YOU TRY ’EM, WE FRY ’EM: I never saw much point of having my cake if I couldn’t eat it, too. But then, I never particularly liked cake. Even worse, I could never figure out what that expression meant. But if I could, I strongly suspect it would apply to the new debate swirling over the death penalty in California, in legal limbo since a federal judge found evidence six years ago that the three-chemical killer cocktail administered at San Quentin might constitute cruel and unusual punishment. Among California voters, the death penalty has been more or less a theological matter for the past 50 years. As with God, you either believe or you don’t. Mostly, Californians believed. Now, concern about the bottom line is shaking that faith. For the first time in eons, California’s death penalty is at risk. A new statewide coalition — SAFE California — is currently collecting signatures to qualify an initiative to abolish the death penalty for this November’s ballot. This group isn’t wasting any breath arguing the right-and-wrong of capital punishment; instead, it’s focused exclusively on the dollars and cents. A recent study undertaken by Ninth Circuit Court of Appeals Judge Arthur Alarcon — a death penalty supporter throughout his career — revealed that we’ve spent $4 billion since 1978 to execute 13 prisoners. That’s $308 million per execution. Alarcon’s study also found that running Death Row costs the taxpayers $185 million a year they could otherwise be spending on other things, like more cops, drug-rehab counselors, or teachers. Finally, it concluded the state could save up to $1 billion every five or six years by abolishing the death penalty outright and sentencing people convicted of capital offenses to Life Without Possibility of Parole instead. Many of the usual anti–death-penalty suspects — like the ACLU — are very much involved, but so too is Jeanne Woodford, the former warden of San Quentin who personally presided over four executions. And so, too, is Don Heller, the former prosecutor who wrote the 1978 ballot language reinstating the death penalty in California.
Many are quick to blame the dedicated cadre of bleeding-heart–obstructionist attorneys who file appeal after appeal to ensure the state doesn’t accidentally kill off any innocent scumbags. Given the 17-year gap between average conviction and average execution, clearly, they’ve been effective. And increased delays equal increased costs. But equally responsible has been the Department of Corrections itself. Not only has the state’s actual execution of the death penalty been startlingly half-assed, but its rigid insistence on using the killer-cocktail protocol — when more effective and more expedient alternatives clearly exist — makes me wonder if the Department of Corrections isn’t secretly in league with the ACLU to end capital punishment. The killer cocktail consists of three chemicals: The first, sodium thiopental, is a barbiturate that knocks you out; the second, pancuronium bromide, is a paralytic agent that stops the muscles used to breathe; the third, potassium chloride, chemically short-circuits your heart. Unfortunately, sodium thiopental is extremely short-acting. A federal judge found that in six of California’s 11 lethal injections, there was reason to wonder if the drug knocked the prisoners out for the duration of their execution. If not, that means the condemned were chemically suffocated to death while still conscious. As excruciating as that sounds, it’s nothing compared to the liquid flamethrower effect induced by an injection of potassium chloride. The good news, at least for those witnessing, is that there’s no writhing, twitching, or contorting on the part of the executed. After all, they’ve been paralyzed. This, in the words of Chief Justice John Roberts in a 2008 ruling upholding the constitutionality of the procedure, ensures that “the dignity of the procedure” is maintained.
It’s worth noting that the Humane Society and every organization of veterinarians in the country have strongly condemned the use of paralytic agents — like pancuronium bromide — when euthanizing animals. In fact, in the states where 97 percent of all lethal injections have occurred, the state legislatures have passed laws prohibiting the use of such paralytics when killing critters. (The killer cocktail was originally concocted in Oklahoma in 1977; by 1981, that state’s legislature outlawed as inhumane the use of paralytics to kill animals.) Typically, dogs, cats, cows, and horses are put down with a massive overdose of a single barbiturate. In recent years, states like Ohio and Washington have decided if it’s humane enough for animals, it’ll have to do for humans. California has thus far refused to even consider that option. It has also proved equally stubborn in not explaining why. Ohio was prompted in large measure by the decision of Hospira, the manufacturer of sodium thiopental, to shut down its U.S. factory and to stop selling the drug to death rows in the U.S. This shortage induced a panic among American executioners last year, and numerous executions were postponed. Arizona responded by buying in bulk from Dream Pharma, a very shady British company located behind a driving school in West London that specializes, according to its Web site, in finding hard-to-get drugs that have been discontinued or unlicensed “in other parts of the world.” In turn, California’s executioners bought a few vials from Arizona just in case. This in turn sparked one of the weirder lawsuits ever, with attorneys for the condemned arguing the imported sodium thiopental could not be used in American executions because the Food and Drug Administration had not first certified it could be used to kill safely. Among the many deficiencies listed, it turns out the imported vials of the drug did not contain warning labels that the product contained was habit-forming. California could easily finesse the cruel-and-unusual concerns by abandoning the killer cocktail and switching to sodium pentobarbitol, as the state of Ohio — and thousands of veterinarians — have done. Until the state at least studies the matter, the death penalty is effectively dead here. And that’s just as well.
Like I said, I’ve never been a big fan of cake. But then again, $4 billion will buy an awful lot of it. And enough milk and icing to help get it down.