On January 11, 2006, several inmates at the state prison at San Quentin filed lawsuits under 42 U.S.C. § 1983 against the California Department of Corrections in the U.S. District Court for the Northern District of California. The plaintiffs, all of whom were scheduled to be executed by lethal injection, alleged that their constitutional rights were threatened, arguing that lethal injection was cruel and unusual punishment that violated the Eighth Amendment. They further argued that pancuronium bromide, a paralytic agent that acts as a chemical veil over the lethal injection process, disguises the pain and suffering to which a prisoner being executed is subjected, masking the constitutional violation.
On February 13, 2006, these cases were consolidated, with Michael Angelo Morales being treated as the lead plaintiff. On February 14, 2006, the U.S. District Court for the Northern District of California (Judge Jeremy Fogel) conditionally denied the plaintiff's request for a temporary stay of execution, stipulating that the stay would be granted unless the defendants certified in writing that they would either 1) use only sodium thiopental during the execution or 2) agree to obtain an independent verification by a medically qualified individual that the plaintiff is unconscious before he receives the lethal injection. Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006). The plaintiff appealed. On February 19, 2006, the U.S. Court of Appeals for the Ninth Circuit issued a per curiam denial of the appeal. Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006). The plaintiff sought review by the U.S. Supreme Court. On February 20, 2006, the U.S. Supreme Court denied the petition for certiorari. Morales v. Hickman, 546 U.S. 1163 (2006).
As the execution was about to commence on February 21, 2006, the two anesthesiologists designated by the defendants to certify that the plaintiff was unconscious declined to participate in the execution due to ethical concerns arising from their lack of understanding of certain language in the opinions that had been issued in the case. As a result of this hesitation, the execution did not go forward as scheduled. Later the same day, the District Court (Judge Fogel) again ordered the execution by lethal injection to go forward, using sodium thiopental. For reasons that are not specified in our documents, the execution was not carried out, the defendants were unwilling or unable to execute the plaintiff in accordance with the requirements of the District Court, and a stay of execution to permit an evidentiary hearing issued automatically pursuant to the District Court's order of February 14, 2006.
From September 26-29, 2006, the District Court held an evidentiary hearing to resolve the issue. On December 15, 2006, the District Court (Judge Fogel) issued an opinion holding that it would be unconstitutional to inject a prisoner who was not unconscious and ordering the defendants to review and revise their execution procedures.
On January 16, 2007, the defendants responded to the district court's order, advising the court of their intent to revise the state's execution procedures and asking the court for a protective order that would allow them to obtain accurate and candid information necessary to the revision. On March 6, 2007, the District Court denied the motion for a protective order, holding that it was unnecessary. On May 15, 2007, the State of California issued the Lethal Injection Protocol Review, a document that discussed the history and procedures involved in lethal injection, as well as necessary changes that would be made to the procedure.
On July 2, 2007, the Plaintiffs filed a third amended complaint alleging that the defendant's Lethal Injunction Protocol Review still created "a grave and substantial risk that Plaintiff will not be adequately unconscious during the execution process and, as a result, will experience an excruciatingly painful and protracted death." Accordingly, the Plaintiffs argued that the defendant's protocol represented an unconstitutional risk of severe pain.
On April 16, 2008 , the United States Supreme Court decided Baze v. Rees. In that case, the Court upheld Kentucky's lethal injection protocol as constitutional. Significant to the case at hand, the Kentucky protocol utilized the same three-drug cocktail as California's amended protocol does. The Court established that to show an 8th amendment violation, a plaintiff must prove that a State's lethal injection protocol "creates a demonstrated risk of severe pain. [They] must show that the risk is substantial when compared to the known and available alternatives." The Court found that Kentucky's protocol did not violate this standard. Moreover, the plurality opinion held that "a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard."
On October 8, 2010, the Plaintiffs filed their fourth amended complaint again alleging that the defendant's Lethal Injunction Protocol Review "will subject them to present demonstrated substantial risks of inflicting tortuous pain and suffering under the Eighth Amendment." Furthermore, the Plaintiffs contended that "Defendants' continued use of their three-drug procedure when tested, available alternatives exist establishes that the demonstrated risk of severe pain by Defendants' process is substantial when compared to the known and available alternatives. Defendants have refused to adopt such alternatives in the face of these documented advantages, without any legitimate penological justification for their continued retention of the three-drug protocol."
On October 25, 2010, the Defendants filed a motion to dismiss for a failure to state a claim. The defendants argued, "plaintiffs failed to state a claim for a facial challenge to California's regulations because the regulations are substantially similar to or exceed the regulations approved by the United States Supreme Court in Baze." Moreover, the motion argued, "Plaintiffs have not alleged facts sufficient to state a claim that, as written, California's regulations will necessarily subject Plaintiffs to a substantial risk of serious harm, where serious harm means severe pain." However, the defendants did not challenge the plaintiffs as applied challenge.
On December 10, 2010, the United States District Court for the Northern District of California issued an order denying the Defendants' motion to dismiss for a failure to state a claim. Given the defendants' burden at the motion to dismiss stage of the litigation, the court was unwilling to find that the plaintiffs had failed to state a claim. However, the court made clear that it "intends to monitor closely the scope and pace of any additional discovery so that the merits of Plaintiffs' claims can be adjudicated promptly."
On June 19, 2013 the District Court for the Northern District of California granted the plaintiff's motion to intervene and to stay execution for an additional plaintiff. On September 17, 2013 the Court granted another motion to intervene for two more plaintiffs.
On November 7, 2014, the Criminal Justice Legal Foundation filed a lawsuit called Winchell & Alexander v. Beard against the California Department of Corrections and Rehabilitation (CDCR) in Sacramento County Superior Court. The plaintiffs were two individuals whose family members had been murdered by inmates currently on death row who are plaintiffs in Morales v. Hickman. The plaintiffs in Winchell & Alexander argued that as relatives of the victims they had been denied justice by the continued delays of the executions. This case was settled on June 2, 2015 when CDCR agreed to promulgate a single-drug lethal injection regulation within 120 days after the U.S. Supreme Court issued its opinion in Glossip v. Gross. See the CJLF's website
for more information.
On June 29, 2015 the U.S. Supreme Court ruled in Glossip v. Gross that the sedative midazolam may be part of the lethal injection protocol. 135 S. Ct. 2726 (2015).
On October 27, 2015 CDCR submitted its notice of proposed adoption of lethal injection regulations to the Office of Administrative Law for publication in the California Regulatory Notice Register, pursuant to the settlement in Winchell & Alexander v. Beard. According to California's Department of Corrections and Rehabilitation's website
, the notice was published in the register on November 6, 2015. The proposed regulations would change the death penalty protocol from the three-drug cocktail to a single drug.
In a new setback to efforts to restart executions in California, the state's Office of Administrative Law (OAL) has rejected the new lethal injection protocol proposed by the California Department of Corrections and Rehabilitation. On December 28, 2016, the OAL, which is responsible for reviewing regulatory changes proposed in California, issued a 25-page decision of disapproval, citing inconsistencies, inadequate justification for certain parts of the proposal, and a failure to adequately respond to public comments. The agency gave the Department of Corrections four months to address problems in the protocol. See the Death Penalty Information Center website
As a result, this case is ongoing. Justin Benson - 02/05/2012
Anna Jones - 03/28/2016
Abigail DeHart - 11/04/2016