Ms. Margo Schulter 5901 Newman Court #35 Sacramento, CA 95819-2618 telephone: 916/457-8935 e-mail: mschulter@calweb.com 29 June 2009 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, California Department of Correctiosn 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 proposed new California Department of Corrections and Rehabilitation (CDCR) regulations for the administration of the death penalty. In the comments which follow, I will strive to be mindful of the high and courageous calling of our correctional peace officers who in many senses are themselves "doing time" for the public good and the good of the prisoners in their care; the prisoners themselves, who as the name of the CDCR itself proclaims are not only offenders in need of correction, but human beings with a potential for rehabilitation; and the People of California, who must accept the ultimate burden of responsibility for the policies which the CDCR carries out. This inquiry into the administration of the death penalty, and more specifically concerning an execution protocol for lethal injection and possible alternatives, provides interested California citizens with an opportunity to exercise that responsibility in a constructive way. I would respectfully emphasize that to point out the flaws or inadequacies in a proposed protocol or procedure is in no way to criticize the correctional officers and other public servants who must carry it out. Rather, it is humbly and perhaps helpfully to serve as their advocate, as well as an advocate for the prisoners and their families who would be most directly affected by the implementation of any execution protocol for the State of California. Please let me say something about my background in approaching the proposed CDCR regulations on which I comment. As someone born in California, I felt the impact of the death penalty from early childhood on, and have been a committed advocate of abolition since around 1961. Since 1977, I have been involved from time to time with legislative advocacy and legal research for appellate capital defense litigation, taking a special interest in historical and constitutional aspects. Of course, much of this may be somewhat tangential to the rather narrow although critical focus of the inquiry at hand centered around the proposed CDCR regulations: not whether, but how, to carry out the death penalty in Calfornia. Accordingly, I will strive to frame my comments accordingly, confining or cabinning their scope to the proposed protocol for execution by lethal injection, and an alternative approach also within the scope of Penal Code Section 3604 for carrying out the death penalty by "the administration of a lethal gas" without the need for a gas chamber or a special lethal agent. This comment, following an opening "Executive summary and Introduction" (Section 1) is thus presented in two parts or sections. The first (Section 2) addresses the proposed new version of Section 3349 and its protocol for execution by lethal injection, respectfully pointing out serious flaws in the choice of lethal drugs; and the absence of either trained health care providers or technical instrumentation for verifying a deep surgical plane of anesthesia before the administration of highly noxious and potentially torturous drugs which are in fact totally superfluous to the purpose of an execution, as opposed to appropriate surgical applications for therapeutic purposes not here relevant. While this criticism is hardly novel, it may carry greater effective weight when understood and articulated more widely at a grassroots level in our state. The second (Section 3) addresses a vital matter touched upon but not treated specifically in the proposed Section 3349 "Method of Execution" and related forms and documents such as CDCR 1801, Notification of Execution Date and Choice of Execution Method" (REV 01/09): the development of a constitutionally valid protocol for execution "by the administration of a lethal gas." Although the purpose of this inquiry is primarily to invite comments on the proposed lethal injection procedures, I would urge that the Department's focus on the "consideration of alternatives" would logically include the question of implementing the statutory option of execution by lethal gas in a way which may be more humane and less burdensome for correctional officers and staff, condemned prisoners and their families, and the People of California at large. Even if this second section is deemed not to come within the scope of comments calling for a direct response from the CDCR, I respectfully include it in order to maintain a constructive and creative focus in addressing what it necessarily a sobering and indeed somber subject. One concern addressed in both sections is the question of impacts on California businesses, and effects on their competitiveness with businesses in other states. In fact, the decisions of the CDCR as to how to implement executions by California's two statutory methods of lethal injection or lethal gas could have dramatic impacts on small and large businesses alike. Carrying out executions by the outdated method of lethal injection, and especially by a protocol including the unnecessarily and potentially torturous drugs pancuronium bromide (Pavulon) and potassium chloride, could trigger massive worldwide disinvestment as well as international tourist boycotts affecting not only California's global prestige but its leadership in world commerce. In contrast, carrying out the death penalty humanely by ambient lethal gas, as explained in the second section below, might win the plaudits even of governments and peoples who have themselves abolished capital punishment, and place California essentially on a moral and economically competitive par with states such as New York, New Jersey, and New Mexico which have either abolished the death penalty legislatively or failed to replace unconstitutional statutes. Last but not least, the new name of the CDCR, with its focus on rehabilitation, seems inconsistent with old-style executions by lethal injection or the gas chamber; but the new approach to an execution protocol for lethal gas, as explained below, strikes a balance between stern retribution and full rehabilitative opportunities for the prisoner undergoing execution. If California is to retain the death penalty at all, then an execution protocol comporting with 21st-century standards of decency and humanity will help to realize the mission of the CDCR while preserving the moral and global economic leadership of the State of California. Most respectfully, Margo Schulter Sacramento, California 29 June 2009 ----------------------------------------------------------- Comments on Proposed Regulations of the California Department of Corrections and Rehabilitation Title 15, Crime Prevention and Corrections, Subchapter 4 General Institution Regulations, Article 7.5 Administration of Death Penalty ----------------------------------------------------------- by Margo Schulter Sacramento, CA ----------------------------------------------------------- ----------------- Table of Contents ----------------- 1. Executive summary and introduction. 1.1. A caution: When bad protocols happen to good people. 2. Confronting a reckless risk of torture: OP 770. 2.1. Killing humans "safely": the veterinary model. 2.2. Reckless inertia: A three-ring pharmacological circus. 2.3. The Blecker scenario: Wanton endangerment as state policy. 2.4. The missing BIS monitor: checking anesthetic depth. 2.5. Lessons learned so far: How not to do executions. 3. A humane alternative: Execution by ambient lethal gas 3.1. Oxygen as a lethal gas: A brief biohistory. 3.2. Ambient lethal gas: Outline for an execution protocol. 3.3. Media and crowd control issues. 3.4. Positive economic impact for small businesses. 3.5. Retribution and rehabilitation. 3.6. Some fine but important distinctions. 3.7. Two relevant benefits: nonbrutalization and flexibility. 3.8. Constitutional robustness: Execution as a domestic partnership. ------------------------------------- 1. Executive summary and introduction ------------------------------------- "Warden [Steven W.] 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.'" Judge Jeremy Fogel United States District Court, Northern District of California _Morales v. Tilton_ (N.D. Cal. 2006) 465 F.Supp.2d 972, 983 n. 14 Like Judge Fogel's inquiry in _Morales v. Tilton_, this process of public comments on the proposed California Department of Corrections and Rehabilitation (CDCR) regulations focuses on a narrow question: not whether, but how, the death penalty should be implemented in California. In conducting such an examination of the proposed new protocol for executions by lethal injection, and possible alternatives for implementing either this method or the statutory option accorded to condemned prisoners of "the administration of a lethal gas" (California Penal Code Section 3604), former Warden Steven W. Ornoski's insight as stated in testimony before Judge Fogel provides an invaluable starting point. Interpreted reasonably and charitably, this insight provides a basis for formulating and perfecting a protocol for execution by lethal gas that can meet the exacting human right standards of the 21st century. In order to succeed, Warden Ornoski's words tell us, an execution protocol must simply conclude with the death of the prisoner. The timeframe, technology, and biological mechanics of the "process" eventuating in this conclusion are wisely, and indeed creatively, left open. Either in reviewing the proposed protocol for lethal injection, or in formulating a more humane and less burdensome alternative for prisoners, prison staff members, and the People of California at large, we find that undue haste to conclude the execution process is the source of serious and indeed fatal errors of conceptualization and judgment. Most obviously and dramatically, the continued incorporation into the proposed lethal injection procedure of pancuronium bromide and potassium chloride, potentially torturous drugs utterly unnecessary to meet the objective of the protocol, is sometimes rationalized as helpful to shorten the execution process by a few minutes, while making it more cosmetically attractive, or at any rate less unattractive, to correctional staff and witnesses. A protocol using sodium pentobarbital as the main lethal agent, possibly supplemented by a tranquilizing pre-medication if the prisoner so chooses, would at least eliminate this risk of physical torture and thus make the process less inhumane and more on par to the norms for euthanasia of companion animals such as dogs and cats as recognized in California Business and Professions Code Section 4827 (d). More generally, however, lethal injection even if thus made less inhumane is an obsolete method of execution for which Penal Code Section 3604, read in light of Warden Ornoski's criterion for a successful execution, happily leaves open an alternative: "administration of a lethal gas" without the need for a gas chamber or a special lethal agent. Rather, the prisoner who so chooses can be executed in a truly humane fashion by an ambient lethal gas mixture including approximately 21% oxygen, 78% nitrogen, 1% argon, and various trace components: to wit, the earth's normal atmosphere, available at San Quentin or any other correctional institution which the Legislature may see fit to designate as a place to conduct executions. Execution by ambient lethal gas will continue to serve the objective of most stern retribution for California's most aggravated and unmitigated homicides and other capital crimes, while also allowing the prisoner undergoing execution the time and space for repentance, restitution, and rehabilitation, thus fulfilling the promise for which the very name of the Department of Corrections and Rehabilitation stands. One might ask why, in view of this attractive alternative, California has taken so long to overcome the institutional inertia which has resulted, among other things, in the "broken" system of lethal injection described and amply documented by Judge Fogel. One factor, highlighted by a progressive understanding of Warden Ornoski's criterion, is a serious underestimation of the time required for a truly humane execution, often by a factor of approximately six orders of magnitude. Allowing sufficient time for a fully humanized execution process, a kinder and gentler process for the prison staff as well as condemned prisoners, should help to expedite and very possibly to simplify dramatically the process intervening between the imposition of a death sentence at the trial court level and its execution. While the duration of an execution may vary greatly depending on the age and health of a condemned prisoner, the execution process itself will be a known quantity which can commence with reasonable speed even while leaving open the possibility not only of the rehabilitation of the guilty, but of the occasional exoneration of a prisoner undergoing execution whose actual innocence may at some point be demonstrated. While the constitutionality of the death penalty itself is outside the scope of this inquiry, the robust constitutionality of ambient lethal gas as a method of execution under Penal Code Section 3604 is most definitely relevant and germane in seeking out possible alternatives to the proposed CDCR procedures for lethal injection. The relevant principle here in analogous to the axiom of "black letter" law that a statute should be interpreted, if reasonably possible, so as to avoid rather than to invite constitutional problems or challenges. Similarly, a humane method of execution should be so designed that only a successful challenge to the death penalty _per se_ (i.e. in itself) could make it constitutionally vulnerable. Execution by ambient lethal gas should amply satisfy this constitutional test, since its incidents are comparable in many ways to those of a sentence of life imprisonment without the possibility of parole (LWOP). Indeed two considerations make this new regime of capital punishment in California not only constitutionally robust but eminently desirable. The first is the high example of the Lanterman Act for Californians with developmental disabilities and their families, passed 40 years in 1969 by an enlightened Legislature. Just as the Lanterman Act established a policy of normalization, inclusion, and "least restrictive environment" for citizens with developmental disabilities, so the option of ambient lethal gas will normalize the execution experience and environment as much as possible both for condemned prisoners and the correctional officers and staff who must facilitate and take part in the process. A recent and highly relevant legal development is the decision of the Supreme Court of California in _Strauss v. Horton_ (S168047) and companion cases (May 26, 2009) on the constitutionality of Proposition 8. In upholding this voter initiative to amend our state Constitution so as to exclude "marriage" for same-sex couples, the Court noted that such couples would nevertheless retain the option of domestic partnership offering in substance "the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an _officially recognized and protected family_ possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage," _Strauss v. Horton_, id., majority opinion at 41, _quoting_ _In Re Marriage Cases_ (2008), 43 Cal.4th 757, 781 (emphasis in original). Similarly, while Article I, Section 27 of the California Constitution, added by Proposition 17 in 1972, declares the death penalty not to constitute "cruel or unusual punishment" or ottherwise to violate that Constitution, the wise adoption by CDCR of an ambient lethal gas protocol would transform a prisoner's execution from an act of ritual killing to a kind of correctional "domestic partnership" actualizing retributive, restorative, and rehabilitative justice with "respect and dignity" for all involved. Although it happens to be my view that this is the _only_ form of judicial execution consistent with our state and federal constitutitonal values, the relevant consideration for this inquiry is that it is the _best_ way to carry out the death penalty in California while retaining and indeed advancing our leadership in the high quest for human rights and the competitive arena of world commerce. -------------------------------------------------------- 1.1. A caution: When bad protocols happen to good people -------------------------------------------------------- In the first of two sections which follow, solicitude for human dignity sadly requires an unsparing critique of what is an egregiously inappropriate new protocol proposed for lethal injection. I would emphasize, and will do so repeatedly out of an abundance of caution, that bad execution protocols should not be confused with the good, conscientious, and courageous correctional officers and prison officials who must carry them out. Further, even the decisionmakers who formulate and ratify bad protocols, often in good measure by indirection and sheer inertia, doubtless mean no harm, but have simply misjudged or not yet recognized the cardinal priorities involved. The second section, in contrast, is meant not only to adumbrate an alternative policy that California can and should follow, but to suggest the heights to which these same correctional officers, prison officials, and decisionmakers can rise, have often risen, and will often rise in the future. What follows is dedicated especially to them, and to the prisoners, crime victims, and families whom the system can and should serve. ------------------------------------------------- 2. Confronting a reckless risk of torture: OP 770 ------------------------------------------------- A lethal injection execution, at its best, remains a violent if almost painless method of killing another human being. Thus San Quentin State Prison Operational Procedure No. 0-770 (OP 770) is inherently a protocol for carefully orchestrated and ritualized violence against a subdued prisoner. That is the brutal and brutalizing reality, no matter how skillfully designed and painlessly administered the proceedings. The fatal poisoning of a human being, even if accomplished as "humanely" and compassionately as our correctional officers and wardens can manage by a massive overdose of a barbiturate such as sodium pentobarbital without the pointless and gratuitous addiition of other drugs with a torturous potential, inflicts a violent death, quite distinct from a natural death or a therapeutic medical intervention. This frank statement at the outset is vital for two reasons. First, as an absolute and unconditional opponent of all execution protocols that involve the active killing of the condemned prisoner, I have the responsibility to disclaim complicity with any "humane" lethal injection that might result from a version of OP 770 eliminating pancuronium bromide and potassium chloride, but retaining the main deadly purpose to kill. As explained in Section 3, there _is_ an execution technology, ambient lethal gas, by which the death penalty can be carried out without such an active process of killing, and this is the true and worthy fix for the "broken" system seen by Judge Fogel and others. What is offered in this section, in stark and dire contrast, is not a "fix" of any kind but simply a warning that inclusion of the "wrong" drugs, even under the tragically misguided premises that undergird OP 770, further aggravates the unjustified killing that any lethal injection execution must involve. Showing how the current form of proposed OP 770 introduces risks of severe pain and torture beyond those inherent or "necessary" to the act of killing itself is a morally dangerous enterprise, because to caution against these aggravating factors might be mistaken for acquiescence in the underlying wrong of killing itself. To dramatize and thus, I hope, somewhat mitigate this risk, I might draw a parallel all too familiar to me from my lay involvement with appellate capital defense, where cannot avoid learning the gruesome facts of "murder most foul" in its many forms. At times those murders in the annals of California jurisprudence deemed most aggravated involve not a premeditated plan to torture (as opposed to kill) the victim, but a kind of botched or bungled plan for what would have been a horrible enough crime, such as a "quick and relatively painless" killing for hire, or as a "favor" to a relative. The killing of Olga Duncan by Luis Moya and Augustine Baldonado, hired by the victim's mother-in-law Elizabeth Ann Duncan, is one famous example; the killing of Terri Winchell by Michael Angelo Morales may be another. Thus see _People v. Duncan_ (1960), 53 Cal.2d 803; _People v. Moya_ (1960), 53 Cal.2d 819; _People v. Baldonado_ (1960), 53 Cal.2d 824; and _People v. Morales_ (1989), 48 Cal.3d 527. A salient and especially inhumane feature of these crimes, of course, is that the perpetrator, whatever the initial murder scenario, must deliberately, callously, and repeatedly inflict unspeakable physical pain and psychological terror on the victim. Yet even had these crimes been committed "smoothly" and without a hitch, they would remain among the most aggravated of murders, justly punishable in my view either by LWOP or by the kind of execution protocol outlined in Section 3 below which, unlike lethal injection, does not involve an act of killing. Pointing out the obvious and potentially torturous as well as tortuous flaws in OP 770 as practiced so far in California and presented in the proposed regulations may come dangerously close to advising private killers like the defendants mentioned above that their plans and intended techniques are flawed and could be much "improved," sparing their prospective victims "unnecessary" suffering while still accomplishing the underlying homicidal design. Having stated and hopefully mitigated to a certain degree the moral peril in which I stand along with the devoted public servants of the CDCR and the citizens of California at large, I would emphasize one radical distinction between the private killings just discussed and the administration of OP 770. In killings such as those of Olga Duncan and Terri Winchell, the perpetrators were necessarily aware of what they were doing when they repeatedly acted to strangle or bludgeon their victims to death. Whether they could fully _appreciate_ at an affective as well as cognitive level the nature of their acts is another issue; but certainly they acted knowingly and intentionally. In contrast, correctional officers and wardens carrying out an execution by lethal injection may have no idea of the gratuitous potential of pancuronium bromide to provide a chemical equivalent of the torture known as "waterboarding," the near-fatal interference with a prisoner's breathing by some form of simulated drowning; or of concentrated potassium chloride to inflict an agony something like that of burning at the stake. Indeed, pancuronium bromide or Pavulon with its paralyzing effects is especially dangerous because the same effect that simulates waterboarding by making respiration increasingly difficult and then impossible also makes it impossible for a possibly still conscious prisoner to express her or his distress by voice or gesture as this slow process of suffocation proceeds and the torture is compounded by the burning sensation of the potassium chloride. These public servants no more aim at emulating the Spanish Inquisition or the Abu Ghraib prison scandal than the early manufacturers of radium watch dials or users of asbestos aimed at the tragic unintended consequences that ensued. However, when risks are clear and ways of avoiding those risks readily available which actually simplify the proposed task -- albeit one morally inadmissible in any case! -- then those who are aware of the facts bear a responsibility to take them into account, even if this means changing "standard operating procedures." Failing to do so, whether or not it is viewed by a relevant court as violating minimal constitutional standards, is an act of administrative misfeasance or nonfeasance. While our state and federal constitutions set constraints on the scope of legislative or regulatory action, the responsibility of a legislator or regulator is not merely to remain within that scope but to seek improvements and correct irrational or needlessly dangerous practices. Although seeking out information on comparative practices of other states is often a reasonable and indeed invaluable strategy in developing California regulations, it is no substitute for the affirmative exercise of independent reason and logic. Of course, the exercise of these intellectual facilities is best carried out to achieve a regulatory purpose itself morally permissible: to run a safe and healthy correctional institution, for example, rather than to kill a subdued prisoner. In discussing a "safe" or at least "less potentially torturous" lethal injection regime, we thus return to the moral dilemma of pointing out how a homicide was or might be "needlessly" cruel to the private or official victim without condoning the underlying homicidal purpose itself. As paradoxical as this task may seem, it is done all the time by judges and juries determining the degree of culpability of a homicide defendant. Indeed, the scholar and philosopher Robert Blecker suggests that making distinctions between different categories or degrees of homicide, as in ancient Hebrew and Greek thought, may be a basic human tendency. For example, Florida law has as one of its categories of first degree with aggravating circumstances (analogous to special circumstances in California) a crime which is "especially heinous, atrocious, or cruel." As the Florida Supreme Court explained in _State v. Dixon_ (Fla. 1973) 283 So.2d 1, 9, this means "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." By this standard, to compound the inherent wrong of a state-sponsored ritual of killing by using pancuronium bromide and potassium chloride, when the underlying homicidal purpose could be accomplished efficiently and "humanely" without running th risk of extreme pain and "chemical waterboarding" which these superfluous drugs pose, is knowingly, however unintended this risk of physical torture, to engage in a "conscienceless or pitiless execution which is unnecessarily torturous to the victim." The analysis which follows of the use of pancuronium bromide and potassium chloride accordingly regards these chemicals as an "aggravating circumstance" to the underlying wrong of a state execution which involves active killing, as opposed to the protocol sketched out in Section 3. While this line of analysis may be helpful to the CDCR, it is not without its moral perils. Since private murders are almost universally disapproved, pointing out how the killings of Olga Duncan and Terri Winchell were especially cruel would not be taken as an endorsement of a "humane, conscientious, and compassionate" technique for killing these victims. Yet because OP 770 is not merely some philosophical thought experiment but a protocol which has been carried out 11 times in California and sadly might be carried out again, to say what is "especially wrong" with it might imply that "fixing" the problems would make the homicidal purpose "right." It would not! With that caution, let us consider the aggravating factors in the current proposed version of OP 770 which, like previous versions, involve gratuitous and especially intolerable risks of human suffering. Then we will conclude with a caution that even a "painless" procedure using sodium pentobarbital as the main lethal agent would constitute a form of psychological torture utterly intolerable to a humane system of criminal justice. -------------------------------------------------- 2.1. Killing humans "safely": The veterinary model -------------------------------------------------- In discussing the concept of a "safe" method of active execution, we should not miss the irony of the very concept. In a 1954 debate on the death penalty in Canada, noted lawyer and abolitionist Arthur Maloney told the story of a "notorious gunman" ascending the traditional 13 steps to the gallows. When the condemned prisoner reaches the last step, it gives way under him, but he manages to grab a railing and avert a fall. Then, he turns to an official and exclaims, "This thing isn't safe!" That said, the basic problem of designing a "safe" lethal injection protocol in California is that a procedure involving considerations of pharmacology and drug effects is being carried out by correctional rather than medical professionals. Even if some of the participants do have a considerable amount of medical training and experience, they are unlikely to be competent anesthesiologists or nurse anesthesists. In the area of animal euthanasia, California recognizes that at times persons without full veterinary training such as animal shelter personnel may need to perform this procedure reliably and with a minimum of pain. In view of the real ethical and political controversies raised by the "putting down" of healthy animals where no-kill shelters and more effective family planning services for our companion animals could make "euthanasia" unnecessary, let us assume that a terminally ill or fatally injured animal is experiencing intolerable suffering which only the taking of its life can relieve. As a very close and treasured friend of mine, a quintessential "dog person" who has been through this agonizing situation can attest, it does sadly happen in real life. California law, as codified in Business and Professions Code Section 4827 (d), provides for a method of humane euthanasia which may be practiced by certain people other than licensed veterinarians: "(d) Administering sodium pentobarbital for euthanasia of sick, injured, homeless, or unwanted pets or animals without the presence of a veterinarian when the person is the employee of an animal control shelter and its agencies or humane society and has received proper training in the administration of sodium pentobarbital for these purposes." Whatever one thinks of the rather broad scope of reasons for animal "euthanasia" set out in this statute, the logic of choosing sodium pentobarbital, an intermediate or long-acting barbiturate, is clear. Such a drug, properly injected, cannot itself cause pain: rather, within seconds, it will depress central nervous system activity to the point of unconsciousness, and then soon thereafter to the point where respiration and effective circulation are lost, causing death within a few minutes. The process, however tragic, is generally described by the friends of the companion animals so euthanized as peaceful, dignified, and over rather quickly. As Professor Ty Alper, Associate Director of the Death Penalty Clinic at the University of California, Berkeley, School of Law has very extensively documented, this statute and others like it enacted by a large majority of the States reflect both the simplicity and efficacy of administering sodium pentobarbital, and the known aggravated suffering inflicted or risked by other drugs such as paralytic agents. Thus see "Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia," 35 Fordham Urban Law Journal 817 (2008), available at . With a human prisoner, a "safe" and "rational" version of OP 770 might prescribe an injection of 5000 milligrams (mg) of sodium pentobarbital, which similarly would cause rapid and painless loss of consciousness followed rapidly by the cessation of effective respiration and circulatory collapse. To allow for any possible hitch with the first injection, a second dose of 5000 mg would be ready for administration if necessary. Optionally the prisoner might choose to be "pre-medicated" with a tranquilizer such as diazepam (marketed as Valium) to reduce anxiety and possibly to make the dose of sodium pentobarbital more quickly effective, since the subject's level of stress may influence response to barbiturates. However, at a dose such as 5000 mg, the onset of unconsciousness and circulatory collapse would be very rapid regardless of such factors. Although sodium pentobarbital would be the drug of choice, as reflected in Business and Professions Code Section 4827 (d), California's current choice of sodium thiopental (also known as sodium pentothal) would also do in an a pinch at the same dose of 5000 mg, with another dose of equal size prepared for use if needed in the event of a hitch. If the CDCR would like to "tweak" OP 770 so as to eliminate the risk of a lethal injection execution "unnecessarily torturous to the victim" without introducing a new drug such as sodium pentobarbital, then such a protocol with sodium thiopental as the lethal agent would be a logical choice. For a detailed discussion, see Mark Dershwitz and Thomas K. Henthom, "The Pharmacokinetics and Pharmacodynamics of Thiopental as Used in Lethal Injection," 35 Fordham Urban Law Journal 931, 955-956 (2008), available at . Sodium pentobarbital and sodium thiopental differ in their pharmocology in a way significant for therapeutic applications but less so for lethal injection executions. The former, as an intermediate- or long-term barbiturate, has a comparatively slower onset but longer duration than the latter. Thiopental, as an "ultrashort-acting" barbiturate, has traditionally been preferred for surgical procedures where only a brief period of general anesthesia is required, after which the patience can recover quickly; or as a drug used quickly to induce anesthesia then maintained by other agents. In a lethal injection context where a massive overdose is administered, however, the "ultrashort-acting" thiopental takes on longer-acting qualities, fatally depressing respiration and circulation for far longer than required to kill the prisoner. Similarly, although sodium pentobarbital has a comparatively longer onset time, at a lethal dose such as 5000 mg it nevertheless causes rapid unconsciousness and death much like thiopental. The ability of a massive overdose to give thiopental the quality of duration and pentobarbital the quality of speed may perhaps illustrate a saying of Vladimir Ilyich Lenin, a noted proponent and administrator of the death penalty despite the protest of early Soviet dissidents such as Julius Martov: "Quantity has a quality all its own." The upshot, in short, is that the CDCR has the ready means to make OP 770 a protocol for a physically painless death by choosing either sodium thiopental (already included in previous protocols) or the veterinary choice of sodium pentobarbital as the lethal agent. From a medical perspective, as Dershwitz (a frequent advisor and expert witness for states designing these protocols) and Henthom sum up, 35 Fordham Urban Law Journal 931, 956: "The primary advantage of a protocol in which a large dose of thiopental is given by itself is that there is no risk whatsoever of the inmate experiencing pain or suffering due to the effects of pancuronium or potassium chloride." Similarly, from a legal and philosophical perspective, Robert Blecker, "Killing Them Softly: Meditations on a Painful Punishment of Death," 35 Fordham Urban Law Journal 969, 993, notes that using a massive overdose of one of these barbiturates would virtually eliminate the risk of pain: "If the U.S. Supreme Court someday outlaws pancuronium and potassium, then simply killing by a massive dose of lethal anesthetic would truly liberate physical pain from punishment." Although Blecker speaks in terms of a possible future constitutional standard under the Eighth Amendment prohibition of "cruel and unusual punishment," the CDCR can achieve the same result simply by revising OP 770 to make sodium pentobarbital or thiopental in a 5000 mg dose the lethal agent. Dershwitz and Henthom note one change in the procedure for declaring death that would expedite the conclusion of an execution. While sodium thiopental or pentobarbital would generally cause death, defined as "the absence of a heartbeat or evidence of circulation," within a few minutes, some residual electrical activity on an electrocardiograph (ECG or EKG) monitor might well persist for "a half hour or longer," 35 Fordham Urban Law Journal at 956. The solution urged by these physicians is for a qualified prison staff person such as a medical technician to declare death based on the demonstrated absence of heartbeat or circulation, id. at 996. Borrowing some elements a practice reportedly followed in North Carolina, the staff person could make two examinations with a stethoscope documenting absence of circulation over a period of at least five minutes, generally deemed sufficient to result in irreversible neurological consequences leading to brain death. (While heroic state-of-the-art techniques of cerebral resusciation may today sometimes extend the window of neurological survivability beyond the traditionally assumed five minutes or so, such techniques would hardly be relevant to the execution chamber as opposed to a critical care center -- except possibly if a stay is received after a lethal injection procedure has commenced.) Thus revising OP 770 to eliminate almost all risk of pain during the lethal injection is hardly rocket science: and removing the superfluous use of pancuronium bromide and potassium chloride from the protocol would mean that the executioners have fewer drugs, syringes, and steps to keep track of in an acutely stressful procedure. As is suggested by Business and Professions Code Section 4827 (d), euthanasia by a massive barbiturate overdose has the advantage that it is a simple procedure which can be practiced competently by people with minimal medical training or skills. Given the critical and many of us would say intolerable ethical conflicts resulting from any attempt to seek participation by anesthesiologists or nurse anesthetists, who in any event should logically prefer the same choice of a massive barbiturate overdose, writing a new OP 770 should at least in this respect be a straightforward task. Yet the proposed CDCR protocol continues to include pancuronium bromide with its potential for "chemical waterboarding" (i.e. conscious paralysis including the diaphragm and resulting in the equivalent of slow strangulation), and potassium chloride with its potential for an excruciating burning sensation spreading from the injection site through the prisoner's veins and then to the area of the heart before cardiac arrest and death intervene to end the torture. Why would rational regulators, in the CDCR or elsewhere, retain a more complicated and intricate procedure with a torturous potential which would easily be eliminated using the veterinary euthanasia model? Two answers present themselves, the first focusing on a failure of the regulators to recognize or fully appreciate the reckless nature of such a choice if made knowingly; and the second on a very ugly motivation which one trusts no public servant in California would entertain knowingly, but which Blecker has dared to air publicly, thus doing a service by revealing the potential for evil which lurks within us all, and can sometimes, regretfully, be realized by inertia as well as by purposeful action. ------------------------------------------------------------ 2.2. Reckless inertia: A three-ring pharmacological circus ------------------------------------------------------------ Injecting 5000 mg of sodium pentobarbital or thiopental seems a simple enough procedure. Why add pancuronium bromide and potassium chloride, when the barbiturate is already lethal? It is true that pancuronium would independently kill the prisoner by paralyzing all voluntary muscles including the respiratory ones, while potassium chloride would independently stop the heart: but the death process with the barbiturate alone does all of these things, typically within a few minutes as can be documented with a stethoscopic examination. This kind of pharmacological overkill reminds one of discussions about cataclysmic nuclear war between the superpowers during the Cold War: how meaningful is it to speak of the ability to destroy the opponent's national capital five or ten times over, or "to make the rubble bounce." Is the choreographed killing of a state prisoner, an ultimate drama in the performance art of sheer power, made yet more consuming by killing three times over? The problem, however, is not merely that pancuronium bromide and potassium chloride are unnecessary. If, like sodium pentobarbital or thiopental, they were lethal but painless drugs, then one could argue that the additional complexity of the protocol was simply a matter of redundancy, like wearing the proverbial belt plus suspenders. Rather, as is well known, both drugs have a torturous potential. If it is not necessary to use them, then it is necessary not to use them, assuming that the purpose of the CDCR is to avoid rather than introduce the risk of pain. Both of these additional drugs, one should add, do have legitimate and necessary uses in a therapeutic setting. The paralyzing effect of pancuronium bromide or Pavulon may be needed to immobilize muscles during surgery; to prevent respiratory movements that might distract the surgeon; or, for certain patients, to check muscular action that interferes with mechanical ventilation. Because the state of total paralysis induced by this drug is known to cause extreme psychological distress or terror when experienced consciously even by a patient with full respiratory support, adequate anesthesia is mandatory. Likewise, potassium chloride may be used in smaller oral or intravenous doses as therapy for hypokalemia (low potassium level, caused for example by some diuretics); and in massive doses to stop the heart as a preparation for cardiac surgery, with circulation and perfusion of vital organs including the brain maintained artificially. These therapeutic and surgical applications require qualified anesthesiologists or nurse anesthetists, plus the monitoring of anesthetic depth using state-of-the-art techniques at least sometimes including the Bispectral Index (BIS) monitor analyzing the patient's brainwaves and using computer algorithms to estimate the patient's level of consciousness from 0 (no measureable brain activity, electrical silence) to 100 (a fully awake and alert state). In a surgical setting, there are two vital considerations: to maintain a level of sedation or unconsciousness sufficient to prevent pain, awareness (e.g. of the surgical procedure itself, or the paralysis resulting from pancuronium), or later traumatic recall; and also to avoid overmedication, which at best may delay the patient's postsurgical recovery from anesthesia and at worse may place in jeopardy the patient's health or life. In a lethal injection execution, however, maintaining the patient's vital signs during the procedure or avoiding excessive anesthetic depth is clearly not a consideration: the purpose is to end the official victim's life, not to sustain it. As long as a massive overdose of a barbiturate is the drug in use, the risk of pain is equally irrelevant: the task is simply to deliver the full dose, supplemented by another if a hitch somehow occurs, and then to confirm and declare death. The current draft of OP 770, however, transforms this simple situation (however otherwise morally questionable or intolerable because of the act of killing itself!) into a pharmacological three-ring circus performed without benefit of a safety net, and unwittingly or otherwise risking a torturous outcome for no good reason. "An execution is not surgery," we often hear. Yet two extraneous drugs are introduced so as indeed to make it the equivalent of surgery in terms of the required skills and precautions to minimize the possibility of pain which need never have been introduced! While, unlike in surgery, maintenance of vital signs is still not a consideration, adequate depth of anesthesia to avoid torture from pancuronium and potassium chloride has now become an imperative. Either one calls in medical professionals who should not and cannot participate in an execution if they obey their own professional standards; or one has correctional professionals reduced not only to needless killing, but to a homicidal ritual in which they effectively practice medicine without the credentials or technical means to do so responsibly. What rational basis could there be to introduce such a risk? Some unconvincing rationales are presented in a 2007 study, State of California, Department of Corrections and Rehabilitation, _Lethal Injection Protocol Review_ (May 15, 2007), at p. 19: "A one-chemical protocol was considered. Five grams of sodium thiopental would be expected to cause death. The use of one chemical, sodium thiopental, has the advantages of being simpler to administer and virtually eliminates the potential for pain. However, the use of one chemical also has disadvantages. Since no other jurisdiction currently uses only one chemical, the protocol remains untested. The use of a barbiturate would likely result in involuntary muscle movements, with unpredictable consequences. Finally, the execution may take an extended period of time." At least if one considers the risk of torturous suffering during a lethal injection execution well worth avoiding, the alleged "disadvantages" cannot withstand a critical examination: * The alternative to adopting a new and thus "untested" protocol -- if one is going to continue with executions involving active killing, that is -- is blindly to follow riskier procedures in a kind of Catch-22 behavioral sink which cannot be escaped. In fact, the "one-chemical" protocol, as Ty Alper documents, has been tested countless times in California and elsewhere in its use for animal euthanasia; and expert physicians such as Dershwitz and Henthom have recommended or approved it for lethal injection executions of humans. * "Involuntary muscle movements" happen in some executions using pancuronium bromide and potassium chloride, whether because of a hitch in administering these drugs, or because pancuronium reduces but does not eliminate muscle responses to potassium chloride. The prisoner is, in any event, securely strapped to a gurney or similar structure and restrained, so that any such movements cannot disrupt the process. As in animal euthanasia, or normal end-of-life care for humans approaching natural death, it may be helpful to explain to family members or others present that such movements may occur but do not indicate the experience of pain or distress. * The full electrical silence of the heart as measured by EKG may indeed be delayed; declaration of death based on a stethoscopic examination showing absence of a heartbeat, or possibly two such examinations over a period of five or more minutes to confirm irreversible neurological consequences leading to brain death, is a strategy recommended by Dershwitz and Henthom for expediting the conclusion of the execution. While "involuntary muscle movements" may occur in any execution, as they do in the natural process of dying, the use of pancuronium bromide and potassium chloride opens up possibilities for torturous pain and suffering that would otherwise be absent, as the 2007 CDCR report itself candidly acknowledges. California citizens aware of the very recent history "torture memos" and secret CIA prisons at the federal level of government should be all the more determined to demand that public servants of the CDCR and other state agencies avoid rather than hazard similar enormities in the name of "justice"! These risks are not hypothetical: executions where hitches have arisen, as notably with Joseph Clark in Ohio (May 2, 2006) and Angel Diaz in Florida (December 13, 2006), reveal the clear and present danger of a torturous execution. While hitches or "botches" can occur with either a rational barbiturate-based protocol or a three-ring pharmacological circus of the kind used for these two executions and retained in the new CDCR proposal, the consequences differ dramatically. With the barbiturate-based protocol, at worse, there may be local pain near the injection site if sodium pentobarbital or thiopental intended for a vein has infiltrated outside it; and continued consciousness for the prisoner rather than prompt anesthesia. Administering a second 5000 mg dose should "fix" the situation, if one can speak of "repairing" the process of a homicide against a human being, however culpable, unable to resist. With the three-drug circus, conscious paralysis and asphyxia from the pancuronium, followed by excruciating and torturous pain from conscious experience of the searing potassium chloride, are foreseeable consequences. Given the known and documented risks of executioner error, a prudent policy would be at least to reduce the possible harm by avoiding pancuronium and potassium chloride. To do otherwise, in view of the documented history of hitches encountered at lethal injection executions, is to run a known or advertant, and thus reckless, risk of inflicting torture, without any rational benefit to outweigh this risk -- unlike in therapeutic settings where the clinical benefits of pancuronium bromide or potassium chloride, given the supervision of qualified medical personnel, do outweigh the risks (as in the treatment of hypokalemia, the immobilization of muscles during delicate surgery, or the stopping of the heart as a prelude to cardiac surgery). In the setting of a lethal injection execution where such medical benefits are irrelevant, to insist on using these superfluous drugs is rather like for an auto mechanic, not trained in the use of explosives, to finish a repair by placing a bomb in a vehicle's engine which will detonate if the repair fails. "Since I'm confident that my repair procedure should have succeeded, the miniscule risk of a detonation is not worth worrying about" -- even though this same mechanic has a known history of failures; other bombs have gone off in similar circumstances (e.g. the Clark and Diaz executions); and simply omitting the bomb would reduce this risk to zero. It is then proposed that a local member of the police Bomb Squad or an explosives expert should be on hand to cope with the consequences if the bomb does go off. This proposal is rejected, however, because of a conflict in professional ethics: "A Bomb Squad member, who is committed to preventing or defusing bomb threats whenever it is possible to do so, should not participate in activities raising precisely such threats." Or, imagine playing Russian roulette -- an irrational and reckless pursuit even if the revolver had a million chambers and only one bullet, since there is no rational benefit in return for the tragic and senseless risk of a suicidal outcome, however small. The CDCR should not be playing such games which flirt with the specter of institutionalized torture. If we must, if only as a thought-experiment, "rationally" plan out the homicide of a defenseless victim, then let us consider the kind of Russian roulette that the "three-drug" approach indulges in: * With a massive overdose of sodium pentobarbital or thiopental only, if the administration succeeds, the prisoner will be dead within a few minutes without any risk of pain, as can be ascertained by stethoscopic examination to confirm absence of a pulse. * With the "three-drug" protocol, if the sodium thiopental administration succeeds, then the additional two drugs will do no harm to a prisoner already deeply unconscious and approaching death, and a flatline EKG confirming death without benefit of the traditional stethoscope may save an execution team member a few steps back and forth to make hands-on examinations confirming loss of heartbeat and circulation. In short, if the barbiturate is correctly administered, no other drugs are needed; if it isn't, the other drugs spell torture. In 2009, such a protocol is by Orwellian standards a quarter century behind its times -- in other words, more appropriate for the Ministry of Love in _1984_ than for the CDCR or any California state agency in the 21st century. ---------------------------------------------------------------- 2.3. The Blecker scenario: Wanton endangerment as state policy ---------------------------------------------------------------- The May 15, 2007 report of the CDCR on _Lethal Injection Protocol Review_ recognizes the painlessness of a one-barbiturate protocol as an advantage, and unpersuasively lists "disadvantages" that might favor a riskier procedure despite, not because of, the added risks of pain. One can vigorously disagree with the result reached in this report while understanding that the process of risk assessment and balancing is itself part of the human condition. We drive or ride in cars, cross streets, travel by air, and move around our own residences despite the fact that all of these activities involve a risk of death or injury. When doing these things diligently and attentively, or even negligently, we do not normally have any motive to suffer harm or inflict it on others, even when an impartial observer might caution us that such an unintended outcome is likely enough to make our action unwise. Indeed, even a criminal and possibly homicidal offender such as a drunk driver may be taking a reckless risk _in spite of_, not because of, the possibility of death or injury to self or others. The physical consequences would be no less horrible, but no pleasure is taken in the risk itself: "I hope that I can drive as slowly and carefully as possible and get home safely." Seeking out a designated driver or taxi would be the sober alternative: but no harm is meant, however fateful the harm that might result. Similarly, OP 770 is being driven under the influence of institutional inertia in a reckless but not deliberately wanton manner: CDCR decisionmakers may be taking gratuitous risks, but they are not doing so because they enjoy the idea that a condemned prisoner might receive insufficient anesthesia and then consciously experience a torturous administration of pancuronium and potassium chloride. They may be making a needless and objectively irresponsible bet: but it is a bet that the three-drug procedure will smoothly succeed and result in a painless execution, not that the procedure might fail in torturous fashion. There are others, however, who take a stance correctly concluding that pancuronium and potassium could easily be eliminated if a painless execution is indeed our goal -- but suggesting that these two drugs may serve a desirable purpose precisely _because_ of the possibility of a "botch." It would be pleasant to assume that such people exist only in science fiction scenarios on the Internet, but Robert Blecker seems to be a living example. Having pointed out that executions using a massive barbiturate overdose only would eliminate the element of physical pain, Blecker suggests that the two additional drugs might be desirable as a kind of lottery in which a botch could represent the winning ticket, see "Killing Them Softly..." (cited Section 2.1 above), 35 Fordham Urban Law Journal 969, 995-996. Having described an atrocious murder in which the victim was also sexually assaulted, he writes: "If lethal injection works as designed, [the condemned prisoner] will die painlessly. If the executioners botch it, this sadistic rapist murderer may feel intense pain and burning as the paralytic agent courses through his veins. He will suffer excruciating pain for a couple of minutes, until the potassium stops his heart and kills him." ".... Intuitively and emotionally, we feel certain we have the right, if not the responsibility to painfully punish monsters..., because they deserve it." ".... If [the prisoner] acted with such callous disregard, depraved indifference to his helpless victim's excruciating pain, what poetic justice, at least to risk inflicting a painful death with a `botched' execution, displaying our own deliberate indifference." Professor Blecker speaks for himself, a right enshrined in our First Amendment and also protected by the principles of academic freedom. His chilling words, however, raise the question of whether, at some subconscious level, the three-drug protocol still proposed in the latest draft of OP 770 may cater to such malevolent fantasies of what he prefers to call "a quick and painful death," and some of us would call, like waterboarding, simply torture. As it happens, Blecker may be as mistaken in the above passages about the effects of pancuronium bromide as he is, at least to my view, in his moral conclusions. This "paralytic agent," rather than causing "intense pain and burning," causes respiratory collapse and slow suffocation somewhat analogous to that involved in waterboarding -- with the following potassium chloride, of course, having precisely the burning effect that he describes. Blecker, ever a teller of the unvarnished truth as he sees it, makes from my perspective what is a powerful case against any form of active execution. If compassion moves you to seek to kill a subdued prisoner as humanely and painlessly as possible, why kill at all? Either we should sentence the person to life imprisonment without parole (LWOP), or we should use a form of execution which will symbolically reflect a community judgment that the person "deserves to die" without inflicting on ourselves, and more specifically on our dedicated correctional officers and wardens, the cruel and unusual punishment of killing by decree. --------------------------------------------------------- 2.4. The missing BIS monitor: checking anesthetic depth --------------------------------------------------------- One proposal raised in some litigation, but which will not be raised here, is that an anesthesiologist or nurse anesthetist should participate in an execution using the three-drug protocol to help avert or cope with any hitch that might arise. Asking medical professionals to behave unethically in order to limit the gratuitous risks of an irrational protocol is not sound public policy. However, one might ask: "If inadquately trained people are going to use two potentially torturous drugs with medical applications irrelevant to a lethal injection execution, why not at least use a device to monitor brain functioning and confirm that the sodium thiopental has brought the prisoner to a deep level of unconsciousness before proceeding with the superfluous drugs?" North Carolina has done just this, using a BIS monitor to confirm that the thiopental has had full anesthetic effect before administering the remaining drugs. While the solution is imperfect, and simply letting the thiopental continue to its fatal conclusion of respiratory and circulatory collapse would make the added drugs and the monitor alike unnecessary, the failure of the proposed OP 770 to provide for such a device is yet another flirtation, however unintended, with torture. The "consciousness check" included in this protocol is an inadequate substitute for the North Carolina procedure. Despite my enthusiasm for innovative technology, and my special admiration for Aspect Medical Systems and its BIS monitor which, in the hands of appropriately trained physicians and nurses, can indeed serve as one valuable index of anesthetic depth to avoid patient pain and traumatic awareness during surgery and overmedication alike, I must emphasize along with the people at Aspect Medical Systems that the use of a lifesaving and life-enhancing technology for the purpose of killing presents its own ethical problems. Laudibly, Aspect Medical Systems will not knowingly sell a BIS monitor for such purposes, although it can hardly police how its products are used, much less to whom they are resold (sometimes as used items via the Internet). However, momentarily putting aside such ethical considerations and focusing only on the idea of an execution using the irrational three-drug protocol and seeking to minimize the risk of pain, North Carolina's use of the BIS monitor may at least provide a degree of confirmation that a prisoner to whom sodium thiopental has been administered is not only unconscious, but at a deep enough level of unconsciousness, known as a "deep surgical plane of anesthesia," so as not to be at risk of arousal from the suffocating effect of the pancuronium, or what would be the exquisite torture of the following potassium chloride. It has been said that being conscious or unconscious is like being pregnant or not: there is no middle ground. However, just as the first trimester of pregnancy is in many ways different from the third trimester, so there are indeed degrees of unconsciousness if the issue is the risk of arousability when a noxious stimulus -- respiratory paralysis, or the action of potassium chloride on the veins and on involuntary muscle activity, including that of the heart -- is applied. As one guide to such distinctions, the BIS monitor analyzes the frequency and amplitude patterns of brainwaves and uses a computer algorithm to derive a single number reflecting the level of consciousness or potential for arousal -- with the probability of arousal depending on the intensity or noxiousness of a given stimulus, for example in the course of surgery. The literature of Aspect Medical Systems itself, and commentaries by medical experts, give some idea of the BIS scale. A reading of 90-100 would indicate an awake and fully aware patient. Around 70-80 might indicate mild sedation. The range from 40 to 60 would be a typical region for many types of surgery. Somewhere around 20-40 we reach the region of "burst suppression" where brain activity is more profoundly depressed, a region which some physicians such as Henthom urge should be reached before the administration of pancuronium bromide and potassium chloride in a lethal injection execution -- if one uses these chemicals at all. Thus see Dershwitz and Henthorn, "The Pharmacokinetics and Pharmodynamics of Thiopental..." (cited Section 2.1 above), 35 Fordham Urban Law Journal 931, 950-951. Id. at 951, it is suggested that a BIS reading of 40-60, evidently somewhat higher than the deeper "burst suppression" region below 40 that one encountered elsewhere in the literature, may be sufficient to minimize the risk of awareness or arousal. In fact, determining a person's degree or plane of anesthesia is a task for appropriately trained professionals using a variety of observations and indexes, not merely this BIS monitor in isolation. Clinical trials in which the monitor sometimes, but not always, results in a significant reduction of unwanted patient awareness or discomfort by comparison to a control group where clinicians rely only on other signs and techniques of testing anesthetic depth, may indicate both the benefits of the monitor and the hazards of using its single number as a substitute for other measures rather than a valuable tool to complement them. Aspect Medical Systems itself, addressing healers rather than executioners, cautions that this instrument must be used as one tool in a full spectrum of assessment techniques, and only in trained hands. However, again putting aside for the moment the small matter of ethics, even in less specialized hands the BIS monitor may have a certain utility when the issue is not maintaining a delicate balance between inadequate and excessive anesthesia in an operating room, but simply confirming that a massive overdose of barbiturates has taken effect before proceeding to administer two superfluous drugs. As Dershwitz and Henthom write, id. at 956: "North Carolina has utilized the BIS monitor in several executions. The monitor is viewed by a nurse. The executioner pauses after the administration of thiopental (3000 mg in this state) and awaits a signal from the nurse before giving the pancuronium and potassium chloride. In each execution in which it has been used, the BIS value was 0-10 _before_ the thiopental administration was complete." (Emphasis in original) A range of 0-10 would represent a deep coma or the like, approaching or reaching an isoelectric or "flatline" state where the brain is electrically silent. Although such electrical silence over a period of time has historically been one well-known measure used along with others in determining brain death (for example in the famous Harvard Criteria of 1968), an isoelectric EEG may also occur in various situations where loss of brain function is not irreversible, with depression of neurological activity by barbiturates or hypothermia (extreme cold) as two such situations. In the setting of a lethal injection execution, although brain death has not yet occurred (this will result or become inevitable minutes later from the failure of respiration and circulation, with or without the intervention of the other two drugs), Dershwitz and Henthom describe a very deep plane of anesthesia where the extra drugs should cause no suffering. From a certain perspective, this procedure is like picking up a gun to play Russian roulette, but first using state-of-the-art technology to x-ray or otherwise scientifically examine the relevant chamber and confirm that no bullet is actually present. It would be simpler not to have picked up the gun in the first place, but assuming that the device has been properly activated and its reading is valid, this game is preferable to one without the benefit of the device. As Dershwitz testified in the case of _Jackson v. Danberg_ (United States District Court, District of Delaware, Docket No. 06-CV-300), September 10, 2007, pp. 223-224, the BIS monitor may at least to a degree compensate for the limited training of execution participants who have some medical background but are not specialists in the art and science of anesthesia: "You just read the number off the screen. "Further, in the context of what's going on, if the BIS number starts out between 90 and a hundred, and then in a time frame that is concurrent with the administration of thiopental drops to single digits, there is no other plausible explanation for what's going on." In this scenario, the initial reading of 90-100 before the start of the lethal injection procedure would indicate normal waking consciousness, while the rapid decline to "single digits" -- which Dershwitz and Henthom, as quoted above, report is what has actually happened in North Carolina executions monitored with BIS -- would indicate burst suppression and indeed the total or near-total suppression of the brain's electrical activity. Again, putting aside the ethical issues raised by killing a subdued prisoner, using two superfluous drugs in the process, and monitoring the proceedings with a device meant to save and better rather than to take human lives, one wonders why the CDCR would choose to keep the three-drug protocol and yet not use this device, which would at least provide an objective index that deep anesthesia had been attained before the administration of the remaining drugs. The BIS number could be displayed for media and other witnesses, and cited as evidence for a painless execution, even if an imperfect and incomplete measurement of anesthetic depth by operating room standards. Instead, the CDCR proposes a "consciousness assessment," see Section 3349.4.5 (g) (5) (A), describing an assessment to be made after the administration of the first 1500 mg (1.5 grams) of thiopental, and repeated after a second syringe with 1500 mg has been administered : "[T]he Intravenous Sub-Team Member shall brush the back of her/his hand over the inmate's eyelashes, and speak to and gently shake the inmate. Observations shall be documented. If the inmate is unresponsive, it will demonstrate that the inmate is unconscious." Then comes the assessment after the second syringe of thiopental, see Section 3349.4.5 (g) (5): "50 cc saline flush shall be administered, followed by another assessment of consciousness as outlined above. Observations shall be documented. At this point if the inmate is determined to be unconscious, the Warden shall authorize the lethal injection process to proceed...." Such a "consciousness assessment" could indeed be valuable in many emergency or first responder situations, but it does not test for _depth of unconsciousness_ or burst suppression, and thus leaves open the scenario of a flawed administration of thiopental sufficient to satisfy the "consciousness check" but leaving open the possibility of arousal and suffering from the extremely noxious stimuli of the suffocating pancuronium and searing potassium chloride. Compared to such an inadequate "reassurance," Dershwitz's account of the BIS as used in North Carolina seems the height of enlightenment and scientific progress, although Aspect Medical Systems and others with a sense of medical ethics will quickly correct any such misapprehension. Using a BIS monitor as a tool for killing people does no credit to this wonderful technology or its inventors and those who make it available to save lives; and injecting people with gratuitous and potentially torturous drugs without either an opinion from a trained anesthesist or an objective (if imperfect and incomplete) BIS monitor reading is yet worse. ----------------------------------------------------- 2.5. Lessons learned so far: How not to do executions ----------------------------------------------------- At a famous and productive meeting, Ronald Reagan and Mikhail Gorbachev both quoted a famous Russian proverb in connection with the arms control issues they were addressing so productively: "Believe and verify." Believing that the CDCR means well, one must verify that its proposals are consistent in theory and practice with its good intentions -- and speak up loud and clear if they are not. We have seen so far that it is wrong, when killing subdued prisoners, to use two superfluous drugs which serve mainly at once to complicate the procedure and to introduce a risk of torturous suffering otherwise absent. It is wrong to introduce such a risk for such declared purposes as avoiding involuntary muscle movements by a securely restrained prisoner that can do no harm, and that may occur even with three-drug protocol; or to reduce the average time for an execution by a few minutes while avoiding the not-so-onerous task of determining the prisoner's death by stethoscope rather than remote EKG. It would be wrong, even if feasible, to involve healing professionals such as anesthesiologists or nurse anethesists in a ritual state killing, or to use a BIS monitor in such a setting; but yet more wrong to inject potentially torturous drugs without such safeguards, relying instead on an inadequate "assessment of consciousness" which does not measure the plane of anesthesia or confirm burst suppression. The simple solution: eliminate the two superfluous drugs! If this is not done, people will rightly ask why sheer institutional inertia trumps rationality and common sense. We will also point out the kind of subconscious motivations to which such a policy appeals, however unintentionally on the part of CDCR, as frankly stated by Robert Blecker. From another perspective, although "fixing" OP 770 by using a massive overdose of sodium pentobarbital (or, in a pinch, thiopental) on the order of 5000 mg would meet the usual criteria for "humane and painless" execution, it would hardly be the method of execution which best satisfies Warden Ornoski's criterion for success, which is simply that "the inmate ends up dead at the end of the process." Let us consider the imperfections that remain in this "fix." At one level, certain technical problems and complications would remain, although in a procedure wisely shorn of an arbitrary, irrational, and unpredictable potential for a physically torturous outcome. Difficulties might still arise with certain prisoners in locating a suitable vein and reliably obtaining intravenous access, one known cause of a prolonged execution process, as with former gang leader and internationally acclaimed anti-gang activist and peace advocate Stanley "Tookie" Williams, executed on December 13, 2005. As an enlightened reading of Ornoski's Criterion, as I shall call it in honor of the former Warden, suggests, a prolonged execution process is in itself no problem, as long as the prisoner "ends up dead" at its conclusion. Rather, the problem is with what is happening while the prisoner waits out the process of seeking out and finding a suitable vein: the anticipation, with lethal injection, of a death which in a real sense remains violent, even if physically painless. As Timothy Kaufman-Osborn has pointed out in _Perfect Execution: Abolitionism and the Paradox of Lethal Injection_, Center for the Study of Law and Society Jurisprudence and Social Policy Program, JSP/Center for the Study of Law and Society Faculty Working Papers, Paper 65 (2008), , changes in execution methods over the last two centuries have sought as much as possible to avoid pain or mutilation and reduce the penalty to the "mere extinguishment of life." This phrase, interestingly, occurs in one of the few decisions of the United States Supreme Court addressing methods of execution: _In Re Kemmler_ (1890) 436, 447, upholding the constitutionality of New York's impending first use of its new method of "electrical execution," or electrocution as it soon came to be called. Although the Court did not direct the method's acceptability under the Eighth Amendment Cruel and Unusual Punishment Clause, not held applicable to the States until 1962, it did apply the Fourteenth Amendment and found that electrical execution passed muster under a substantially similar test: the method had been adopted after extensive study as a modern and more humane substitute for hanging, and could reasonably be expected to reduce the punishment to the "mere extinguishment of life." The change from hanging to electrocution or, starting in 1921 with Nevada, in some states including California (1937) to lethal gas, and then starting in 1977 with Oklahoma to lethal injection, reflects this desire to minimize both the prisoner's suffering and the element of violence or disfigurement involved in the "extinguishment of life." However, as Kaufman-Osburn writes in his paper, at 12, this quest for the "perfect" execution "can never quite be realized." "It can never be perfectly realized, that is, so long as those condemned to die remain beings whose recalcitrant bodies resist extermination and so require violence, no matter how well sterilized and/or concealed, in order to kill them." This reality, that an active execution involves a certain element of biological violence, as it were, even if the prisoner is under deep anesthesia and experiences no pain or discomfort, may be one of the reasons for concern about "involuntary muscle movements" as a supposed justification for pancuronium bromide in an execution protocol as opposed to a surgical theater where such movements could indeed place the patient at hazard as the surgeon skillfully wields her or his instruments. Indeed, the phenomenon at issue from a physiological point of view is not unique to active executions, but also applies to natural death at the conclusion of a passive execution (to be described in the following section) or, of course, occuring as it typically does quite apart from any judicial sentence. In even the most peaceful death, there is an "agonal" phase, literally an _agon_, a "contest" or "struggle," in which the dying process confronts and overcomes, so to speak, the body's mechanisms for maintaining vital equilibrium. Critical care providers have thus cautioned against the use of pancuronium bromide or similar neuromuscular blockers, which paralyze voluntary muscle action, in order to avoid or conceal the involunary respiratory or other movements that may occur, possibly suggesting pain or distress although the dying patient is at peace and experiencing no suffering. Good end-of-life care means sensitively explaining to family members or others present that such events are one aspect of the natural dying process, but that care providers are monitoring this process and ensuring the patient's comfort, as in fact they could not do if a paralytic drug masked the signs and signals of pain or distress on which they rely in their compassionate task. One might argue that from this physiological standpoint, a lethal injection by a simple barbiturate overdose is no more "violent" than the agonal process of collapse that also occurs in natural death. From a human rights perspective, the tangible violence that remains even in such an execution occurs at a psychological level. Sister Helen Prejean may have expressed it as well as anyone in her book _Dead Man Walking_ (New York: Random House, 1993), 217. While she describes the three-drug protocol, her insights would apply equally to a one-drug protocol eliminating the risk of physical torture not so generally recognized when she wrote some 15 years ago: "The method is preferred because it virtually eliminates visible, bodily pain. There is only the `uncomfortableness' of a needle prick into a vein. There remains, however, one dimension of suffering that can never be eliminated when death is imposed on a conscious human being: the horror of being put to death against your will and the agony of anticipation. As if, when they strap you down on the gurney, your arms outstretched, waiting for the silent deadly fluid to flow -- the sodium pentothal, which comes first to make you unconscious so you do not feel the pancuronium bromide when it paralyzes your diaphragm and stops your breathing and the potassium chloride which causes cardiac arrest and stops your heart -- as if you feel the terror of death any less because chemicals are being used to kill you instead of electricity or bullets or rope?" If a saner version of OP 770 is adopted, this could be rewritten to say "the sodium pentothal or pentobarbital, which first makes you unconscious and then depresses your nervous system to the point where your lungs and heart stop..." The "horror," "agony," and "terror" addressed by Sister Helen result not from fear of a possible "botch," but from anticipation that the procedure will go precisely as designed. Expressing a similar viewpoint, Amnesty International describes an execution -- more specifically, we should say, an execution involving active killing -- as, "[like] torture," an "extreme physical and mental assault on an individual," duly emphasizing "the psychological suffering caused by foreknowledge of death at the hands of the state." See "Death Penalty Q & A," . This element of "mental assault" is brought home by the practice of mock executions used by governments and terrorist groups where a prisoner is led through an execution ritual persuaded that her or his death (or sometimes the death of a family member or comrade) is immiment, although no act of killing actually takes place. Mock executions are regarded as a form of psychological torture which can be as devastating as many forms of physical abuse. The real thing, an actual execution, must likewise be viewed as "cruel treatment," as Amnesty International calls it. To speak of an "extreme physical... assault" for a procedure as evidently "gentle" and "painless" as lethal injection by a barbiturate overdose, without other drugs posing the risk of torturous pain, may seem hyperbole at best. Yet, apart from the mental suffering, the act of injecting a lethal drug into the body of a person who would wish to live rather than die remains an act of homicide, and therefore indeed an "extreme physical assault." If a private person killed in this way, we would not call it a humane proceeding, although we might consider the defendant's intent to spare the victim any physical pain an important mitigating circumstance: we would call it a criminal homicide. Thus another important lesson learned is that while eliminating pancuronium bromide and potassium chloride would make OP 770 less irrational and inhumane, even the least irrational and least inhumane protocol involving a method of active killing cannot avoid inflicting an intolerable physical invasion and mental assault upon the subdued prisoner in violation of the human rights standards articulated by Amnesty International and Human Rights Watch, the European Union, former President Nelson Mandela and Archbishop Desmond Tutu of South Africa, and the United Nations General Assembly. Having reached this conclusion, we must now consider a yet more important lesson: how to carry out executions the right way in California, which means eliminating all three lethal drugs and making available a method which does not involve active killing: ambient lethal gas. Since the vast majority of Death Row prisoners would likely choose ambient lethal gas, the lethal injection dilemma may rapidly and happily become moot. Identifying the aggravating circumstances in California's previous and currently proposed protocols does not mean condoning the underlying homicide. Let's consider how to do things the right way. -------------------------------------------------------- 3. A humane alternative: Execution by ambient lethal gas -------------------------------------------------------- In designing a truly humane excution protocol, we face two main constraints. The first, Warden Ornoski's Criterion, requires simply that a successful execution be one where "the inmate ends up dead at the end of the process." This leaves an immense scope for innovation and creativity, both qualities prized in our great State of California. The second constraint, however, is much more limiting: California Penal Code Section 3604, the immediately relevant portion of which prescribes a choice of two methods of execution: 3604. (a) The punishment of death shall be inflicted by the administration of a lethal gas or 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. Having seen that the statutory option of lethal injection, while it can be made less irrational and more reliably painless through a revision in OP 770, has the fatal flaw of involving an active killing of the prisoner, we now turn to the alternative: "the administration of a lethal gas." In 1937, moving away from the traditional art of hanging and seeking a more modern and humane method of execution, the Legislature instituted the method of lethal gas administered, as in other jurisdictions adopting this method, in a gas chamber. During the period 1938-1993, the gas chamber was the means for executing 194 people -- 190 men and four women. So implemented, with hydrogen cyanide as the agent causing death, lethal gas was sadly, like the previous method of hanging and the subsequent one of lethal injection enacted as an option in 1993 and first used in 1996, a technology for executing the death penalty which involved active killing. In the first decades of this gas chamber era in California, the technology was often regarded as notably humane both in avoiding or minimizing the prisoner's physical suffering and in avoiding the violent force and disfigurement of the competing methods, gas and electrocution (the latter never used in California). This in Harry Elmer Barnes and Negley K. Teeters, _New Horizons in Criminology_ (Englewood Cliffs, N.J.: Prentice-Hall, 2nd ed., 5th printing, 1955), pp. 350-351. we read: "Lethal gas, used by eight states, is certainly painless. It is a physically pleasant form of meeting death, and humanitarian sentiment would recommend it as a universal method of execution (until capital punishment is abolished). But even this method is revolting to many who are by profession somewhat inured to seeing men die at the hands of the state. THe argument is not that the gas is painful to the condemned men but that the spectacle of gradual expiration is `torture to the spectators.' There is reason to believe, however, that asphyxiation is less brutal than electrocution, and far less than hanging." Having described the gas chamber as providing a "painless" or even "pleasant" death, Barnes and Teeters squarely confront the fatal fate that this execution technology shares with all others involving active killing, id. at 351-352: We have been emphasizing the physical pain accompanying execution. Far worse than this agony is the mental torture experienced for weeks, months, and even years. A condemned person need not give up all hope of reprieve until the last second. In appraising the practice of the state's taking the life of those guilty of capital offenses, this psychological torture must be remembered. Although I am not sure how often the gas chamber was portrayed as "a physically pleasant form of meeting death," during my early years of abolitionist activity starting around 1961 it was certainly portrayed as quick and painless from the prisoner's point of view. In the usual scenario, one would hear the pellets drop, smell the gas, take a few deep breaths, lose consciousness within 10-30 seconds, and without further suffering die in about ten minutes. During the 1980's, however, the widespread assumption that the gas chamber was a "painless" and "humane" way of state-sponsored homicide came increasingly under question. One ultimate result was a constitutional challenge to this method, as implemented at San Quentin, as a "cruel and unusual punishment" under the Eighth Amendment. In _Fierro v. Gomez_ (CA9 1976), 77 F.3d 301, the United States Court of Appeals for the Ninth Circuit affirmed the decision of United States District Court Judge Marilyn Patel, Northern District of California, that California's use of the gas chamber constituted "cruel and unusual punishment" under the Eighth Amendment. Her decision had been based on medical and other evidence that prisoners undergoing execution experienced prolonged consciousness of pain and acute suffering, contrary to the understanding of many death penalty abolitionists and retentionists alike during earlier decades. California responded legislatively by revising the former version of Penal Code Section 3604, which in a version adopted in 1993 had introduced a new option for a prisoner to choose execution by lethal injection, but retained lethal gas as the method to be used unless the prisoner expressly chose lethal injection. The 1996 revision provided for lethal injection as the method that would apply unless a prisoner expressly chose lethal gas. Thus only by her or his own affirmative choice would a condemned prisoner face the gas chamber execution that _Fierro v. Gomez_ had deemed unconstitutional. In view of this statutory change, the United States Supreme Court vacated the Ninth Circuit decision in _Gomez v. Fierro_ (1996), 519 U.S. 918. In _Fierro v. Terhune_ (CA9 1998), 147 F.3d 1158, the Ninth Circuit directed that Judge Patel's decision which it had affirmed in 1996 be vacated, leaving open the question of whether the gas chamber was constitutional or otherwise unless or until a California prisoner elected to be executed by lethal gas, thus making the question again "ripe" for decision. As a response to recent problems and legal challenges to lethal injection, proposals are sometimes offered for returning to the use of the gas chamber with a lethal agent other than cyanide. One such proposal which has received some attention in Internet discussion forums seeks to emulate by design a process which has tragically caused the deaths of unsuspecting workers in the aerospace and other industries: nitrogen asphyxiation. Thus see . If nitrogen, which makes up about 78% of the atmosphere we breathe, becomes concentrated in some space so as to replace or displace the life-sustaining oxygen demanded by humans, then a human victim, without experiencing any awareness of danger or distress, will gradually suffer hypoxia (insufficient oxygen), often pass through a brief period of euphoria, lose consciousness, and die within minutes. Since our sense of respiratory distress is triggered by the buildup of carbon dioxide rather than by hypoxia, an accident victim may be overcome and die without warning. Experienced deliberately under experimental conditions, as in a high-altitude chamber, hypoxia can cause a euphoric form of intoxication where a subject, although briefed on the process and its hazards, becomes quite indifferent to the potentially life-threatening nature of the situation. Such experiments, responsibly supervised by observers who make sure that the subject has oxygen flow restored before life or health is in fact endangered, are sometimes cited to argue how humane a way this would be to carry out the death penalty. One is reminded of the early impression of cyanide asphyxiation expressed by Barnes and Teeters some 50 years ago: "a pleasant form of meeting death." While a gas chamber execution by nitrogen asphyxiation might pass constitutional muster under the standards of _Fierro v. Gomez_, it would remain a method of active killing, and thus fatally flawed from the standpoint of ethics and human rights. Correctional officers and wardens would still be required to kill the prisoner; and the psychological torture of anticipating death, highlighted by Barnes and Teeters themselves as well as Sister Helen Prejean, Amnesty International, and others, would still be present. However, there is another way of executing a condemned prisoner by "the administration of a lethal gas" (Penal Code Section 3604) which avoids this fatal flaw. The secret is to use a lethal gas consisting of approximately 21% oxygen, 78% nitrogen, 1% argon, and various trace components -- that is earth's natural atmosphere, available among other places in any correctional institution which the Legislature might designate for this purpose. Since no special lethal agent is used, but rather the pervasive atmospheric mixture we all breathe, this method may be termed "ambient lethal gas." Methods of execution by lethal gas which involve active killing generally involve disrupting the prisoner's physiological processes of using or accessing oxygen. In cyanide asphyxiation, this disruption takes place at a cellular level, causing as it evidently turns out the unintended suffering addressed in the _Fierro v. Gomez_ litigation, as well as, eventually, the intended death of the prisoner. In nitrogen asphyxiation, the oxygen present in the victim's lungs and bloodstream would be rapidly depleted, leading to hypoxia, possibly a period of euphoria, unconsciousness, and death. Ambient lethal gas, in contrast, kills (as it must, to satisfy Warden Ornoski's Criterion that the prisoner "ends up dead") through the long-term effects of aerobic respiration. The precise biological mechanisms involved remain an open question, with the toxic or deleterious effect of free radicals as one hypothesis suggested by ongoing medical research. The simple fact is that while traditional gas chamber executions demonstrate that we cannot live without oxygen, an execution by ambient lethal gas demonstrates that neither, in the long run, can we live with it! The prisoner, humanely but certainly, "ends up dead at the end of the process," the hallmark of a successful execution. In a state where we pride ourselves on environmental leadership, a leadership shown by such landmark measures as the California Environmental Quality Act of 1970, this method of implementing "the administration of a lethal gas" as provided in Penal Code Section 3604 might well be known informally as "death by biosphere." A simple way of explaining this humane and enlightened form of legally ordained death is to say that oxygen fuels the life of an aerobic organism such as a human being -- and therefore the aging process which eventually results in the death of that organism if no other cause of death supravenes. It is thus a "lethal gas" which may be administered under Penal Code Section 3604 without the need for any specialized apparatus; and it is guaranteed to result in a successful execution under Ornoski's Criterion without the need for the CDCR or its administrators to become involved in a choreographed killing. When it comes to the mechanism of death itself, the biosphere will do it all! However, correctional officers, wardens, and other CDCR personnel will have the not inconsiderable responsibilities of devising a more detailed protocol for ambient legal gas executions, and maintaining secure custody of the prisoner in safe and healthy conditions as the execution proceeds. Many of the incidents of the execution, for prisoners and correctional personnel alike, should be like those involved in serving or supervising a sentence of life imprisonment without the possibility of parole (LWOP). However, there might be reasons to distinguish in some ways between prisoners undergoing execution by ambient lethal gas and those serving terms of LWOP. As will be explained below, the two sentences are conceptually different and are imposed, to some degree, for different purposes. Yet an ambient lethal gas execution, beginning with the traditional reading of the death warrant by the Warden and ending with the declaration of the prisoner's death, requires the same duration as an LWOP sentence, so that California's three decades of experience with large numbers of prisoners serving LWOP should be helpful in administering executions by ambient lethal gas. ----------------------------------------------- 3.1. Oxygen as a lethal gas: A brief biohistory ----------------------------------------------- The categorization of life-sustaining oxygen as a "lethal gas" may at first seem surprising to CDCR decisionmakers and others; but a bit of scientific foundation may make the biologic basis for this humane method of carrying out the death penalty clearer. Current estimates place the age of the Solar System, including our planet, at around 4.6 billion years. Perhaps roughly halfway through that long and distinguished history, a crisis arose for life on earth, which based on the fossil record seems to date back at least 3.5 billion years. This "oxygen crisis," as it is often called, evidently occurred something like 2.4 billion years ago when our planet's atmosphere, evidently for the first time, accumulated threatening levels of a deadly pollutant: free molecular oxygen! Certain organisms, likely including those now known as cyanophytes or cyanobacteria (blue-green algae or bacteria, depending on one's viewpoint or disciplinary perspective within the field of biology), had for some time been using a process of photosynthesis producing oxygen, as green plants still do today. Over hundreds of millions of years, this oxygen reached atmospheric concentrates as toxic to many of the organisms then making up the biosphere, described as obligate anaerobes and unable to tolerate this corrosive pollutant, as hydrogen cyanide is to aerobic organizations such as human beings today. A biological revolution took place, ultimately resulting in a multitude of consequences including the evolution of diverse organisms making the most of this dangerous pollutant by using it in aerobic respiration, ultimately including humans. Thus the earth's biosphere today has a spectrum of organisms ranging from obligate anaerobes (like some bacteria) for whom exposure to oxugen kills immediately, to obligate aerobes such as humans for whom exposure to oxygen is essential to life in the short run but kills just as surely in the long run, with byproducts or concomitants of aerobic respiration such as free radicals likely serving as the patient but relentless executioners. For a prisoner whose sentence of death has become final, this lethal gas in its different aspects can serve as the agent as a humane, enlightened, and penologically productive execution, fulfilling the various purposes of punishment. In its short-term role as a sustainer of life, this gas serves as a vital element in the prisoner's process of remorse, restitution, and rehabilitation -- while suffering confinement which exacts a measure of stern retribution also, just as it would for an LWOP prisoner. In its long-term and lethal role, it exacts the full penalty of the law: "at the end of the process," as Warden Ornoski puts it as well as anyone, "the inmate ends up dead." Having sketched out the scientic and biohistorical basis for the execution by ambient lethal gas under California Penal Code Section 3604 -- a method which renders lethal injection, with its irremediable human rights problems, obsolete -- we turn to a closer consideration of the execution process; some open questions for further consideration within the CDCR and in public discussions; and some dramatic advantages and benefits for prisoners, correctional officers and staff members, and the People of California at large. ---------------------------------------------------------- 3.2. Ambient lethal gas: Outline for an execution protocol ---------------------------------------------------------- An execution by ambient lethal gas would begin, after the prisoner has exhausted her or his legal remedies and been denied clemency by the Governor, with the reading of the death warrant. Before considering this solemn and yet not inauspicious ceremeny, let us quickly note possible consequences for the appeals process itself. While there have been various inquiries into the reasons for the lengthy period which transpires in our state between the imposition of a judgment of death at the trial court level and the execution of that judgment, not least the recent investigation of the California Commission on the Fair Administration of Justice, two factors seem critical. The first is that an execution involving active killing, historically carried out in California by gallows, gas chamber, or lethal injection, precludes all earthly opportunities for rehabilitation, traditionally a cardinal goal of the California criminal justice system and one reaffirmed by the current name of the CDCR. The second is that such an execution also excluded any opportunity for further judicial or executive review of the prisoner's conviction and sentence, depriving organized society of the opportunity to make amends if a miscarriage of justice should later be demonstrated. The exonerations since 1972 of at least 133 Death Row prisoners brings home the gravity of such an irrevocable penalty. Execution by ambient lethal gas, however, involves neither of these causes for special caution. Since the execution normally takes up some years or decades between the reading of the warrant and the pronouncement of death, a prisoner undergoing execution retains essentially the same opportunities for rehabilitation as a prisoner serving a term of LWOP. Further, since a legal exoneration or executive pardon is still possible even while the execution proceeds, there is no need for delays and stays to keep the appellate process open, any more than with a sentence of LWOP. One might therefore guess that as ambient lethal gas is established as the prevalent or even sole method of capital punishment in California, state and federal courts may reconsider whether the traditional doctrine that "death is different" applies to such a genuinely kinder and gentler method of execution. If so, the appeals process may be streamlined, becoming much like those in LWOP cases. That having been said, let us turn to the main matter: the execution. -------------------------------- 3.2.1. Reading the death warrant -------------------------------- Traditionally, the Warden's duty of reading a death warrant in the minutes before an execution has been not only solemn but tragic, as he or she is presiding over a ritual of orchestrated killing in which humans kill one of their own: the prisoner. With ambient lethal gas, this ceremony of reading the warrant is solemn, but less tragic: the Warden must proclaim to the prisoner her or his fate of "death by biosphere," but with a hopeful message also of a new opportunity for repentance, restitution, and rehabilitation. The sentence remains awesome: with every breath the prisoner, kept within the stark precincts of penal confinement, will, with every breath, take in the combustive and corrosive lethal agent of molecular oxygen, thus moving step by step, or breath by breath, toward the inexorable death decreed by his or her peers as a just fate, the atmosphere itself carrying out the community's verdict that she or he is not "fit to live." At the same time, it is an invitation to the prisoner to make a personal reassessment, possibly already commenced during his or her stay on Death Row, leading to rehabilitation and service in the time they have remaining on this planet. Professor Blecker's writings suggest to me one specific proposal for this ceremony: that the Warden, in reading the warrant, might speak in honor of the victims and their families, placing these often neglected members of society in the limelight. Traditional executions have the serious drawback of placing the condemned criminal, and the apparatus and technique of killing itself, at center stage. Letting something as pervasive, transparent, and unassuming as our planet's normal atmosphere serve as the executioner has the virtue of letting the Warden, and community, focus on victims of crime and the solidarity which society owes them. --------------------------------------------- 3.2.2. The execution facility: open questions --------------------------------------------- After the warrant is read, the execution itself commences, and this raises the question of where the prisoner should be held and confined while undergoing execution. There are at least three possibilities. The first is that a special "Execution Unit," possibly a subdivision of a Death Row facility, might be designed for the housing of prisoners during their executions. An argument for such an arrangement would be that, by having been finally adjudged "unfit to live," these prisoners are in a special category distinct from those whose death sentences have not yet become final. A dedicated unit or subunit, even though living conditions might be much like those on Death Row -- or the rest of Death Row, if the Execution Unit is a subdivision of it -- might communicate the message that these prisoners, although treated humanely and quite possibly living under much the same routine as those whose sentences have not yet become final, have been definitely judged "the worst of the worst." The second is that prisoners undergoing execution, after the reading of the warrant, simply return to Death Row, which houses condemned persons of two kinds: those whose sentences have not yet become final because of outstanding appeals or clemency proceedings; and those undergoing execution. Especially when close and prosocial bonds develop between prisoners awaiting their appeals, letting these prisoners maintain these beneficial friendships while undergoing execution would promote rehabiltation and institutional stability. A third possibility is that prisoners undergoing execution -- or awaiting the outcome of their capital appeals -- should be housed on the same basis as prisoners serving LWOP. Although the two sentences are not the same, since a prisoner being executed is not a "lifer" but rather a "deather," as one might say, yet it remains that lifers and deathers alike generally share the expectation of many years and decades of confinement, giving them a vested interest in prison life which can promote institutional stability and facilitate rehabilitative goals. Administrative convenience and societal desire for retributive symbolism may both play a role in such choices. Having declared an offender "unfit to live" or "deserving of death" or "the worst of the worst," society, or at least a substantial segment of it, may feel that prisoners undergoing execution should be set apart from those serving life sentences, even withour possibility of parole. As will be discussed further below, LWOP prisoners are confined _until_ they die, while those undergoing execution are confined _in order to die_, a penal purpose advanced with every breath they draw. Whichever solution is chosen for housing these prisoners, one way of underscoring society's verdict without an undue burden to the prisoner is some constructive and symbolic token of the special gravity of the sentence being executed: for example, a requirement that they have in their living space always displayed a portrait of their victim or victims. This measure, duly enacted into the institutional regulations and made known to the community at large, could be adopted and applied to any of the residential alternatives sketched out above. ------------------------------------------------- 3.2.3. Managing the prisoner during the execution ------------------------------------------------- An inestimable advantage of the execution by ambient lethal gas is that it permits correctional officers and staff who have come to know the prisoner to continue in their roles as caregivers, mentors, and counsellors during the execution itself. Freed of the unspeakable task of killing the prisoner, happily delegated to our planet's atmosphere, these public servants can instead go about their normal and often highly rewarding custodial roles, even as molecular oxygen patiently and irrestibly carries out the sentence of the court. The paradox of capital punishment is that whether or not prisoners "deserve to die," our correctional officers and staff do not deserve the traumatic task of killing them, a task yet more traumatic and harmful to their own well-being when, as often happens, they become close and trusted friends of the person subject to the death penalty. In contrast, it causes no harm whatsoever to our atmosphere to play its premier role in ensuring that "the inmate ends up dead at the end of the process," again to quote Warden Ornoski. Rather, from that perspective, the execution is merely one more chapter in the saga of earth's biosphere. For prison staff, however, that same execution can be one more chapter in an institutional chronicle of friendship, rehabilitation, and spirited public servant which can elevate the prisoners they care for and serve -- even "the worst of the worst" -- into contributors to the society they have so grievously wronged. There is, of course, also a necessarily stern side to this duty: the need to maintain discipline and good institutional order, and sometimes to restrain a prisoner from attempting or doing harm to self or others. One might guess that prisoners undergoing execution, like those serving LWOP, will sometimes present behavioral problems; and similar policies and responses should apply, always emphasizing nonviolent and nonlethal solutions, and seeking to instill self-respect in prisoners as a positive basis for prosocial behavior. ------------------------------------------- 3.2.4. Declaration and annoucement of death ------------------------------------------- Upon the prisoner's death, the execution concludes: the sentence has duly been carried out. While current guidelines as to medical ethics prohibit a physician from participating in an execution by pronouncing death, this prohibition might not apply to execution by ambient lethal gas, where the execution process does not involve a homicide, but is expected to end with the natural death of the prisoner, albeit brought about in a sense by the sentence of the law. Indeed, on a form such as CDCR 837A, the attending physician or staff member might well check both "execution" and "natural" to describe the manner of death. The public, of course, would need to know that the execution had indeed been completed: the announcement, needless to say, should be in a quiet and dignified consistent with respect for the families of the prisoner, the victim or victims of the crimes for which the death sentence was imposed, and the institution. Compared to the drama of an execution involving active killing, death by ambient lethal gas seems almost a "nonevent" -- as it should be, since committing an aggravated homicide should not be a passport to fame and notoriety distracting us from solidarity with the victims, but rather a road to swift obscurity. Yet, while the element of unseemly spectacle is minimized, the dignity of the now deceased prisoner and her or his family is preserved and respected. One can picture these family members visiting with the prison staff who cared for the prisoner, sharing condolences and recollections, and possibly keeping up friendly ties in future months and years. If the death penalty is to be retained at all, this is the way to do it while respecting family values. ----------------------------------- 3.3. Media and crowd control issues ----------------------------------- Whatever an execution by ambient lethal gas may be, it is not a Roman holiday drawing a media feeding frenzy as demonstrators converge en masse on San Quentin and all too many citizens, including children, await every grisly detail available on exactly how, when, and how "smoothly" or untidily the condemned prisoner was killed by his or her fellow humans. Rather, the execution begins with the ceremony of reading the warrant; the prisoner is escorted to whatever facility has been designed for those undergoing execution; and institutional life goes on. Of course, the ceremony marking the start of the execution may attract some notice, and at the discretion of the CDCR might even be televised, since it is in good part a way of memoralizing crime victims as well as carrying out the awesome sentence of death in a humane way. As compared to traditional execution rituals, the proceedings in the hours and minutes leading up to the commencement of the execution might be rather spartan. Possibly the "last meal" and other special privileges accorded to someone about to face homicide at the hands of the state reflect a psychology similar to the custom of especially generous treatment for prospective victims of human sacrifice. Execution by ambient lethal gas inflicts the most common and thus "unassuming" form of death, as if to say that the defendant is unworthy of a more dramatic or newsworthy fate, and accordingly the ritual for commencing the execution might be very simple, attracting little media coverage and few demonstrators, at least once the new and "minimalistic" routine has become familiar. Of course, the prison and peace officers in surrounding communities must be prepared for a range of contingencies, and so the new execution protocol for ambient lethal gas should have appropriate provisions for addressing whatever happenings or problems may arise. The use by citizens of their First Amendment rights, and their active involvement in expressing their views on criminal justice issues, is of course itself a positive feature of democracy. One hopes that the new system will inspire calmer and more considered dialogue about crime, corrections, and the rehabiitative potential of all human beings. Reading about or covering the new form of execution might be something like proverbally watching the grass grow. This may promote a quiet and dignified atmosphere allowing the families of murder victims and condemned prisoners alike the peace and privacy they crave. And if they do wish to be heard, they can voice their concerns without the cacophonous competition of a new homicidal drama played out on the stage of an execution chamber. By letting our planet's atmosphere carry out the execution in its own good time, we help create a better social atmosphere for us all. -------------------------------------------------- 3.4. Positive economic impact for small businesses -------------------------------------------------- Small businesses and businesses in general should reap a massive benefit from the adoption of ambient lethal guess as a method of execution: the removal of most or indeed likely all of the cause for tourist boycotts, disinvestment, and possibly official sanctions by organizations such as the European Union or individual countries -- which executions by active killing might well trigger. Rather, like LWOP, the ambient lethal gas execution is a penalty which can be enforced without the spectacle of a state-sponsored killing, although the prisoner indeed "ends up dead." Many Californians may remember the response in Graz, Austria, when Stanley "Tookie" Williams was executed on December 13, 2005. Regrettably, some of the international outcry seemed directed personally at Governor Schwartzenegger, a native of Austria, rather than the policy itself -- or, rather, the inept and obsolete as well as cruel technique of killing a prisoner with lethal drugs rather than letting the atmosphere accomplish the task and treating the prisoner humanly as the process proceeds. Putting aside the unfortunate personal side of that protest, the voice of Graz, Austria, resounds as a clarion call: adopt an execution protocol consistent with international human rights standards, and protect the ability of California businesses, both large and small, to compete dynamically and successfully in the arena of world commerce! Competitiveness with other states is also an issue of concern, and jurisdictions like New Jersey (2007) and New Mexico (2009) are throwing down the gauntlet by abolishing the death penalty outright. The ambient lethal gas execution is our way of keeping up with them, and possibly even outdoing them in a friendly contest. Not only we do join them in the widening global circle of jurisdictions that have abolished the ritual of official homicide: we retain the expressive power of the death penalty which many citizens wish to retain in order to say that some crimes are "beyond the pale," and some criminals indeed "the worst of the worst." While this style of community judgment may not be to everyone's taste, it, too, can be seen as an exercise of First Amendment rights: no one is killed by the state, although the condemned prisoner does indeed, perforce, breathe the fateful molecules of atmospheric oxygen and "ends up dead." Thus is the "progress of civilization," as the great law enforcement officer and jurist William Bradford of Pennsylvania, who served as his state's Attorney General and later was to be Attorney General of the United States, called it in 1793 -- and also the key to California's continued progress and prowess in the march of a global economy. ----------------------------------- 3.5. Retribution and rehabilitation ----------------------------------- Execution by ambient lethal gas at once exacts stern retribution by bringing about the death of the prisoner as a punishment for crime, and in a real sense declaring that the execution is drawn out over a reasonable period of time only because correctional staff and society at large do not deserve to become the active agents of a killing; while at the same time affording an opportunity for rehabilitation, much as does LWOP. There is also a certain philosophical purpose in the continued distinction between LWOP and death by ambient gas: society has the opportunity to declare that some murders with special circumstances, and other capital crimes such as treason, are _especially_ bad, and worthy of an extra degree of opprobrium, so much so that the very biosphere seems to rise against the offender, executing the ultimate sentence of law far better than human beings could do with their own hands. If, as some philosophers have suggested, we may have a need not only to lionize our best heroes but to reserve a unique form of opprobrium for our worse criminals, this form of execution meets that need while leaving happily open the avenues of repentance, rehabilitation, and reconciation. ----------------------------------------- 3.6. Some fine but important distinctions ----------------------------------------- In many ways, a prisoner undergoing execution by ambient lethal gas seems to occupy a stance hard to distinguish from that of prisoners in two other categories: those on still awaiting the disposition of their capital appeals or clemency petitions; and those serving a sentence of LWOP. Let us explore some of the similarities and differences. ---------------------------------------- 3.6.1. Undergoing vs. awaiting execution ---------------------------------------- Prisoners awaiting the disposition of their capital appeals, and those actually undergoing execution, may well inhabit the same facilities or residential blocs, socialize together daily, follow the same routines, and live under the same institutional regulations. However, prisoners awaiting execution, rather than undergoing it, are under death sentences which have not yet become final. Strictly speaking, their punishment proper has not yet begun: they are being held while their legal issues or clemency applications are resolved. In contrast, a prisoner undergoing execution is receiving the legally ordained punishment itself: death, breath by breath, from the atmosphere itself and its active lethal agent of momentarily life-giving, but also inexorably life-eroding molecular oxygen harnessed in the service of the law and society. Like a prisoner in less humane and enlightened times falling through space after the opening of the gallows trap door, or hearing the cyanide pellets drop and smelling the fateful fumes, or receiving the first flow of thiopental in a lethal injection, the offender is not merely awaiting but suffering the penalty of the law. It is in one way a far more civilized and moderated form of suffering, shorn of humanity's homicidal violence to humanity; and in another way a more exacting fate, for it includes a duration comparable or virtually identical to that of LWOP, together with the opprobrium of being publicly judged "unfit to live." At the same time, and this is one of the beauties of the new method, there is indeed a certain continuity between awaiting and undergoing the sentence of the law: relationships, prosocial networks with other prisoners and staff, and constructive educational or other endeavors the prisoner may have built up or initiated during the appeals can be more or less seamlessly continued during the execution itself. ----------------------------------------------------------------- 3.6.2. Undergoing execution vs. serving LWOP: lifers and deathers ----------------------------------------------------------------- Both prisoners undergoing execution by ambient lethal gas, and those serving a sentence of LWOP, remain within prison walls until they die. Indeed, many of the logistics and psychological dynamics of the two sentences may be quite similar, with prisoners of both categories often developing a vested interest in the quality of institutional life, often making them valuable resources on which staff can draw, a point we shall soon explore at more length. However, there is an important conceptual differences. Prisoners serving LWOP have been judged unfit for life outside of an institution, and thus remain their until death: but that death is not itself a part of the sentence of the law. In mathematical terms, we might say that LWOP is a punishment of imprisonment which covers an interval of time with the prisoner's death as the upper bound or limit -- but not itself included in that "open interval," to speak technically. In contrast, prisoners undergoing execution have been judged categorically "unfit to live": the sentence, to express it in an older style of legal discourse, is "that you shall breath a lethal gas, to wit earth's normal atmosphere, including approximately 21% molecular oxygen, until you shall be dead." The moment of death itself is not merely the upper bound or limit of the interval of time over which the sentence is carried out: it is the very consummation of fulfillment of that sentence. Mathematically, the punishment occupies a "closed interval" from the reading of the death warrant up to _and including_ the moment of death. Warden Ornoski tells us much the same thing in less technical language: the execution succeeds because "the inmate ends up dead at the end of the process." From a certain perspective, everything that happens during the execution other than the defendant's breathing and its ultimate physiological consequences is a kind of sideshow or side effect: repentance, education, everyday counts and routines, friendships, service, and rehabilitation. Thus a prisoner undergoing this sentence might be called a "deather" rather than a "lifer," as similar as the two sentences are in many ways. The law, to borrow an expression from the English tradition, duly "takes its course"; and the cause of a humane jurisprudence is advanced with dignity and discernment. ------------------------------------------------------------ 3.7. Two relevant benefits: nonbrutalization and flexibility ------------------------------------------------------------ Two practical aspects of the new execution regime will have special benefits for correctinal staff and the system at large, and are worth briefly discussing. First, staff supervising an execution will not longer have to participate in an apparatus of active killing, and will be spared much pain, grief, and sometimes devastating levels of stress. Likewise, the "brutalizing" effects suggested for active forms of execution, where members of the public may either take the example of a choreographed killing as an invitation to engage in their own private homicides, or kill with a suicidal motive in order to be executed, should no longer apply when the ultimate sentence of law means a quiet, unassuming, and unrushed death behind bars by the pedestrian agency of aerobic respiration. Secondly, since the execution would require no special apparatus, only the atmospheric constituents available at any correctional institution, executions could easily be conducted at any prison where it is found appropriate and convenient to house condemned prisoners. More specifically, if the Legislature so saw fit, women prisoners required under current law to become rather long-term guests at San Quentin during their executions could instead receive their punishment at the Central California Women's Facility (CCWF), their accustomed and familiar residence. While the question of where prisoners are executed is a matter for the Legislature rather than CDCR, the more flexible range of pptions that the new form of execution would open is another advantage of the reform and refinement here advocated. --------------------------------------------- 3.7.1. Nonbrutalization and nontraumatization --------------------------------------------- Correctional officers and staff have sometimes described an old-style execution by hanging, cyanide pellets, or lethal drugs as the most stressful duty they are called to perform. It is nothing less than the cruel and unusual punishment of innocent and dedicated public servants, sometimes causing or aggravating Post-Traumatic Stress Disorder (PTSD). The damage may be yet greater if an officer or other staff member and the prisoner facing execution have developed a close and trusting relation, as often happens. These prisoners, assuming that justice has not miscarried (as has sometimes been known to happen), have indeed often committed absolutely monstrous crimes. Yet they are human beings, not "monsters," as the correctional peace officers and wardens who have been required to kill them often know best. Letting molecular oxygen do the killing should "clear the air" of much psychological toxicity for these servants of society who, in performing their duties, and "doing time" along with the prisoners they care for, counsel, and sometimes inspire to the point where "the worse of the worse" achieve "the best of the best." Further, execution by ambient lethal gas involves no violent assault upon the prisoner's body, or act of homicide, but simply harnesses nature as an engine of law. Private citizens will see a model, not of violent homicidal revenge, but of compassionately caring for and treating humanely even our worst offenders, hardly a "brutalizing" model for freelance acts of homicide. Nor will such a mode of execution likely appear an attractive method of state-assisted suicide, a known motive for some killings where the perpetrator then seeks a death sentence. The incidents of death by ambient lethal gas are from such a viewpoint much like those of LWOP. Thus the state avoids becoming an agent of suicide, and very possibly averts soem murders committed as the "price of admission" to the execution chamber. While cyanide or lethal injection might attract people in this homicidal-suicidal frame of mind as a moth is attracted to a flame, the slower and subtler combustion of molecular oxygen as it nonviolently goes about its rounds in our bodies and biosphere seems less likely to have any such effect. ----------------------------------------------------- 3.7.2. Flexibility in execution sites: Women and CCWF ----------------------------------------------------- Currently all executions are required by law to be carried out at San Quentin. Under the new execution regime, this has a curious ramification: condemned women prisoners, brought from CCWF to San Quentin for this purpose, will remain as "permament guests" for years or decades. If we assume that prisoners awaiting or undergoing execution will continued to be assigned special residential units distinct from those for other prisoners, it remains true that CCWF already serves this purpose. Since CCWF, no less than San Quentin, enjoys its fair share of earth's atmosphere and molecular oxygen, the Legislature would do well to considering authorizing executions there. Prisoners undergoing their sentences at CCWF could keep up their routines and ties of friendship, with familiar staff providing an element of security and stability while they, too, show themselves and society at large how repentance, restitution, and rehabilitation can continue even while oxygen, that dynamic and fateful agent of the law, goes about its business. ------------------------------------------------------------------- 3.8. Constitutional robustness: Execution as a domestic partnership ------------------------------------------------------------------- In speaking of execution by ambient lethal gas as a "domestic partnership" between condemned prisoners and correctional staff, I would emphasize that no conjugal relations are implied: only an expressive metaphor to stress the prisoner-staff bonds of friendship and respect that indeed make our institutions livable and productive; and the unique constitutional robustness of this humane form of capital punishment. Recently, in the case of _Strauss v. Horton_ (S168047), decided on May 26, 2009, the California Supreme Court ruled on the constitutionality of Proposition 8, a voter initiative excluding same-sex couples from the _designation_ of marriage, but not from the substantive rights which that designation has carried, especially "'...the opportunity of an individual to establish -- with the person with whom the individual has chosen to share his or her life -- an _officially recognized and protected family_ possessing mutual rights and responsibilities and entitled to the same rights and dignity accorded a union traditionally designated as marriage.'" Id. at 41, quoting _Marriage Cases_ (Cal. 2008), 43 Cal.4th 757, 781 (emphasis in original). As domestic partnership for same-sex couples compares to marriage under Proposition 8, so execution by ambient lethal gas, on a certain level, compares to a sentence of LWOP. The condemned prisoner, duly adjudged as "unfit to live," is accordingly not granted the _designation_ of LWOP. The humane form of the execution, however, offers many of the same "substantive rights" enjoyed by prisoners serving LWOP: the right to rehabliitation, education, and opportunities for service and reconciliation. The CDCR has aptly stressed the relevant topic of discussion here is how the death penalty should be carried out in California, rather than the controversial matter of its constitutionality. However, a delightful benefit of selecting the humane, progressive, and correct mode of execution by ambient lethal gas is that many constitutional issues are neatly resolved, at once meeting the goal of the CDCR for a method that can robustly withstand legal challenges, and making the concept of a "domestic partnership" a refreshing metaphor and byword for a new era in California corrections. Most respectfully, Margo Schulter 5901 Newman Court #35 Sacramento, CA 95819-2626 mschulter@calweb.com 29 June 2009