisoners sentenced to this penalty under the 1977 and 1978 California statutes, save in rare cases where actual innocence is demonstrated. Regan, while he would have had to be an exceptional human being indeed to have equalled or exceeded his former crime partner's achievements, could also have contributed to the prison community and perhaps taken part in some theatrical entertainments while expiating his offense against society. Warden Duffy's chilling story of a race between the news of clemency and the fall of the trap door in which a tie spelled the death of the prisoner shows in graphic terms why the CDCR must craft and adopt a lethal injection protocol that permits the revival of the prisoner during at least the earlier stages of the execution, and provides the ways, means, and trained personnel to carry out that resuscitation if a belated stay arrives. The voters of California, in turn, should make such precautions unnecessary by abolishing the death penalty. ------------------------------------------------- 2,2. Lethal gas: Burton W. Abbott (15 March 1957) ------------------------------------------------- The tragedy of Joseph Francis Regan evidently remained unknown to the public until Warden Duffy published his account. In contrast, the tragedy of Burton W. Abbott was promptly reported within and beyond the borders of California. In contrast to the cases of Regan and his associate "Fellows," where guilt was uncontested and the clemency decision focused on the aggravating and mitigating circumstances of the offense and the offenders, Abbot's case presented the situation described by the American Law Institute in its Model Penal Code of 1962, former Section 210.6 (1) (f): "Although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt." This provision, defining one of the circumstances for jurisdictions choosing to retain capital punishment (an issue on which the Institute takes no position) under which a trial judge is directed to exclude the jury's consideration of the death penalty and impose an alternative sentence such as life imprisonment, became a _former_ part of the code in 2009 when Section 210.6 on the death penalty was officially withdrawn. After long study based on three decades of practical experience, the Institute had concluded that a minimally adequate and fair death penalty system had proved an illusory goal even with the benefit of its famous guidelines often cited as the model for a constitutionally valid statute. This recent action, of course, in no way weakens the moral force of the position that if the death penalty is to be retained at all, it should not be executed if there remains even what the Royal Commission on Capital Punishment called a "scintilla of doubt" as to guilt in its 1953 report. Burton W. Abbott, a student at the University of California of Berkeley with a rather refined presence, was accused of the kidnapping and murder of 14-year-old Stephanie Bryan. After her disappearance, Abbott's wife had found and reported personal items of the victim someone had left in the basement of the couple's home; the young woman's body was found only about 100 yards from a cabin owned by the Abbott family where the suspect said he driving at the time she was abducted from a location 285 miles away. This circumstantial evidence was certainly incriminating, although not airtight. Making the most of the fact that one of the items recovered from the basement of the Abbott home (which the couple shared with Burton's mother) was Stephanie Bryan's brassiere, the prosecution presented an unproven hypothesis of attempted rape and murder, seeking to sway the jury toward a verdict of death. Together with this hypothesis of a sexual assault, incapable of being objectively tested given the condition of the victim's body found months after her disappearance on April 28, 1955, the prosecution attempted to make up for its lack of conclusive evidence (direct or circumstantial) by presenting to the jury items such as the unwashed clothing recovered along with the body, which reportedly had been kept in a closed box and gave off such a stench as to drive some attendees out of the courtroom. Abbott observed that the basement of his home where the victim's personal items were found had been used after her kidnapping as a polling place, so that someone could have left them there without his knowledge. He presented his plight as a "frame-up." The fact that the jury deliberated for seven days before finding him guilty of first degree murder and imposing the death penalty seems indeed consistent with doubts as either guilt or punishment, both of which were decided at the time in a single proceeding. In July 1957, the Legislature would enact the bifurcated capital proceeding with separate trials on guilt and punishment, a procedure which was to become a basic feature of modern death penalty systems in the United States. The officials and staff at San Quentin, however, were not concerned with the legal issues of the trial or the moral issues of clemency for Abbott, who had suffered from tuberculosis and lost a portion of a lung, raising questions, along with his slight build, about his physical ability to have performed some aspects of the crime such as carrying and burying the victim's body. For summaries of the case and the evidence see: Whatever the actual or perceived state of the evidence, on March 15, 1957, Warden Harley O. Teets and the staff at San Quentin had the task of carrying out Abbott's death warrant unless directed otherwise by a state of execution. A complicating factor on that morning with what in military parlance might be styled "command, control, and communications" was Governor Goodwin Knight's presence on a naval vessel off the California coast, the aircraft carrier Hancock, requiring him to rely on a ship-to-shore radiotelephone in order to transmit his possible order for a stay of execution to his clemency secretary, who would in turn relay it to officials at San Quentin. The execution by lethal gas, originally scheduled like Regan's by hanging for 10 a.m., was rescheduled for 11 when the Governor granted a one-hour stay to permit Abbott's attorney, George T. Davis, to pursue possible legal remedies. At 11:15 a.m., the prisoner was led to the gas chamber. Warden Harley O. Teets shook hands with him and said, "God bless you." Abbott replied, "Thank you." At the same time Davis, who had managed to reach the Governor at sea after some problems the attorney said he had encountered with busy telephone lines, explained that there was a new legal point. Governor Knight decided to grant another stay, and contacted his clemency secretary Joseph Babich in Sacramento. As reported by _Time_, "Race in the Death House" (March 25, 1957), , the Governor listened as Babich relayed his stay to Warden Teets and heard the following dialogue: Babich: Has the execution started? Warden: Yes, sir, it has. Babich: Can you stop it? Warden: No, sir, it's too late. According to one account, the cyanide pellets were dropped at 11:18 and the news of the Governor's stay received at the prison at 11:20. Other versions make the margin even closer, alleging that the gas was forming a shroud around Abbott or even that he "died watching the warden answer the telephone call that would have saved him," implying that he was still conscious at the time. Since, at least according to the general understanding current in that period, a prisoner would normally retain consciousness for only about 10-15 seconds after the pellets were dropped and the first breaths taken of the deadly fumes, this would suggest that the call may have come less than a minute after the fateful pulling of the lever to start the execution. Whether the interval between the fall of the pellets and the telephone call from clemency secretary Babich was two minutes, as in a widely reported timeline, or only a few seconds, as in the most dramatic and possibly somewhat dramatized accounts, the mechanical and other barriers to any attempt at rescuing Abbott were insurmountable. As told in James Avery Joyce, _Capital Punishment: A World View_ (New York: Thomas Nelson and Sons, 1961), p. 162, a prison officer explained the grim realities of the situation: "This is a hermetically sealed chamber without a pressure-lock system to permit entry before the gas is blown out," he stated. "Even if you could send men in with gas masks, you would be endangering the lives of spectators outside, for this gas is a very dangerous substance." In fact, the officer said that it took more than an hour for powerful fans to clear the chamber of the deadly fumes. For the CDCR, which now, as then, is burdened with the task of administering rather than abolishing the death penalty, the lesson of the Abbott execution by lethal cyanide gas is that if the method of lethal injection is more forgiving in its opportunity for rescuing and reviving a prisoner who has received a stay after the injection protocol has commenced, then there is a duty to craft regulations making the most of that opportunity. ----------------------------------------------- 2.3. Lethal gas: Caryl W. Chessman (2 May 1960) ----------------------------------------------- Although Caryl W. Chessman, like Burton Abbott, asserted his innocence of the crimes for which he was sentenced to death -- as opposed to an impressive record of other felonies which he freely acknowledged -- the most important issue for many who opposed his execution, apart from the morality of the death penalty in itself, was the fact that those capital crimes did involve the death of any victim. If guilty as charged, and as the jury found, then Chessman was a robber, kidnapper, and rapist, but not a murderer. In 1948, after a long criminal career and a decision releasing him back into the community which the authorities came very quickly to regret, Chessman set out on a crime spree in the Los Angeles area which included robberies, most notably two of couples parked in cars in areas known as "lovers' lanes." Two victims, Regina Johnson and Mary Alice Meza, were in the course of these robberies escorted at gunpoint from the cars they were parked in with their companions to Chessman's car, whereupon they were sexually assaulted and eventually released. Under California Penal Code Section 209, known as the "Little Lindbergh Law" (an allusion to the notorious kidnapping and murder in 1932 of the "Lindbergh baby," Charles Augustus Lindbergh, Jr., the son of the aviator), kidnapping for purposes of robbery where a victim suffered "bodily harm" was an offense punishable, at the discretion of the jury, by death or life without possibility of parole -- the latter sanction, interestingly, only becoming available for certain aggravated categories of first degree murder in 1977. Given Chessman's criminal record, relationship of mutual antagonism with the police, and general attitude, it is not surprising that the authorities in Los Angeles decided to "throw the book" at him. If he had been duly convicted and received a sentence of life without parole, one might have described the jury's verdict as an ad hoc anti-recidivist measure. Unfortunately, helped along by able prosecutor J. Miller Leavy and also Chessman's antics while serving as his own legal counsel at the trial, the jury instead imposed death sentences for the kidnappings of Johnson and Meza, the two sexual assault victims. Since the sexual assaults -- most serious crimes of violence, of course -- were likely crucial factors in the jury's choice of capital punishment, and California did not provide any death penalty for rape or other forms of sexual assault, the result appeared then, as now, as arbitrary and capricious to many observers in California, other parts of the United States, and the world at large. Because of this basic anomaly in California's criminal justice system, as well as Chessman's literary efforts on Death Row as a bestselling author, his case became an international cause celebre in the course of the almost 12 years he spent under sentence of death. Ironically, one concern of the jury weighing Chessman's penalty of life without parole or death was the question of whether life without parole really meant what it said. When the jurors, during, their deliberations, brought this question to the judge, he answered (in line with the prosecutor's arguments in favor of death) that such a sentence was subject to modification by pardon, commutation, or legislative change. What the judge did not inform the inquiring jury was that the alternatives of pardon or commutation, at any rate, were less likely (especially given Chessman's impressive criminal record, augmented by the convictions the jurors would need to return in order to reach the life or death decision on penalty) because in order to modify the sentence of a prisoner who had been "twice convicted of a felony," a Governor of California would need the concurrence of four members of the state Supreme Court under the California Constitution, Article V, Section 8 (a). In 1960, this was precisely the provision, unfortunately also applying to a prisoner under a sentence of death, which hindered Governor Edmund G. "Pat" Brown's efforts to commute Chessman's sentence to life without parole. As the Governor wrote in his memoirs, he should have nevertheless found a way to spare Chessman's life; but if the jury in 1948 had understood this constitutional check on a governor's pardon or commutation power, they might have themselves sentenced this distinguished offender to life without parole. As with all of these cases, the role of the staff at San Quentin was not to judge the case but to carry out the mandate of the law -- subject to modification, of course, by a gubernatorial commutation or reprieve, or by a stay of execution from some state or federal court. After receiving eight stays of execution over the years, Chessman faced an appointment with the gas chamber on May 2, 1960. Like Abbott, he had for his counsel the dedicated and eloquent George T. Davis, who fought doggedly to save his client's life along with Rosalie S. Asher and other advocates. Chessman's execution, like Regan's by hanging in 1933 and Abbott's in 1957 by lethal gas (before its postponement due to a stay), was scheduled to take place at 10 a.m. As the hour approached, Federal District Court Judge Louis E. Goodman in San Francisco was considering the merits of a stay to permit Asher and Davis time to file new papers with the U.S. Supreme Court. He decided to grant a one-hour stay. William Kunstler, in his book _Beyond a Reasonable Doubt: The Original Trial of Caryl Chessman_ (New York, William Morrow and Company, 1961), p. 288, describes the scene in the area outside the gas chamber at San Quentin: Suddenly, the heavy silence in the room was broken by the shrill ring of a telephone bell. Associate Warden Louis Nelson picked up the receiver. Miss Hickey [Judge Goodman's clerk], who had finally gotten through, was on the other end. "Hold up the execution," she said. "Judge Goodman has granted a one-hour reprieve." Solemnly, the prison official informed her that it was too late. As he hung up, he looked at his watch. The hands stood at 10:04. Ten miles away, in the judge's anteroom, Rosalie Asher sobbed uncontrollably. As Kunstler tells, id., the pellets had been dropped at 10:03:15, about a minute before the call came from Judge Goodman's office. Ms. Celeste Hickey, the judge's clerk, had understandably -- as any of us might have done in such tense circumstances -- misdialed the number for San Quentin on her first attempt. As with the Abbott execution, the mechanics of the hermetically sealed death chamber and the dangers posed to the assembled witnesses by any hypothetical entry into that chamber rendered moot the question of whether medically reversing the early effects of cyanide poisoning and saving Chessman's life might otherwise have been possible. In his _Capital Punishment: A World View_ at pp. 36-39, Joyce reports the views of a California psychiatrist and peace advocate, Dr. Isidore Ziferstein, that skillful emergency treatment including the administration of appropriate antidotes and possibly artificial respiration could have revived Chessman. The realities of the sealed gas chamber, however, made such a scenario academic. Indeed the irrevocable nature of the pull of a lever dropping the pellets was all too reminiscent of another lethal technology evidently only on the drawing boards at the time of Abbott's execution, and just becoming an operational reality around the time of Chessman's execution. This was the intercontinental ballastic missile or ICBM, where the push of a button would launch an unrecallable projectile which, absent a practical missile defense system of the kind sought by both the United States and Soviet Union in the early 1960's, would 25 minutes or so later inevitably deliver its nuclear payload. To sum up the three cases, the time between the initiation of the execution and the news of a stay seems to have been literally a moment or two in Regan's case; two minutes or possibly less in Abbott's case; and on the order of a minute in Chessman's case. Under either a one-drug or three-drug protocol of the kind now in effect in lethal injection jurisdictions, a prisoner in this type of timeframe would be just receiving the dose of sodium thiopental that initiates (and in the one-drug approach also completes) the process of administering the protocol; or entering a state of unconsciousness; or in that state, likely with little brain activity but still quite alive and thus a candidate for resuscitation in response to a stay. The CDCR must address such scenarios, and when doing so should keep in mind the preciousness of each human life involved. ---------------------------------------------------------- 3. Lethal Injection and Resuscitation: Some considerations ---------------------------------------------------------- The New Jersey decision cited above from 2004, left standing when the Supreme Court of New Jersey declined to certify the case for review, , nicely sums up some of the main considerations which the CDCR must take into account in design a valid lethal injection protocol. See _In the matter of Readoption with Amendments of Death Penalty Regulations, N.J.A.C. 10A;23 By the New Jersey Department of Corrections_, 842 A.2nd 207, 211 (Superior Court of New Jersey, Appellate Division, 2004). Interestingly, the New Jersey Department of Corrections (DOC) had, in the challenged version of its regulations, removed earlier provisions for an emergency cart and medical supplies available if needed to revive the prisoner in the event of a belated stay. [A]ppellant challenges the deletion from the 2001 regulations of the previous requirement that during the execution, there be available an emergency cart containing "such equipment, supplies and medications as may be needed to revive the inmate in the event a last minute Stay of Execution is imposed ..." N.J.A.C. 10A:23-2.12(b) (repealed by R. 2001, d. 315). A requirement that the inmate have a cardiac monitor was also then deleted. _In the matter Readoption_, id. The existence of such provisions in the earlier New Jersey regulations suggests that they are both worthy of consideration and feasible. As with emergency medicine generally, there would remain dilemmas as to whether, at a given point in the execution process, resuscitation remains a feasible and beneficial alternative -- just as with a patient in more usual circumstances who has suffered cardiac arrest or has been rescued from the water after a significant period of oxygen deprivation. The New Jersey DOC argued that the emergency cart was not needed because if a reprieve were received when the defendant had been sedated for the execution but the delivery of the lethal drugs had not yet begun, revival would be possible "without the need for the cart." The Court, however, focused on the possible utility of the cart during at least a portion of the injection process itself: It appears that in this regard DOC was relying on its assumption that once the lethal injection has been administered, its effects are irreversible. That, at least, is how we interpret its tautological explanation that "the execution substances, when injected into the person sentenced to death, are lethal...." [25]33 N.J.R. 2013. Id. This is, of course, the truism often repeated that "an execution is not a medical procedure" or "an execution is not surgery" precisely because it is designed to cause irreversible death rather than to achieve some medical benefit for the patient who is then intended to return to normal consciousness. When the possibility of a belated stay comes into play, however, this truism is not the only governing reality: The irreversibility of the lethal injection may, indeed, be a fact that is medically sound, but without an expressed reasoned medical opinion, that cannot be assumed to be true, and medical opinion might, in fact, suggest the contrary. This is particularly so in view of information collected by DOC from other jurisdictions showing that death is not instantaneous but may take up to thirty minutes. Id. Here it might be commented that while some lethal injections have indeed required "thirty minutes" or more from the time the injection process is commenced to death, and more specifically so if there is a serious flaw in the delivery of the drugs, a typical timeframe for an execution following either the one-drug or three-drug protocols now generally in use would be more on the order of 5-15 minutes. To expand upon and perhaps somewhat clarify the Court's point, the assertion that a measure such as an emergency cart might be both feasible and necessary in order to save a prisoner's life may require, as it were, a conceptual "triage" of the execution scenario. At a point, for example, where the prisoner is under sedation but no lethal drugs have yet been injected, revival is certainly possible but the special measure of the cart is not yet necessary to achieve this purpose. For some interval after the administration of the lethal drug or drugs has commenced, let us suppose, resuscitation is still possible -- but only with the help of special measures like the cart. This is the critical interval on which the New Jersey Court focuses, and the CDCR should as well in designing valid lethal injection regulations. At some point, the prisoner enters a state of being irreversibly dead, or possibly of having suffered an insult to her or his central nervous system from the disruption of respiration and/or circulation which, at least given our current limited capabilities in the field of cerebral resuscitation, would inevitably lead to brain death or a permanent coma even were it possible to restore other vital functions. Beyond such a "point of no return," one would agree with the New Jersey DOC that to use an emergency cart would be an exercise in futility. Without explicitly invoking this triage model with its vital second phase where the use of special means such as an emergency cart is both necessary and availing to save the prisoner's life, the Court emphasizes the need for a medically informed analysis of the lethal injection protocol: Our concern is that DOC itself does not have medical expertise, and nothing in the record suggests medical consultation and opinion on the reversibility issue or, indeed, whether there are any appropriate lethal drugs whose effects might be reversible. Id. Here the Court indicates that one must analyze the opportunities for reviving a prisoner if a stay has been received after an execution has commenced as one salient consideration in comparing and evaluating different possible choices of a drug or combination of drugs to be used for a lethal injection protocol, as well as in crafting a detailed protocol once a given drug or combination of drugs has been chosen. In requiring this kind of careful and medically informed analysis, the Court also called attention to a lesson amply documented by the California experience summarized above: belated stays do happen. Simply assuming irreversibility without an articulated medical basis is not enough. We appreciate that the grant of a stay of execution communicated to prison authorities after the lethal injection has been administered is not a likely event. It can, however, happen. It is a foreseeable occurrence. And should it occur, there can be no justification for depriving that inmate a chance at life, if there indeed is chance, and we are confident that contemporary standards of decency and morality would dictate that that chance be accorded. Id. California's experience with the gallows and the gas chamber suggests that with lethal injection also, such an occurrence is indeed eminently "foreseeable," and thus an aspect of the execution process which the CDCR must address. Consequently, unless and until DOC comes forward with strong medical evidence that there is no possibility of reversibility and no other suitable drugs whose effect is reversible, we are persuaded that a death sentence cannot be carried out under these regulations. Id. To the cogent logic of the New Jersey court, one might add a few observations about the medical considerations which might influence procedures for resuscitation in the event of a belated stay. For different reasons, neither long drop hanging as practiced in the case of Joseph Francis Regan, nor cyanide asphyxiation as practiced in the cases of Burton W. Abbott and Caryl W. Chessman, afforded any practical "middle interval" in our triage scheme where medically sophisticated measures of resuscitation could have been feasible, necessary, and availing. With long drop hanging, while death does not ensue for some minutes, the moment of the drop is in fact the "point of no return," since if the execution is properly carried out, irreversible and fatal spinal damage instantly obtains, precisely the result which the modern craft of the gallows is calculated to ensure. Thus while Regan's heart was very likely still beating when news of the Governor's reprieve arrived only moments after the drop, death was presumably inevitable. There was no interval when resuscitation efforts would have been both necessary and availing. With the gas chamber, the mechanics and concerns for the safety of others in the execution area made the resuscitation of Abbott and Chessman infeasible even if it might have been medically quite possible and practical. Thus Dr. Ziferstein's suggestions on how Chessman might have been medically treated and revived were beside the point on that fateful morning of May 2, 1960 -- as they would likewise have been for Abbott. A lethal injection process using either three drugs or one -- with sodium thiopental as the common drug in both types of protocols now in use -- would intuitively seem to present a "middle interval" of some duration where equipment such as an emergency cart, combined with personnel trained in appropriate procedures, would be necessary to save the life of the prisoner and capable of saving that life. An intuitively appealing suggestion that this "middle interval" might cover a considerable portion of the process under the familiar three-drug protocol used by most lethal injection jurisdictions comes from Barrett Duke of the Southern Baptist Ethics and Religious Liberty Commission (ERLC). See Erica Simons, "Supreme Court to Examine Lethal Injection Constitutionality" (posted September 27, 2007), . "States should make every effort to be able to halt an execution before it is completed, but once the final drug is administered, I think the state should consider that its obligation to [resuscitate] no longer exists," said Duke, the ERLC's vice president for public policy and research. Here the "final drug" referred to is potassium chloride, which in the three-drug protocol practiced by Kentucky (the main focus of the Simons article) and other jurisdictions serves to disrupt the heart's electrical rhythm, resulting in cardiac arrest. Duke's assessment impiies that resuscitation efforts would seem both practical and worthwhile if a stay is received at some point in the process of administering the first two drugs, sodium thiopental (as in the one-drug protocol) and pancuronium bromide. The current Kentucky protocol, as we shall see, actually goes further by mandating an attempt to "stabilize" the prisoner at any point in the process if a pardon, commutation, or stay is received. While litigation raised the question of whether Kentucky had provided adequate means and procedures for such resuscitative efforts, it is noteworthy that, as Simons observed, at the time of her 2007 article Kentucky provided a "crash cart -- equipped with a defibrillator, medication and other supplies used in the resuscitation process...." Indeed, the Kentucky protocol calls for resuscitation efforts "at any time during the execution process" in the event of a pardon or commutation by the Governor or a stay of execution from "a court of competent jurisdiction." If such an event should occur, the execution team "shall stop the execution," whereupon the medical staff onsite "shall attempt to stabilize the condemned person with the equipment and personnel listed in subsection 1 of this section [Section 5]." See 501 Kentucky Administrative Regulations 16:330, Lethal Injection Protocol , effective 5-7-2010, Section 5, "Stabilization Procedure," subsection (2). Given the history of the Regan, Abbott, and Chessman executions in California, and the possibility of availing resuscitation efforts if a prisoner receives a pardon, commutation, or stay after the lethal injection process has commenced, the CDCR must formulate regulations providing the equipment, training, and procedures to address this foreseeable occurrence and maximize the likelihood of saving the prisoner's life. Most respectfully, Margo Schulter Sacramento, California 25 June 2010