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It's been 6 1/2 years since California's last execution, and nearly that long since a federal judge suggested that the state replace its challenged three-drug sequence with a single, fatal dose of a powerful anesthetic - a change that prosecutors in Los Angeles are now demanding in a potentially precedent-setting case.
When U.S. District Judge Jeremy Fogel of San Jose first raised the issue in February 2006, all 37 states with lethal-injection laws used the same formula: an anesthetic to render the prisoner unconscious, a second drug to paralyze the muscles and a third to stop the heart.
The second and third drugs can cause excruciating pain if the anesthetic fails, something Fogel suspected may have happened in several past executions. So, he asked, why not eliminate those problematic drugs and instead increase the anesthetic to a lethal dose?
The state's response was: Yes, we could, but why bother? A one-drug execution has never been tried, the prisoner would take longer to die, and the current method is widely accepted as humane, effective and constitutional.
The judge was unpersuaded. After unsuccessful attempts to impose conditions for one-drug executions or put doctors in the death chamber, Fogel ordered a halt to lethal injections until California made improvements in staff training, facilities and administration of the drugs.
That hasn't happened yet, at least not to the satisfaction of Fogel or U.S. District Judge Richard Seeborg, now assigned to the case. But now, with the action in Los Angeles, that could change.
In December, a Marin County judge issued a separate order against executions after finding that prison officials who rewrote the lethal-injection rules had violated state laws in several ways - including their failure to explain their insistence on using three drugs instead of one.
Meanwhile, five states have switched to one-drug executions and four more are planning to do so. And closer to home, Los Angeles County District Attorney Steve Cooley has asked a Superior Court judge to order two condemned prisoners, Mitchell Sims and Tiequon Cox, executed by single-drug injections.
If California retains its death penalty law - a question voters will decide in November when they consider Proposition 34 - the next question for the courts will be how executions are carried out.
As state lawyers have pointed out, the Los Angeles prosecutors are trying to sidestep not only the court injunctions but also the California Department of Corrections and Rehabilitation's legal authority over sentencing.
"No statute or court rule permits this court to exercise authority over CDCR in a criminal case to inquire about certain lethal-injection methods, and to potentially dictate a particular method," state lawyers said in papers filed with the judge.
Upholding 3-drug method
The department said it would continue to defend its three-drug procedures in court while also, at Gov. Jerry Brown's direction, looking into the alternative of a one-drug execution.
But prosecutors contend the state is effectively nullifying the death penalty law by resisting an immediate switch to a single drug.
The state's defense of three-drug executions is futile, said Michele Hanisee, a deputy district attorney in Los Angeles, because one of the drugs, the paralytic chemical pancuronium bromide, is running low nationwide and is no longer being made in the United States.
She said the state's lawyers have agreed to a lengthy schedule in the federal court proceeding.