Metropolitan News-Enterprise


Monday, November 24, 2008


Page 3


Court of Appeal Rejects State Lethal Injection Protocol as Invalid


By a MetNews Staff Writer


California’s protocol for carrying out executions by lethal injection is invalid because it was not enacted under the rulemaking procedures of the Administrative Procedures Act, the First District Court of Appeal ruled Friday.

The ruling upholds last year’s decision by Marin Superior Court Judge Lynn O’Malley Taylor. There have been no executions in the state since January 2006, as the method of execution has been challenged in state and federal courts.

The state revised the protocol after a federal district judge ruled in December 2006 identified several features that rendered the prior procedures unconstitutional, including improper mixing of the drug “cocktail” that is supposed to assure that the inmate dies without suffering extreme pain, and inadequate screeing of lethal injection team members.

 Attorneys from Munger, Tolles & Olson sued on behalf of two inmates, saying that state corrections officials made a deliberate and undisputed” decision to ignore the APA. Both the trial judge and the appellate panel rejected the attorney general’s argument that the protocol is not a rule of general application, and that it is exempt from the APA because it applies only to a “single facility” of the prison system.

Justice Mark B. Simons, writing for the Court of Appeal, said the fact that the protocol affects a relatively small number of inmates—there were 677 prisoners under sentence of death as of Sept. 16, according to the California Department of Corrections and Rehabilitation—does not take it outside the APA.

Citing a similar ruling on a challenge to Maryland’s lethal injection protocol, the justice reasoned that the protocol affects all member of a specific “class” of inmates—all under death sentence, except those who voluntarily remove themselves by choosing to die by lethal gas—and is therefore of general application.

In rejecting the claim that the “single prison exception” applies, Simons said “the protocol substantially governs behavior outside San Quentin,” where all executions are carried out, since it includes processes by which the warden will select lethal injection team members from other facilities if necessary. The protocol also assigns specific tasks to CDCR officials who do not work at San Quentin, the justice pointed out.

Attorneys on appeal were Bradley S. Phillips, Grant A. Davis-Denny and Eric P. Tuttle of Munger Tolles for the inmates and Deputy Attorneys General Thomas S. Patterson and Michael J. Quinn for the CDCR.

The case is Morales v. California Department of Corrections and Rehabilitation, A120115.


Copyright 2008, Metropolitan News Company