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Is capital punishment dead in California?

Clarence Ray Allen, executed by lethal injection Jan. 17, 2006.
Clarence Ray Allen, executed by lethal injection Jan. 17, 2006. The Associated Press

Clarence Ray Allen was the 13th man to die in San Quentin’s death chamber since California resumed executing inmates in 1992.

His Jan. 17, 2006, execution was also the last one conducted in this state. Since then, 52 other death row residents have died of old age, suicide or natural causes, but not one has made the short walk from the pre-execution holding cell to the $835,000 lethal injection chamber that was completed in 2010 but never used.

And it’s uncertain if they ever will, despite the state’s announcement last week that it will develop a new drug formula for putting people to death.

Today, California has 750 condemned prisoners – up from 646 after Allen, 76, was killed.

Legal challenges and a shortage of the three drugs used in the state’s current execution formula have kept anyone from being executed since Allen. But death penalty advocates who sued in Sacramento Superior Court in 2014 won a critical settlement last week when the state agreed to develop a new method for lethal injection executions that would use just one drug.

The state said it would develop the one-drug policy this year, leading death penalty advocates to predict the executions eventually will resume.

But opponents of the death penalty say it will take more than drawing up a new procedure to restart executions in California, as there are many legal obstacles the state must overcome.

“I would say it’s going to take another three to five years to execute anyone,” said Sacramento defense attorney Don Heller, an outspoken opponent of capital punishment who campaigned in 2012 for a failed effort to abolish California’s death penalty.

Other death penalty opponents say they doubt any more prisoners will be executed at all, as more voters turn against the practice and they continue to challenge the state in court at every turn. They note that a growing number of states – seven since 2007 – have abolished the death penalty. Nebraska, traditionally a conservative state, scrapped it last month, becoming the 19th state to not use capital punishment.

Currently, 17 inmates on death row are believed to have exhausted all appeals and be eligible for execution. But the state lacks a court-approved way to kill them.

The settlement announced last week calls for the state to develop a new execution method within four months of a decision by the U.S. Supreme Court in a pending Oklahoma lethal injection case. That case involves a challenge by Oklahoma death row inmates over that state’s use of midazolam, one of three drugs in its execution protocol that they contend is unconstitutional because it may not prevent them from feeling tremendous pain during the process.

A decision from the nation’s highest court in that case is expected by the end of June, meaning the state could submit its proposed policies before the end of this year to California’s Office of Administrative Law, which must approve new regulations.

Judging from history, the approval process is unlikely to go quickly.

In December 2006, after a federal judge ruled that the state’s three-drug execution protocol risked causing pain to an inmate that would constitute “cruel and unusual punishment,” the state began preparing changes to make its injection procedures meet judicial approval.

That effort took years. The new lethal injection regulations took effect Aug. 29, 2010, but were never put to use because court challenges continued to block them.

Death penalty advocates say there is no legitimate reason for the delays, and note that some other states routinely put inmates to death.

“The bottom line is, there is no inherent problem with enforcing the death penalty,” said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, the Sacramento-based group that filed the lawsuit to force the state to move forward with rewriting execution policies.

Scheidegger notes that other states have been able to draft policies that have allowed executions to continue for years, including ones conducted with a single drug, as California proposes. The new method would replace California’s previous lethal injection regimen that relied on three drugs, one to sedate the inmate, the second to paralyze them and halt breathing, and the third to stop the heart.

Shortages of such drugs caused by drug producers not wanting to sell them to states for use in executions have resulted in some states shifting to a single-drug method.

Even with that, death penalty opponents say, obtaining the drugs will continue to be difficult for states.

Fifteen inmates have been executed in other states so far this year, 13 of them with a single-drug protocol, according to the nonprofit Death Penalty Information Center, which compiles data on executions nationwide.

Death penalty opponents promise to fight any attempt to resume executions in California, regardless of what drug formula is used.

“All past attempts to create a legally sound execution protocol have failed, and this one will fail, too,” said Ana Zamora, criminal justice policy director for the American Civil Liberties Union. “It will result in more legal challenges, more delays and cost more money.”

A 2012 ballot measure to abolish California’s death penalty came close to passing – it failed 52 percent to 48 percent – and a 2014 Field Poll found that support for capital punishment had fallen to its lowest level in 50 years, with 56 percent in favor of keeping it, 34 percent opposed and 10 percent undecided.

Supporters of abolishing the death penalty will not say whether they have another ballot measure planned for the future.

“It’s really too early to say, but all options are being explored,” said Zamora.

Heller, who wrote the 1978 ballot measure that reinstated capital punishment in California before he changed positions on the issue, said he believes there are efforts “in the very early stages” to take another run at asking voters to abolish the death penalty, and he declined to say whether he had been approached to help.

He added that he believed the last attempt failed because the measure called for all existing death sentences to be commuted to life without possibility of parole. In the weeks leading up to the election, he said, that gave death penalty supporters a chance to highlight the crimes committed by some death row inmates and sway voters.

“I think that was a deciding factor in its defeat,” Heller said.

There will be no shortage of candidates for such highlights if another campaign is waged. California has, by far, the nation’s largest number of condemned inmates, nearly one-quarter of the more than 3,000 nationwide, and a list that includes 21 women housed at a state prison in Chowchilla.