On November 6 the California Department of Corrections and Rehabilitation (CDCR) proposed a new “single-drug” injection protocol for carrying out the death penalty. This new protocol has been introduced to address a 2006 ruling by a federal judge that declared that, when the death penalty is incompetently carried out, executions can constitute cruel and unusual punishment and are therefore illegal under the Eighth Amendment to the US Constitution.
A separate federal court decision in 2014 ruled that having inmates on death row under conditions where it is questionable that they will ever be executed at all is a violation of the Eighth Amendment as well.
These and similar rulings have effectively led to the indefinite suspension of executions in California, despite the fact that there are about 750 people currently on death row. Inmates sentenced to death are more likely to die of natural causes or commit suicide than they are to be executed.
This newly proposed protocol involves using only one drug for lethal injection instead of the more typical three. In a “standard” three-drug lethal injection, the condemned receives one drug to induce a coma, one to paralyze, and the third to kill. With the new proposal, the CDCR would chose one of four barbiturates—amobarbital, pentobarbital, secobarbital or thiopental—and use that as the sole drug for an execution.
The CDCR would choose which drug to use on a case-by-case basis, as market forces may make a drug more or less expensive at any time. There is a recent history of suppliers either refusing to sell drugs if they know the drugs will be used in executions, or significantly marking up their prices, making executions quite expensive. In an already brutal affair, this can encourage executioners to use less reliable or even untested drugs.
Of the four drugs that may be chosen, amobarbital is notable here, as it has little history of being used in executions. The experiments with the sedative midazolam that took place last year should be recalled. In 2014, three prisoners—Dennis McGuire, Clayton Locket and Joseph Wood—in three different states were killed with a lethal cocktail including midazolam.
In each case, the prisoner was conscious or semi-conscious during the execution and visibly suffered for between 25 and 90 minutes before ultimately succumbing. With drugs like amobarbital, which are largely untested with lethal injections, what may happen to a prisoner during an execution is unknown.
The federal judges who ruled the California death penalty unconstitutional in 2006 and 2014 only did so from the standpoint of improving the efficiency with which capital punishment could be carried out. In the 2006 case, the death penalty was called cruel and unusual only on the basis of an incorrect administration. In 2014 the court stated that the problem with California’s capital punishment is that prisoners sit on death row for too long. According to this reasoning, it would be better if they could be executed more quickly. In 2015, the US Supreme Court upheld the use of midazolam in executions.
Should state death row inmates not want to risk suffering through a potentially painful and drawn-out process, they are given an alternative: They can choose to be executed in the gas chamber instead.
Despite Governor Brown’s claim to be an opponent of the death penalty, his administration accepted an agreement with the California superior court compelling the CDCR to draft a new execution policy. He has repeatedly said that he will enforce capital punishment so long as it is legal, and has refused to support anti-death penalty measures in the past.
As capitalism digs itself deeper and deeper into crisis, the ruling class is more and more determined to defend capital punishment as a tool in its efforts to contain a social explosion.
Approval for the death penalty is slowly but steadily decreasing the California. The experience of the particularly brutal executions over the last several years is still a fresh memory. Even more significantly, the endless wars abroad, rampant police brutality and pervasive spying have created a mood of distrust and hostility toward the state in the minds of many workers.