Morales v. Tilton, C 06 219 JF RS.

• Decision Date: 15 December 2006
• Docket Number: No. C 06 219 JF RS.,No. C 06 926 JF RS.,C 06 219 JF RS.,C 06 926 JF RS.
• Citation: 465 F.Supp.2d 972
• Parties: Michael Angelo MORALES, Plaintiff, v. James E. TILTON, Secretary of the California Department of Corrections and Rehabilitation, and Robert L. Ayers Jr., Acting Warden of San Quentin State Prison, Defendants.
• Court: U.S. District Court — Northern District of California

465 F.Supp.2d 972

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

No. C 06 219 JF RS.

No. C 06 926 JF RS.

United States District Court, N.D. California, San Jose Division.

December 15, 2006.

David A. Senior, McBreen & Senior, Los Angeles, CA, Ginger Anders, Jenner & Block LLP, Washington, DC, Janice H. Lam, Richard P. Steinken, Stephanie L. Reinhart, Jenner & Block LLP, Chicago, IL, John R. Grele, Law Office of John R. Grele, San Francisco, CA, for Plaintiff.

Dane R. Gillette, Ronald S. Matthias, State Attorney General's Office, Karl Olson, Levy, Ram & Olson LLP, Wendy J. Thurm, Keker & Van Nest LLP, San Francisco, CA, Kelly Lynn McClease, Femal, California Department of Corrections and Rehabilitation, Sacramento, CA, Rochelle L. Wilcox, Los Angeles, CA, for Defendants.

Habeas Corpus Resource Center, San Francisco, CA, pro se.

California Appellate Project, San Francisco, CA, pro se.

MEMORANDUM OF INTENDED DECISION; REQUEST FOR RESPONSE FROM DEFENDANTS

FOGEL, District Judge.

I

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

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

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

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

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

II

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

In California, "[i]f a person under sentence of death does not choose either lethal gas or lethal injection within 10 days after the warden's service upon the inmate of an execution warrant [then] the penalty of death shall be imposed by lethal injection." Cal.Penal Code § 3604(b) (West 2006). More specifically, "[t]he punishment of death shall be inflicted ... by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections."¹ Id. § 3604(a). Defendants² have adopted San Quentin operational Procedure No. 0-770 ("OP 770") as California's protocol governing executions by lethal injection. This protocol, like those used by the federal government and most other states, provides for the injection of three drugs into a person being executed: sodium thiopental, a barbiturate sedative, to induce unconsciousness; pancuronium bromide, a neuromuscular blocking agent, to induce paralysis; and potassium chloride, to induce cardiac arrest.

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

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

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

Id. at 1046-47.

The day after the Court issued its order, Defendants responded that they had retained the services of two anesthesiologists who would attend Plaintiffs execution...