At a Crossroads

Last month a Superior Court judge ruled California’s revised lethal injection protocol to be invalid on the grounds that the state failed to adequately consider switching to use of a single drug.

Instead it has opted to retain its triple-drug cocktail that in 2006 was declared unconstitutional in light of evidence that executions inflict excessive pain on the condemned.  

California stands at a crossroads:  it can appeal the ruling and ignore the growing catalogue of botched executions as well as expert medical testimony that sodium thiopental frequently fails to induce unconsciousness, thereby inflicting the horror of slow suffocation. Or it can choose to end its constitutional wrangling by switching to a single dose of pentobarbital or sodium thiopental, as Ohio and Washington have recently done.  

Last week's ruling would seem to promote the latter option, but this too presents problems for the State.  The European Commission has just adopted regulations to limit the export of short- and intermediate-acting barbiturates, including pentobarbital and sodium thiopental, to prevent them finding their way into the hands of executioners.  Furthermore, without the compliance of the international pharmaceutical community, especially global manufacturers such as Hospira and Lundbeck, how can California secure a steady supply of drugs in the long term? 

The only viable option is to repeal the death penalty and replace it with life imprisonment without parole.  As a matter of public policy this is a no-brainer.  Since 1978, California has spent $4 billion maintaining the nation’s largest death row yet has carried out only 13 executions.  With political gridlock and a dismal fiscal outlook, there is now a significant public effort to put abolition to a vote in the 2012 election.  

Whichever drug protocol California opts for, lethal injection, and the death penalty in principle, will continue to be a legal, moral and financial black hole.