Law Faculty With Opinions

Santa Clara University School of Law Professor Allen Hammond co-authored an op-ed about broadband that appeared in the September 27^th issue of the San Jose Mercury News.  The Mercury News also published Professor Tyler Ochoa’s op-ed about trademark issues on October 1^st.  On October 6th the Daily Journal ran Professor Ellen Kreitzberg’s opinion piece about the lethal injection hearings.

To read Professor Hammond’s article go to: 

http://www.mercurynews.com/mld/mercurynews/news/opinion/15618850.htm

To read Professor Ochoa’s article go to:  http://www.mercurynews.com/mld/mercurynews/news/editorial/15654172.htm

See below for Professor Kreitzberg’s article.

Tinkering with the Machinery of Death

For a week in September, a federal courtroom in San Jose was filled with talk of death. It was not a philosophical discussion, but a legal one. There was no discussion of the morality of the death penalty, only the implementation of it. For parts of five days, Judge Jeremy Fogel held hearings on the constitutionality of lethal injection procedures. The testimony was limited to the process of execution; the system, procedures and protocols the state follows when putting inmates to death.

I listened to witnesses provide their insight into the most humane way to kill another human being. The judge inquired and a witness distinguished the difference between a feeling of agony (a sensation from suffocation or drowning) and one of excruciating pain (more of a burning sensation). Experts testified about clinical trials that studied the effect of barbiturates on primates and how those results inform our ability to kill what was referred to as a “large 150 pound primate.” Doctors testified to their ethical obligations to “First, do no harm” For many, the Hippocratic oath meant not only staying out of the execution chamber, but out of the execution business. Others believed they were allowed to consult with the governor and government lawyers on the effects of possible drug protocols. At times during these chilling, yet antiseptic discussions, I wondered whether the hearings were part of Kafka short story or a Fellini movie.

The issue before the Judge is a narrow one. The court must examine the state procedures to determine whether they are unconstitutional; whether the procedures create an unnecessary risk of excruciating pain. Despite disturbing evidence to the contrary, the state maintains that no changes in the procedures are necessary.

            The California lethal injection procedure is set out in Protocol 770. It provides for a three drug “cocktail”. The first drug, sodium thiopental, is a sedative meant to induce sleep. The second, pancuronium bromide, paralyzes the inmate (rendering the inmate unable to react, communicate or exhibit any feelings, sensations, or discomfort). The third drug, potassium chloride, stops the heart.

It is the paralytic agent that has generated the most controversy. It is a drug that masks any pain and precludes communication by the inmate of any information even if the other drugs fail to work as expected. Although there was no compelling medical explanation offered for its use, one advantage was clear. Pancuronium would insure that each death was more palatable to the public as it would preclude any “death rattle,” shuddering, jerking, or cries for help.

Protocol 770 also provides that no team member should be addressed by name. It further requires that no comments or questions should be made that require an oral response. If an execution breaks down, no communication is possible to alter the practiced procedure. The execution of one inmate proceeded without the use of one of the IV lines that, unbeknownst to the warden or team leader, had never been attached. There was no way the team member could communicate this failing.

            Serious questions were raised about the selection, training, and preparation of the execution team. One witness described the team as “doing the best they could within a dysfunctional system- one that fails to provide them with the proper goals, support, guidance or training”. We learned that the selection of some members of the team was done by a team leader without the benefit of review of personnel files or other information that might have made a more informed decision. Although participation in an execution is consistently described as “the most stressful job at the prison”, at least one member of the team had been previously diagnosed as suffering from post-traumatic stress disorder from his work at the prison.

The knowledge of team members and the failure to monitor all aspects of their participation raised concerns. Interviews with different team members disclosed that they disagreed as to the amount of drugs required to be dispensed, did not understand the nature of the drugs they were using, and had failed to read the execution protocol. Drugs for the execution were dispensed to team members without any accounting for their use or return, raising questions as to the whereabouts of numerous vials of barbiturates. The team did not practice, plan or attempt to anticipate problems that might occur during the execution. No contingency plans were created in case of failures at different stages of the execution.

There is an established culture and tradition of the executioner’s hood to protect the anonymity of those involved in the process. But we need to be certain that this secrecy does not contribute to an unsafe environment. The team members gather in the antechamber and all lights are extinguished except for one small red bulb. Despite the fact that the team is behind one way glass, this added procedure is thought necessary to preserve anonymity. One team member described handing a syringe of lethal drugs to a hand that emerged from the crowd in the anteroom without ever being able to see to whom it was being given. The required silence precluded any ability to ask or confirm verbally to whom it was given. Why does San Quentin insist on anonymity even at the risk of exacerbating an already difficult procedure? Was it secrecy, in part, that contributed to the failures by the institution to properly train or prepare its employees for the daunting task?

There is little question that whatever the outcome of these hearings, this will not be the end of the death penalty in California. Society has shown that when a constitutional challenge emerges, technology and ingenuity allows us to “build a better mousetrap” and continue with “business as usual”. The flaws brought out in these hearings, however, should provide us pause to step back and examine the process further.

As I reflect on these hearings, I recall a conversation I had several years ago with Don Cabana, the former warden at Parchment state prison. Cabana, who presided over several executions, described how the experience affected him emotionally and physically. He recalled how, after each execution, he would go home and shower and scrub—trying to rub off something he could not exactly identify. He said that while the people of Mississippi were sleeping, he was killing someone in their name. Eventually, it drove him to leave corrections work.

The State of California continues to support and promote executions. But we relegate the “death work” to a small, untrained group of prison guards and administrators who are ill equipped to deal with all that is involved. They are not medical technicians, yet we expect them to administer drugs, monitor anesthetic depth and supervise IV lines. They are not psychologists, yet we require them to accompany a person in his last minutes of life. They are not religious leaders, and yet we place them in a position of great moral ambiguity. We expect them to carry out our killing while the rest of us sleep.

Although we struggle to find a more efficient and more humane method of execution, we continue to ignore the many touchpoints where human beings interact with the process. Like a well worn quilt, we try to patch a practice that is troubling on many fronts. In the name of societal justice, we kill our prisoners but we are uncomfortable with the process of execution. Perhaps, as Justice Blackmun suggested many years ago, we should begin to examine whether the death penalty experiment has failed and whether we should continue to tinker with the machinery of death.