Harford 1

Joel Harford
ENG 123
Prof. Fisher
Fall 2015
Lethal Injection: California Reform

"On April 29, 2014, Oklahoma prison officials administered an untested mixture of three
drugs to Clayton Lockett, a convicted murderer and rapist (Greenberg 1). The execution went
immediately and terrifyingly wrong. Following administration of the first drug, Lockett,
obviously conscious, started to writhe and groan, and then went into convulsions (1). This is
one example of the many botched executions that have occurred in recent history. With the
possibility of an execution going as badly as Locketts, we must ask if we are violating the US
constitution. The 8th amendment states, Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted (amend. XIII). Considering the possibility
of an execution going as badly as Locketts, we must ask if we are violating this amendment. I
will argue that the California push for the repeal of lethal injection over reforming the practice,
as an immediate solution that would save the state millions, and provide for the closure of
hundreds of legal cases.
The execution of an inmate is likely to bring up issues of faith. Romans 12:18 states
leave it to the wrath of God, for it is written, Vengeance is mine, I will repay, says the lord
(Rom. 12.18). Morality should determine where we go as a country, including the punishments
we invoke. I feel as repeal of lethal injection is the righteous solution, based upon the inherent
risk of botched executions and an ethical obligation to prevent these instances. The argument for
the repeal of lethal injection will focus on the causes of the problem and the moral obligations of
us as people of faith.

Harford 2

Currently in California, lethal injection is a flawed institution with limited success.

Financial costs of lethal injection appeals and prisoner confinement put a burden on the state and
its budget. Researching issues of financial burden, I looked to Scott Howe of Chapman
University School of Law. His research focused on the capital punishment and the issues it faces
in California, Without reform, California will remain in a costly quagmire. Death row may
continue to grow while a large proportion of condemned inmates die from suicide, disease, old
age, or murder, rather than from execution (1453).
The Humaneness of lethal injection is an area of concern in the administration of the
death penalty. Teresa A Zimmers led a team of medical researchers for the PLoS Medicine
Journal. Their research revealed a number of occasions of botched executions; they concluded
the conventional view of lethal injection leading to an invariably peaceful and painless death is
questionable (646). Catherine L. Langford, who studied in Texas Tech University, found a
method, or criteria, of determining inhumane executions, Executions use the body-as-gauge to

assess the pain, if any, experienced during execution. The recent string of botched lethal injection
cases serves as a fitting example (155). The observation of botched executions brings into
question the humaneness of lethal injection.
The history of lethal injection in California may reveal possible causes of the current
situation. In 1972 the reinstatement of the death penalty was the first step towards lethal
injection. From that event, a combination of propositions and court cases extend the appeal
process of death penalty cases. Many court cases have shown a constant discussion of the
constitutionality of the death penalty. The propositions that have passed and failed show the
public desire to maintain the death penalty in the state of California. The blocked execution of
Michael Morales directly effects regarding the lack of executions since that date. The timeline of

Harford 3

events will build to show a great financial and legal toll taken by the state. Figure 2, pictured
below, shows the specific events I will review and discuss.
Carol Steiker is a professor of law at Harvard University. She researched the similarities
and differences between trends in mass incarceration and capital punishment. In her article The
Death Penalty and Mass Incarceration: Convergences and Divergences she states, Several
polices central to the rise of mass incarceration have helped to promote the retention of capital
punishment at the abstract level of theory and discourse (194). Carol Steiker showed attitudes
towards crime and punishment shifted to a more swift and severe approach, In this atmosphere,
the death penalty became a particularly potent symbol, offering politicians a way to signal in
powerful shorthand their claims of toughness (192). Politicians pushed for severe punishments
as a way evidenced by the reinstatement of the death penalty.
The political push for capital punishment the 60s continued on into the 70s. In 1972
California passed proposition 17 which amended the California constitution to state,
The death penalty provided for under those statutes shall not be deemed to be, or to
constitute, the infliction of cruel or unusual punishments within the meaning of Article I,
Section 6 nor shall such punishment for such offenses be deemed to contravene any other
provision of this constitution (CA Const. Art. 1 Sec. 27.)
This proposition allowed the use of the death penalty in California, as well as the stance that the
death penalty was seen as constitutional and not cruel and unusual. Death sentences were
given and the convicted began to appeal the cases. Soon after, a Proposition in California aimed
to create an automatic appeal process for death penalty sentences.
On November 1978, Proposition 7 passed in California, which created automatic appeals
on death penalty cases, cases in which the death penalty has been decreed are automatically

Harford 4

reviewed by the California Supreme Court (par. 19.). The automatic review created a system
where every death sentence would be reviewed by the California Supreme Court. This is one
cause of court delays in the appeal process. Scott Howe is a researcher at Chapman University
School of law who investigated the severe backlog of cases to be heard by the courts. Howe
observed that death sentences have been generated in the trial courts at a much greater rate than
they have been resolved on direct appeal (1452). With more death sentences being assigned
than appeal cases closed, the court backlog and appeal time will only increase.
In October 1994, a U.S. District judge, ruled the use of cyanide gas was cruel and
unusual punishment and barred the state from using that method of execution (CA Dept.
Corrections par. 25). Cyanide gas was determined to be cruel and unusual on the basis of
asphyxiation. With the removal of gas chambers, lethal injection became the primary form of
execution in the state. The appeals process continued on and death penalty sentences showed no
signs of slowing. All executions would come to a halt in 2006 when, condemned inmate Michael
Angelo Morales execution was stayed because of his claim that Californias administration of its
lethal injection protocol would subject him to an unnecessary risk of excessive pain and violate
the Eighth Amendment (par. 27). This court case created a de facto moratorium on the death
penalty in California until the implementation can be fixed. Since this date there have been
zero executions administered. While no executions have taken place, the death sentence has been
continuous in its use as a verdict. This has proven to only add to the backlog of court cases to be
heard by the California Supreme Court. Scott Howe observed the increase in death penalty
sentences, such as In 2009, California trial courts imposed twenty-nine new death sentences
and, in 2010, there were thirty-three (1462). A court case in Kentucky would give life back to
capital punishment around the country.

Harford 5

In 2008, Kentucky Supreme Court heard a case, Baze v. Rees, involving a single drug
lethal injection protocol. Deborah W. Denno is a lawyer writing for the Georgetown law review.
She took an extensive look at the court case in Kentucky and the effects it had on the country.
The belief was this ruling would increase executions, yet as Denno states, some predicted that
there would be a surge of executions because the de facto moratorium had created a backlog of
death-row inmates. That prediction was never realized (1345). She attributes the falling
numbers of executions to public opinion due to, discoveries of innocence among death-row
inmates, a reduction in the number of individuals eligible for execution, racial disparities,
botched executions, or other reasons, the courts and the public have shown more skepticism of
the capital punishment process (1345). After an increase in court cases, a new problem arose to
challenge lethal injection, a drug shortage.
The anesthetic drug used lethal injection, called sodium thiopental, is facing an
availability shortage. Ty Alper is a Clinical Professor of Law at the U.C. Berkeley School of
Law, his analysis of the drug shortage reveals how the European Union was able to halt
executions across the country. The EU has a regulation, which prohibits trade of goods which
could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or
Punishment (Alper 28). The distribution of thiopental was, by Alpers research, manufactured
by Dream Pharma, a small wholesaler that operated out of the back room of a driving school on
the outskirts of London. This imported thiopental was not approved by the U.S. Food and Drug
Administration (30). Not only was the drug illegally brought into the country, it was not
approved for use. This creates not only an ethical issue, but an international issue as well. The
result was the UK government passed an export control on thiopental, therefore creating a
shortage of the anesthetic.

Harford 6

On the November ballot in 2012, Proposition 34 sought to end the death penalty in
California. The proposition was supported by the Catholic bishops in California. Prop 34 was an
initiative that would replace the states death penalty with the sentence of life imprisonment
without the possibility of parole (California Catholic Conference par. 1). The Huffington Post
reports, the movement to abolish capital punishment gained just 47.3 percent of the vote (par.
1). With voters upholding capital punishment in California, the possibility of removing the death
penalty appears slim.
There are two solutions moving forward that I have reviewed and considered. The first
solution to consider is the outright abolition of the lethal injection. The justification for this issue
is it would immediately put an end to all appeal cases, as well as remove the possibility that we
may violate the 8th amendment. This solution is heavily supported by the American Civil
Liberties Union. The alternate solution proposed by the California Department of Corrections
and Rehabilitation, is to introduce a single drug injection policy. This solution is gaining
momentum in California. Other states have already changed to a solution. I will argue for my
suggested solution based on the cost, causality and ethics. Faith will also be a key factor in
looking at solutions. Jesus states that the second most important commandment of God is You
shall love your neighbor as yourself (Matt. 22.39). I will look at the solutions and show how
repeal of lethal injection is the better of the two.
My primary solution is the reform of the lethal injection protocol. Currently in California
the California Department of Corrections and Rehabilitation have recently proposed a regulation
change of the lethal injection protocol. The reformed protocol aims to respond to allegations of
8th amendment violations; it claims to Establish a lethal injection protocol . To ensure
Californias execution protocols comport with the Eighth Amendment (2). It also provides for a

Harford 7

solution to the drug shortage issue, any one of four barbiturates listed in the regulations, in a 7.5
gram dose, may be selected as the chemical which will be used in the execution (3). The
protocol reform aims to correct many of the issues of lethal injection. The first question of this
solution is the cost.
The cost of the new protocol is broken down into sections. The total combined costs of a
single execution are determined to be $186,886 (Notice of Change to Regulations 4). The Cost of
annual training will be $66,740 (4). Ignoring the annual training, to execute all 747 inmates on
death row would cost $139.6 million dollars. This cost does not include the financial cost of the
many appeals yet to be heard by the Supreme Court. Scott Howe of Cardozo Law review, whom
I spoke of earlier, estimated that California has spent more than $184 million in 2009 alone on
the death penalty (1513). Considering the amount spent per year on the death penalty, the cost of
reform adds no financial burden on the state, however it also fails to remove and financial
burden. This solution relies on the other benefits it may offer.
The reform of lethal injection claims to comply with the 8th amendment. The argument
against lethal injection mostly relies on the argument of humaneness and the 8th amendment. Sara
Coln is a doctoral graduate from Berkeley, her extensive look at capital punishment in
California aims to prove lethal injection as a violation of the constitution. Her argument revolves
around the Supreme Court ruling in the case Baze v. Rees. Her quote of the ruling is as follows:
the alterative procedure must be feasible, readily implemented, and in fact significantly reduce a
substantial risk of severe pain (qtd. in Coln 1384). She interprets this as, if the more painful
alternative does not have more or different penal value than the less painful alternative, the more
painful alterative is violative of the Eighth Amendment (1384). The new protocol gives the

Harford 8

option for various different chemicals to use in the execution to fit this description. Until the new
chemicals are tested, we must wait to see if they are effective and free of pain.
The second possible solution is a new initiative seeking addition to the 2016 general
election ballot. The initiative, known as the Justice That Works Act of 2016, is led by Mike
Farrell, he is most known as an actor on the TV series M*A*S*H. He has since focused on
fighting capital punishment. His proposed initiative declares the intent as follows:
To end California's costly and ineffective death penalty system and replace it with a
commonsense approach that sentences persons convicted of first degree murder with
special circumstances to life imprisonment without the possibility of parole so they are
permanently separated from society, and required to pay restitution to their victims
(Justice That Works Act sec.3)
The initiative seeks to eliminate the risk of executing an innocent person as well as end the
decades-long appeals process (sec. 3). This proposal has the possibility to solve many of the
issues facing lethal injection. I present this solution not as an argument against capital
punishment, but as an option that would provide the state a solution to the lethal injection
problem.
The Justice That Work Act is capable of saving California millions. The initiative
claims to save the state over $100 million dollars a year (sec. 2). Scott Howe reviewed the costs
of lethal injection in 2008 and found that, $ 126.2 million more than the annual costs that would
accrue if the death penalty were immediately abandoned in favor of sentences of life
imprisonment without parole (1466). Howe looked at the overall cost of the death penalty,
finding taxpayers have spent more than $ 4 billion on the California death penalty since 1978

Harford 9

(1512-1513). The future costs saved by this initiative are substantial. If the initiative were to
pass, it is important to look at the causation of repeal.
The immediate effect of the repeal of the lethal injection would be the end of all pending
appeal cases. Sara Coln took an extended look at the court delays in California. Through her
findings, she says, It would seem . That most of California's extra delays are not caused by
the defendants' abuse of the system but rather by problems inherent in the state's system (1393).
By removing the death penalty from the picture, the inherent problems can be avoided entirely.
Assessing the effect of repeal we can see a quick solution to the many legal issues in the state.
Ethical analysis should take place in deciding any solution. The humaneness of lethal
injection is an important topic on the subject of repeal or reform. Considering repeal, the
possibility of cruel and unusual punishment is a constant risk for lethal injection. This is
evidenced by the study of Teresa A. Zimmers and her researchers. The team discovered that
even if lethal injection is administered without technical error, those executed may experience
suffocation (653). If even in the case of a properly administered injection may lead to
suffocation, the risk should be seen as too great to take.
Comparing the two solutions to one another, it becomes clear which one will prove to be
a more comprehensive solution to the problem in California. The Cost benefit of the repeal of the
death penalty provides a vastly greater relief to the state than the slight increase that the reformed
lethal injection would remove all appeal cases that are tied up in the California Supreme Court.
The new injection protocol would only marginally end some of the 8th amendment cases. The
legal benefit of removing the lethal injection would be substantially more effective than reform.
Ethics is where the reform method may compete with the repeal initiative. As shown in the
history of lethal injection, the method has repeatedly been deemed constitutional on many

Harford 10

different grounds. At this point it seems unlikely that the Supreme Court will end the use of
lethal injection. Even though many perceive lethal injection as humane, I argue that the risk of a
botched execution or chemical error is reason enough to deem them inhumane.
The money saved is greater than that of reform. The effect on litigation cases in
California would be significantly improved by abolition over reform. The possibility of a
botched execution is always a threat with lethal injection. With the removal of the death penalty,
we could rest easy as a country knowing we are not the ones who put others through tortuous
scenarios. The benefits of the repeal of the death penalty would be immediate while, reform of
the lethal injection protocol would still require appeals and a lengthy approval process. The
repeal of lethal injection would not mean the release of the death row inmates, they would be
given life sentences and justice will have been served.
The lack of executions in California shows the failures of lethal injection in the state.
Since 1972 we have only executed 13 of the 747 inmates on death row and 24 inmates have
committed suicide (History of Capital Punishment in California). Death row inmates have been
more successful in killing themselves than the state of California with executions. With the lack
of executions carried out, it is clear to me that as a state it would be better if we washed our
hands of this situation and moved on to other issues that need our attention. From the words of
Catherine Langford who researched the ethics of lethal injection, we should agree that the death
penalty experiment has failed and decide to no longer tinker with the machinery of death (169).
The issue of lethal injection is an important social issue that needs attention. In the Bible
it says Beloved, if God so loved us, we ought also to love one another (1 John 4.11). The bible
and Jesus constantly try to remind us that we are to love one another. When one of us commits
such a heinous crime, such as the rape and murder of another, many people resort immediately to

Harford 11

vengeance and the greatest punishment of all. As people of faith, it is important to follow the
words of Jesus, Judge not, and you will not be judged; condemn not, and you will not be
condemned; forgive, and you will be forgiven (Luke 6.37). Finding a solution for lethal
injection will help us grow as a state as well as people of faith.
There is a chance to make a difference regarding lethal injection. Initiative 15-0066,
known as The Justice That Works Act of 2016, has the possibility of ending lethal injection in
California by removing the death penalty. Important initiatives such as this depend on public
action to move forward. This initiative needs over 300,000 signatures to become a proposition in
the upcoming election. When you are approached by a petitioner for upcoming elections, listen
to what they have to say. When you hear about The Justice That Works Act, sign the initiative
and help end a failing system.

Harford 12

Works Cited
Almendrala, Anna. Prop 34 Defeated: California Voters Preserve Death Penalty Huff Post Los
Angeles. The Huffington Post. 7 Nov. 2012. Web. 11/26/2015.
Alper, Ty. The United States Execution Drug Shortage: A Consequence of Our Values. Brown
Journal of World Affairs. 21.1 (2014): 27-39. OneSearch. Web 11 Nov. 2015.
Blythe, Harrison. Laboratories of Democracy? Or Machinery of death? The Story of Lethal
Injection Secrecy and a Call to the Supreme Court for Intervention. Case Western
Reserve Law Review. 65.4 (2015): 1269-1289. OneSearch. Web. 11 Nov. 2015.
CA Constitution. Art.1, Sec.27.
California. Dept. of Corrections & Rehabilitation. History of Capital Punishment in California.
n.d. Web. 25 Nov. 2015
California. Dept. of Corrections & Rehabilitation. Notice of Change to Regulations 15-10.
Undersecretary Scott Kernan. 6 Nov. 2015. Web. 25 Nov. 2015.
California. Office of the Attorney General. The Justice That Works Act of 2016. Proponent Mike
Farrell. 15 Sept. 2015. Web. 25 Nov. 2015
California Catholic, Conference. "California Bishops Support Proposition 34 the Death Penalty
Repeal Initiative." Business Wire (English) 9:Regional Business News. Web. 28 Nov.
2015.
Coln, Sara. Capital Crime: How Californias Administration of the Death Penalty Violates the
Eight Amendment California Law Review. 97.5 (2009): 1377-1417. Business Source
Premier. Web 12 Nov. 2015.
Corlett, Angelo J. "Responsibility and Punishment." Library of Ethics and Applied Philosophy.
4th Ed. Boston: Kluwer Academic Publishers, 2013. Webcat. Web. 30 Oct. 2015.

Harford 13

Davis, Michael. "The Death Penalty, Civilization, and Inhumanness." Social Theory & Practice.
16.2 (1990): 245-259. Academic Search Premier. Web. 30 Oct. 2015.
Denno, Deborah W. "Lethal injection Chaos Post-Baze." Georgetown Law Journal 102.5 (2014):
1331-1382. Business Source Premier. Web. 7 Nov. 2015.
EVS Study Bible. EVS Text Edition. Wheaton: Good News Publishers, 2008. Kindle File.
Giby, George, and Jennifer Stanford. The Ethics of Medical Involvement in Lethal Injection
Executions: Discussing the Role of the Anesthesia Provider. Penn Bioethics Journal 7.1
(2011): 33-37. OneSearch. Web. 11 Nov. 2015.
Greenberg, Harvey Roy. "OklahomaS Botched Execution." Psychiatric Times (2014): 1-2.
Social Sciences Full Text (H.W. Wilson). Web. 27 Nov. 2015.
Hodgkinson, Peter, ed. Capital Punishment: New Perspectives. Burlington: Ashgate Publishing
Company, 2013. Webcat. Web. 30 Oct. 2015.
Howe, Scott W. "Can California Save Its Death Sentences? Will Californians Save the Expense?"
Cardozo Law Review 33.4 (2012): 1451-1516. Academic Search Premier. Web. 5 Nov.
2015.
Langford, Catherine L. "Tinkering With the Machinery of Death: The Body-As-Gauge in
Discourses about Capital Punishment." Argumentation & Advocacy. 51.3 (2015): 153170. Communication & Mass Media Complete. Web. 7 November 2015.
LeGraw, Joan M., and Michael A. Grodin. "Health Professionals and Lethal Injection Execution
In The United States." Human Rights Quarterly 24.2 (2002): 382-423. Criminal Justice
Abstracts. Web. 14 Nov. 2015.

Harford 14

Lassiter, Matthew D. "Impossible Criminals: The Suburban Imperatives Of America's War On

Drugs." Journal Of American History 102.1 (2015): 126-140. Academic Search Premier.
Web. 28 Nov. 2015.
Murphy, Jeffrie G. "Christianity and Criminal Punishment." Punishment & Society. 5.3 (2003):
261-278. Academic Search Premier. Web. 30 Oct. 2015.
Price, Keith J., and Gary R. Byrd. Capital Punishment in Texas and California: A Comparison.
Applied Psychology in Criminal Justice. 4.2 (2008): 207-227. PsycINFO. Web. 12 Nov.
2015.
Smith, Robert J. "Forgetting Furman." Iowa Law Review 100.3 (2015): 1149-1207. Academic
Search Premier. Web. 28 Nov. 2015.
Steiker, Carol S. "Mass Incarceration: Causes, Consequences, and Exit Strategies." Ohio State
Journal of Criminal Law. 9.1 (2011): 1-6. Web. 2 Nov 2015.
Steiker, Carol S. and Jordan M. Steiker. "The Death Penalty and Mass Incarceration:
Convergences and Divergences." American Journal of Criminal Law. 14.2 (2004): 189207. Academic Search Premier. Web. 30 Oct. 2015.
US Constitution. Amend. XIII
Varelius, Jukka. "Execution By Lethal Injection, Euthanasia, Organ-Donation And The Proper
Goals Of Medicine." Bioethics 21.3 (2007): 140-149. Academic Search Premier. Web. 14
Nov. 2015.
Vogue, Ariane de. Oklahoma delays further executions while system is reviewed CNN.com.
Cable News Network. 8 Oct. 2015. Web. 18 Nov. 2015.

Harford 15

Zimmers, Teresa A., et al. Lethal Injection for Execution: Chemical Asphyxiation? PLoS
Medicine. 4.4 (2007): 646-653. OneSearch. Web. 11 Nov. 2015.
Zivot, Joel B. "The Absence of Cruelty is Not the Presence of Humanness: Physicians and the
Death Penalty in the United States." Philosophy, Ethics & Humanities in Medicine 7.1
(2012): 1-4. Academic Search Premier. Web. 6 Nov 2015.