The battle over California’s voter-backed effort to resume executions will begin in earnest when state officials and death penalty supporters head to court to seek an end to orders that have blocked executions since 2006.
State officials and a former NFL player whose family was murdered want Marin County Superior Court Judge Roy Chernus to lift his injunction on an execution in that case.
They say California now has the necessary regulations to execute condemned inmates using a single dose of powerful barbiturates.
A hearing on the request is set for Wednesday.
Judges previously rejected the state’s three-drug method of carrying out executions, forcing the adoption of new rules this year.
The case in Marin County is one of four in the courts holding up executions. No executions can take place until all the judges agree to lift the ban.
California has the nation’s largest death row with nearly 750 inmates. Only 13 have been executed since 1978. Currently, condemned inmates are more likely to die of old age during decades of appeals.
A 2016 voter-approved ballot measure attempted to remove regulatory hurdles to executions.
Death sentence opponents plan to fight the state’s new execution method in federal court. Two other procedural challenges are underway.
Former NFL defensive back Kermit Alexander filed the Marin County motion, joined by state officials who are urging the judge to end the “unwarranted delay regarding executions.”
Alexander was a proponent of the ballot measure designed to streamline death penalty regulations and appeals and speed executions. His mother, sister and two nephews were murdered in 1984.
“This injunction harms the public interest, and it harms the particular interests of families who have already waited far too long for justice,” his motion states.
Opponents counter that the state must still go through the normal time-consuming regulatory process for procedures related to executions that were not specifically exempted by the ballot measure.
That includes things like determining if an inmate has become insane behind bars, selecting witnesses to executions, and disposing of inmates’ bodies and property.
A separate lawsuit filed last month in Marin County by condemned inmate Jarvis Jay Masters and the nonprofit organization Witness to Innocence challenges the new execution rules on similar procedural grounds.
Meanwhile, the American Civil Liberties Union of Northern California contends in legal action that state lawmakers cannot delegate the responsibility for drafting execution regulations to unelected prison officials.
Officials say those three procedural cases must likely be resolved before a separate legal battle before U.S. District Court Judge Richard Seeborg of San Francisco renews the fight over how to humanely execute condemned murderers.
His predecessor on the bench ruled in 2006 that the previous execution method violated the 8th Amendment’s ban on cruel and unusual punishment.
Seeborg will have to decide if the new process is humane.
“Are all these appropriate safeguards in place to avoid the substantial risk of severe pain? Those remain real questions,” said Linda Lye, a senior ACLU staff attorney.
David Senior, one of the attorneys representing condemned inmates in that case, said death penalty opponents are likely to challenge how executioners are selected and trained, which facilities and equipment they use, and how the lethal drugs are selected, mixed and stored.
The main objection has been whether the barbiturates allowed under the new rules can be safely obtained. The rules call for using either pentobarbital or thiopental, depending on which is more readily available.
The federal government bars importing thiopental and the maker of pentobarbital prohibits using it in executions.
The state regulations allow for buying the drugs from compounding pharmacies, but those businesses may have trouble importing the ingredients, said Ana Zamora, formerly an ACLU criminal justice policy director.
Zamora also questioned how the state would guarantee the chemicals would be properly mixed, increasing the possibility of botched executions. Inmates can also choose the gas chamber.
“It’s the nature of the death penalty litigation that they fight everything they can,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation that advocates for crime victims and is pushing to resume executions.