SAN FRANCISCO - For almost five years, the State of California has engaged in a protracted legal battle over its method of execution: lethal injection. During this time period, executions in California have been on hold. Now, the state is rushing to carry out an execution next week, even though none of the legal questions have been answered.

“There are still three pending lawsuits that challenge the lethal injection regulations—but the state moved forward with setting an execution anyway,” said Professor Ellen Kreitzberg who runs the Death Penalty College at Santa Clara Law School. “These legal questions cannot be resolved in a week. Why is the state rushing ahead, before the courts have had a chance to consider these important issues?”

“The stakes are too high and there are too many uncertainties to continue,” Natasha Minsker, Death Penalty Policy Director at the ACLU of Northern California said. “For almost five years, courts have issued rulings stating that public concerns and serious problems with the process must be addressed before executions proceed. That has still not happened. Now the state is simply trying to rush forward, and skip judicial review altogether.”

Because of past problems with executions, U.S. District Court Judge Jeremy Fogel ruled in February of 2006 that the execution of Michael Morales could proceed only if the California Department of Correction and Rehabilitation (CDCR) had a doctor present during the execution, or they used only one drug rather than the traditional three drug combination. The CDCR was not able to comply and the execution was stopped. Governor Schwarzenegger agreed to revise the procedure, but did so in secret and the state continued to insist on using the problematic three drug combination. A state court later held that the CDCR needed to reconsider the regulations, allowing for the public to be heard in the process.

Nearly 30,000 Californians objected to the new regulations during a 14 month public comment process. The objections ranged from problems with the three drug combination that the state still intends to use in the execution process; denial of the media’s right to witness all aspects of the execution, in violation of the First Amendment; and concerns over whether the religious rights of the person to be executed would be protected. None of these problems have been addressed.

Despite these on-going legal battles, the state requested an execution date for September 29th.
A recent Associated Press article has quoted Judge Fogel saying, “There is no way any court can conduct an orderly review of constitutional claims in eight days.”

“Executions should not be allowed to resume while serious problems with California’s dysfunctional death penalty system still exist,” said Stefanie Faucher, Associate Director of Death Penalty Focus. ”Public safety and the needs of the victims would be better served if we replace the death penalty with life without possibility of parole and required prisoners to work and pay restitution to victims.”

We have no budget, no money for child care centers and college students, and no hope that these problems will be solved anytime soon. But take heart California, what we do have is a state-of-the-art death chamber. And soon we will have the best and brightest death row housing facility. Can anyone in Sacramento say '''priorities'?

On September 22, '''Day 83 Without a Budget,' the Governor revealed a brand new execution chamber. This was his latest leap into the budgetary black hole that is the death penalty.

While state employees have been furloughed, the inmates at San Quentin have been hard at work building the new facility to replace the rigged-up gas chamber they had been using. After a judge ruled it was too small and poorly lit to put people to death without risk of serious error, the new one boasts such improvements as a room with lights.

Its price-tag? A mere $853,000.

A few weeks earlier, back on '''Day 41 Without a Budget,' the Governor '''borrowed' $64 million from the state's general fund, to be paid out of our still non-existent state budget. That money will be used to begin construction of the new death row housing facility, which in the end will cost $400 million to build. That breaks down to about a half a million dollars per cell. The facility is being designed to hold 1,400 inmates'''twice the number of people currently on death row. That's because the government knows that almost everyone sentenced to death in California will not actually die in the shiny new execution chamber. In fact, almost all will die of natural causes, just like they do now.

The Attorney General's office claims we will use San Quentin's brand new, well-lit execution facility next week, on '''Day 91 Without a Budget,' to execute Albert Brown. But with three on-going legal challenges to the lethal injection procedures, legal experts doubt the execution will actually take place.

Mr. Brown has been on death row for 28 years. Based on averages of the costs of death penalty trials, state-level appeals, and housing in San Quentin, the ACLU estimates his case has cost California $4,788,750 over and above the cost that would have been incurred if Mr. Brown was sentenced to life without the possibility of parole.

Many people hear that and reason we could reduce the cost by decreasing the time spent on death row ''' after all, if he wasn't on death row for 28 years, he couldn't have racked up that $4 million dollar bill, right? Unfortunately not. In fact the reverse is true: speeding up the system would only cost more money. The California Commission on the Fair Administration of Justice concluded we would need to pay at least $95 million more per year to speed up the death penalty and increase its efficiency. That finding was agreed upon unanimously, by death penalty advocates and opponents alike.

Why? Because the bottle-neck in death penalty cases isn't too many appeals or sympathy for death row inmates, it's the same thing that bottle-necks every other bureaucratic enterprise on earth: money. Currently, a person sentenced to death waits an average of five years before an attorney is even appointed for appeal and 10 years before the first appeal is actually heard in court. Faster appointments

and hearings can only be accomplished by hiring more attorneys and court staff. In short, by spending more money.

While state employees prepare for an execution in between their furlough days, millions of dollars are sucked into California's machinery of death. Every state program is facing drastic budget cuts, from education to health care to law enforcement, but we can still scrape together more than $800,000 for a state-of-the-art, well-lit killing chamber and remain on track to spend $1 billion on the death penalty in the next five years.

A safe and cost-effective alternative exists that can still salvage California from these absurd priorities. By cutting the death penalty and converting the sentences of more than 700 death row inmates to life without parole with work and restitution to the victims, we can save $1 billion in five years without releasing a single prisoner. Permanent imprisonment is swift and certain justice that keeps the public safe without sucking the budget dry.

The 9th Circuit's decision to rehear our case addressing the religious liberty of a Muslim woman forced by Orange County Sheriff's Department officials to remove her headscarf in front of strangers is a most welcome development.

We seemingly lost the case back in May, when a panel from this very same appellate court ruled, by a 2-1 vote, that the courthouse holding facility where our client was held did not meet the standard as defined by the Religious Land Use and Institutionalized Persons Act.

That had us deeply worried about the impact on religious freedom. By that logic, the county would be required by law to protect a person's religious rights while detained in a jail, but not when the same person was transported to and held in the holding facility of a courthouse before and after making court appearances. This would be an absurd result.

The facts: In 2006, Souhair Khatib, then a 33-year-old U.S. citizen, twice appeared at the Santa Ana Courthouse. While held in the courthouse holding facility for about 7.5 hours, county sheriff's deputies, who staff the facility, forced Khatib to remove her headscarf due to so-called security issues. A devout Muslim who incorporates the use of a hijab as part of her religious practice, she believes she may not be uncovered in front of men who are not related to her. But in the crowded holding facility of that courthouse, that's precisely what she was forced to do, her pleas for understanding falling on deaf ears.

Khatib was deeply shaken by the experience, describing it as defiling and humiliating.

The sheriff's department has no policy accommodating religious clothing. This is surprising , considering the U.S. Department of Justice not only has a policy but expressly permits Muslim women to wear their head coverings as part of their religious practice. So does the state department of corrections. If the feds and the state can accommodate the religious liberties of detainees within the system, there's no reason Orange County can't do the same.

As Judge Alex Kozinski noted in his dissenting opinion back in May:

Freud is reported to have said that sometimes a cigar is just a cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners held in certain kinds of institutions'''defined to include both correctional facilities (such as prisons and jails) and pretrial detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me.

For us, too.

The court's decision to rehear the case before an 11-judge panel is a significant turning point. Our suit remains the first of its kind to deal with a courthouse holding facility. We know the outcome can affect a wide range of people struggling to maintain their religious rights. We look forward to the issue receiving the full hearing it deserves.