Killing Them Softly |  After a five-year de facto moratorium, the death penalty has reentered the public gaze | By Joey Bien-Kahn, City on a Hill Press

Photo by Prescott Watson.

Story updated 2/18/2011 at 4:11pm

At the end of Penny Terrace, up the hill from the state prison, there is a fence. If you stand on tiptoe, your eyes can just about scale the chain links. After scanning the sprawling prison compound, tracking the path of the Richmond Bridge as it slowly climbs out of the water, your gaze will rest upon some distant mountains, far from the prison’s walls.

But inside the facility, the bridge, the mountains and the bay disappear. Only the manic cries of seagulls that circle above the prison yard remind you that San Quentin Correctional Facility, home to California’s death chamber and its 699 condemned inmates, sits in an affluent suburban neighborhood perched upon this majestic peninsula.

The prison, a half-hour drive from downtown San Francisco, is excluded from San Franciscans’ everyday psyche. This distance mirrors California’s legislatively bound, yet mentally distant relationship with capital punishment.

In the midst of a five-year de facto moratorium, brought on by the February 2006 ruling by U.S. District Court Judge Jeremy D. Fogel, the death penalty escaped from view. But with the recent release of e-mails documenting the state’s attempts to procure a drug for lethal injection and Fogel’s impending decision whether to lift the moratorium on executions, the debate over capital punishment has reentered the public gaze.

The night of Dec. 12, 2005 was frigid, but body heat protected the mass of protesters from the chilly breeze off the bay. At 12:01 the next morning, the state planned to inject Stanley “Tookie” Williams, a convicted murderer and co-founder of the Crips street gang, with the lethal cocktail.

At first glance, Williams, a gang member and convicted killer, was a perfect candidate for capital punishment. However, his proposed execution aroused large public opposition.


Behind bars, Williams published eight anti-gang children’s books, received the president’s Call to Service Award for his community service and authored a memoir that was nominated for the James Madison Book Award, a recognition of excellence for children’s books about U.S. history.

The crowd of monks, Richmond teens, middle-aged women and many others who had gathered right outside the prison’s front gate believed that Williams’ rehabilitation would be enough to save his life. But at 12:35 on Dec. 13, while strapped to the death chamber’s pea green gurney, Williams’ heart stopped.

Elisabeth Semel, the director of the Death Penalty Clinic at the UC Berkeley Boalt Hall School of Law, said the visibility of Williams’ rehabilitation caught the public’s attention. But she said that in reality, because of their extended time on death row, all condemned inmates have in some ways changed by the time of their execution.

It takes an average of 18 years between the conviction and execution of an inmate in California, said Judge Arthur L. Alarcón in his May 2007 article in the Southern California Law Review.

“Do we kill someone who may be a totally different person than the one we sentenced to die?” Semel said. “In my experience, these guys are all different. Most of them were in their 20s when they committed their crimes and we are executing them when they are in their 40s, 50s, 60s.”

A little over a month after Williams’ execution, 76-year-old Clarence Ray Allen, the second oldest recorded inmate executed in United States history, died by lethal injection.

Then in March of 2006, Fogel made his ruling, staying the execution of convicted murderer

Michael Morales. So began California’s current death penalty moratorium, during which no California inmates have been executed.

Semel said that during moratoriums like the current one, the needless nature of capital punishment is most evident. She said that during the period from 1977 to 1992, California “piled” prisoners on death row but did not execute a single prisoner.

“If we can go that long without executing anyone, why do we need it?” she said. “It doesn’t make us safer. It doesn’t make us a more just society.”


After the 1992 execution of convicted murderer Robert Alton Harris, defense attorneys rarely were successful in receiving legal or gubernatorial commutation of their own clients’ death sentences. Appeals based on unfair trials, inadequate counsel or that the inmate had rehabilitated while behind bars were infrequently validated.

But in 2006, hours before his execution, Morales’ lawyers saved their client from lethal injection with a different course of appeal. They argued that the process, training methods and facilities used to carry out lethal injection were unconstitutional under the cruel and unusual punishment clause of the Eighth Amendment.

Execution by lethal injection includes three separate injections: sodium thiopental to render the inmate unconscious, pancuronium to paralyze the inmate and potassium chloride to stop the inmate’s heart.

Semel said that for quite some time, correctional departments had expounded the myth that the medicalized death brought on by lethal injection was a more humane method of execution. But as lawyers continued to investigate the procedure, they found evidence that due to the lack of expertise of those carrying out the executions, there was a substantial risk that the inmate could be conscious at the time the potassium chloride was administered.

“If you are not unconscious when the second and third drugs are delivered, everyone on both sides agree that the pain is excruciating,” she said. “First your body is paralyzed, which you feel, but you can’t move, because you are paralyzed. And then, when the third chemical is delivered, it’s like having your veins set on fire.”

Last September, Judge Fogel ruled that the state could proceed with executions if they and the condemned inmate agreed to death by a heavy dose of only sodium thiopental, the anesthetic. The state prepared for a Sept. 29 lethal injection of Albert Greenwood Brown, but Fogel then issued a stay of the execution, on the grounds that the courts needed more time to investigate the new procedure.

It later came to light that California’s supply of sodium thiopental expired at the end of September and that Hospira, the only U.S. company that produced the anesthetic, would not have a new supply ready until 2011.

Hospira spokesman Dan Rosenberg said that the company has since decided to cease the sale of sodium thiopental. Therefore, there are no U.S. companies that currently produce the drug. He said the company never intended the drug, most commonly used in surgery, to be part of the lethal injection cocktail.

“The drug is used for improving life,” he said. “We never condoned its use for capital punishment.”

In October, the state of California managed to purchase a large supply of sodium thiopental, initially refusing to identify their source of the drug.

Anna Zamora, policy program assistant at the American Civil Liberties Union of Northern California, said that the ACLU was troubled by the secrecy under which the state was operating.

“That raised a red flag and that led us to invoke our constitutional right of the public records act request, which we filed,” she said. “And they continued to deny the documents that we are legally entitled to as members of the public, as California residents.”

Because of the ACLU’s legal action, heavily redacted e-mail correspondences have surfaced, detailing California’s attempts to procure the drug. The state attempted to purchase the anesthetic from Texas, Arizona and even Pakistan before successfully obtaining sodium thiopental from Dream Pharma, a manufacturer in Britain.

Zamora said that the haphazard covert mission highlights the dysfunctional nature of the capital punishment system in California. Semel has graver concerns about the purchase of the non-FDA-approved, British form of the drug.

“If you are getting drugs from another country, you have no way of knowing whether the thiopental is constituted the same way as the Hospira thiopental was,” Semel said. “So it is not a specious argument. It’s a real argument, that the risk that something will go wrong is increased.”

Stephanie Faucher, associate director of Death Penalty Focus, a non-profit anti-death penalty advocacy organization, said that doctors have not been willing to participate in the execution because of the Hippocratic Oath. There have been questions about the staff’s ability to correctly inject the drugs even with the FDA approved form of sodium thiopental. She said that the execution of 76-year-old Allen exposed the staff’s lack of qualification.

“He required a second dose of potassium chloride to stop his heart, which indicates to me that there is a lack of understanding on how to use these chemicals to accomplish what they are trying to accomplish,” Faucher said.

Faulty training was one of a handful of factors that led Fogel to rule that the lethal injection protocol created “an undue and unnecessary risk that an inmate will suffer pain so extreme that it offends the Eighth Amendment.” Another concern the judge expressed in his ruling was the cramped quarters and low-lighting in the death chamber.

But over the past four years, the California Department of Corrections and Rehabilitation have taken steps to remedy the judge’s issues with the program. Along with publishing a new set of regulations meant to improve staff training on death penalty procedure, the CDCR has also recently completed construction of a new $853,000 death chamber at San Quentin.

San Quentin’s information officer, Lt. Samuel Robinson, whose pink shirt and tie clashed with the dull greens, blues and oranges of San Quentin’s staff and inmates, joked with guards and prisoners throughout our early February tour. As we walked toward the lower yard, Robinson grinned and said that though he would not say that he was surprised by Fogel’s 2006 decision, he also would not say that decision was valid. However, he said that the CDCR has done enough to quell all of Fogel’s apprehensions.

“We do believe that we have addressed all the concerns of Mr. Fogel and the courts,” he said. “And we are ready, willing and able to implement the law as it dictates.”


Nina Salarno-Ashford, executive board member of Crime Victims United of California, has been an active proponent of victims’ rights in the criminal justice system since the age of 12, when her oldest sister, Catina, was stalked and murdered before her first day of classes at the University of the Pacific in Stockton. Salarno-Ashford said the death penalty is very much a victims’ issue, because it helps victims regain faith in the legal system, which failed them at the time of the crime. She said that in many cases, an execution is the only way for a victim to truly gain closure.

Salarno-Ashford recounted an experience she had after working for and witnessing the execution of Darrell Keith Rich, who sexually assaulted nine women in 1978, resulting in four deaths, including the death of an 11-year-old girl. As she was leaving the death chamber, one of the surviving rape victims gave her a hug and said, “Thank you.” When Salarno-Ashford asked, “For what?” the victim explained that this would be the first time since the rape that she could go to sleep without worrying Rich would be released on parole and track her down to murder her.

“For these victims, it is the ultimate relief,” Salarno-Ashford said. “Everything has ended, and there is no chance of the person coming back out. From a pure victim’s standpoint, it is the greatest relief that you can give them.”

But Zamora of the ACLU argued that life without the possibility of parole granted finality without the excessive cost — both emotional and monetary — to the victim’s family and the state, respectively.

“Every victim’s family deserves a swift and certain justice, and we believe that the death penalty doesn’t do either one of those,” she said. “The cases drag on for years, thus prolonging the pain and suffering of victim’s families.”

Still, Salarno-Ashford expressed concerns about a justice system that did not include a final punishment. She said that a life without the possibility of parole sentence can always be changed to a more lenient sentence, allowing the chance for an eventual parole.

“Once the death penalty actually has been carried out, [crime victims] tend to move on with their lives,” she said. “It’s almost like they’re frozen in time, otherwise.”

Political argument for the death penalty has mainly focused upon the effectiveness of capital punishment as a deterrent against violent crime. Yet, there has been little evidence proving a correlation between the two.

UC Santa Cruz psychology professor Craig Haney, has spent many years interviewing inmates for his research on the social histories of violent convicts. Haney said that criminals rarely think of consequences while partaking in a capital crime.

“Most people who end up in capital cases either suffer from some sort of mental illness, and there is a fairly large number of those,” he said, “or they have been so damaged by the circumstances under which they have been raised and the circumstances under which they live, that they are responding and reacting to a set of pressures in their life, which undermine their ability to reflect clearly on the consequences of what they are doing.”

Haney said that legislators’ push for the death penalty was part of the same political move that led to the mass imprisonment in the country since the 1970s. He said that politicians have used the capital punishment issue as a political tool — a way to appear tough on crime.

In 1989, Haney took a statewide poll that collected information on Californians’ perspective about the death penalty. He compiled the same data in a 2009 survey.

“In 1989, 50 percent of the population considered themselves strong supporters of the death penalty, and that is down to a quarter of the population in 2009,” he said.

Haney said that, if for no other reason, Californians have begun to question the death penalty because of its excessive cost.

Because of the extra guards needed, the extended appeals process and the cost to individually house each condemned inmate, the state annually pays $100 million more than it would if it eliminated the death penalty, according to the California Commission on the Fair Administration of Justice, a group created by a California State Senate resolution.

Semel said that at a time when California continually cuts funds to the UC and other public programs, this expenditure is infuriating.

“To a state that is suffering, an extra $100 million or more a year is a significant amount of money,” she said. “And that is just in a year. This goes on every year. It is an industry, and it is an industry that is just simply not serving the people of this state.”

The recent abolition of capital punishment in New Jersey and New Mexico and the expected abolition in Illinois, pending Gov. Pat Quinn’s signature, displays a trend throughout the country.

Gov. Bill Richardson of New Mexico said in a statement after signing the bill that the inability to guarantee guilt swayed his decision.

“The sad truth is the wrong person can still be convicted in this day and age,” he said in a March 2009 news conference. “And in cases where that conviction carries with it the ultimate sanction, we must have ultimate confidence, I would say certitude, that the system is without flaw or prejudice.”

But because California’s death penalty was passed by referendum — a 1972 vote for Proposition 17 — discontinuing capital punishment is out of the legislature’s hands. Instead, the courts would have to rule executions unconstitutional or abolition would have to be passed by popular vote.

But even Semel, an ardent critic of capital punishment, has doubts about the success of abolition by referendum.

“It’s one thing to talk to people about what they think, whether they favor the alternative punishment of life without parole,” Semel said. “But it is another thing to put that in the cauldron of political fire that happens in an initiative battle, when you are talking about people spending tens of millions of dollars to sway the public.”


San Quentin Lt. Robinson walked my photographer and me to a towering barbed wire fence, through which we could see black double doors marked “East Block Condemned Row II.” He said that he could not take us in. The press had not been allowed on death row for seven years. Instead, we stood next to the gate, trying to position ourselves to sneak a glance in if the doors opened.

“Escort coming through, one time!” a guard shouted, as the metal door swung. “On the wall, gentlemen.”

On our tour, we walked through the Receiving and Release unit, where new arrivals looked past us with empty gazes. We stood by the bird-littered baseball field and watched Robinson make small talk with a passing inmate. We crossed the crowded upper yard where tattooed behemoths cut holes in us with razor-sharp stares.

Now we would finally see the worst of the worst: a man the state had sentenced to die.

But when the handcuffed prisoner emerged from between the black doors, his smallish frame and casual stroll surprised me. The condemned inmate wore glasses over concentrated, detached eyes. His black hair and beard were speckled gray.

I was taken aback as I stared at an inmate who’d been marked a monster. I had not expected him to look like a middle-aged man.


Judge Fogel toured San Quentin’s new death chamber on Feb. 8 and is set to hold evidentiary hearings in his San José courthouse in the coming weeks. He will soon decide whether the CDCR has done enough to make the process of lethal injection constitutional.

If he rules that they have, the state has everything prepared to restart its capital punishment program. With the judge’s approval, the five-year moratorium will end. 56-year-old Albert Greenwood Brown, a rapist and murderer, will be the first condemned inmate to receive a lethal injection in the new death chamber.


Driving down Penny Terrace, back toward the Richmond Bridge, you quickly lose sight of the state prison. The high walls that act as endpoints for those inside give way to a much wider horizon. While driving across the bay, it becomes easier to forget that 699 inmates, sentenced to death by our state, live on this majestic peninsula — easier to forget that San Quentin sits a world and 11 miles away from San Francisco.