Thursday, June 17, 2010
Victims’ Rights Group Blasts Continuing Hold on Executions
By STEVEN M. ELLIS, Staff Writer
A crime victims’ rights advocacy group yesterday blasted the California Office of Administrative Law for disapproving proposed regulations that would allow the state to resume executions, and asked that Gov. Arnold Schwarzenegger adopt them anyway.
The Sacramento-based Criminal Justice Legal Foundation said that a current moratorium breaches the constitutional right of crime victims to a “prompt and final conclusion of the case and any related postjudgment proceedings,” added by Marsy’s Law.
The CJLF urged the governor to adopt the regulations, which were proposed by the Department of Corrections and Rehabilitation, by the end of the month under an emergency exception to the Administrative Procedures Act in the Penal Code.
The OAL last week disapproved of the proposed regulations, concluding they were variously inconsistent with state law, unclear and unaccompanied by a statement of necessity, in addition to other APA violations.
Director Susan Lapley in a June 8 decision said the regulations would allow news media and others to witness executions despite specifically being excluded by statute, and could possibly cut short the statutory time period for physicians who treat mental disorders to complete pre-execution reports.
State law allows a warden at an execution to invite—in addition to the attorney general, the victim’s family, spiritual advisors, department employees and family members of the condemned—at least “12 reputable citizens.” However, Penal Code Sec. 3605(a) specifies that “no other persons than those specified in this section may be present,” and Lapley said a provision in the regulation allowing for the presence of news media and others, in addition to the “12 reputable citizens,” violated the statute.
She also said the regulations left a number of procedural issues unclear, and faulted them for not including an explanation as to their necessity, specifically a provision that distinguished between state-employed chaplains and non-state-employed spiritual advisors. The proposed regulations allow the former to perform spiritual functions at the inmate’s cell front, but the latter may only do so as visitors in the prison’s main visiting room.
‘Pointlessly Severe’ Review
CJLF Legal Director Kent Scheidegger, in a letter to Schwarzenegger and Department of Corrections and Rehabilitation Secretary Matthew Cate, called the office’s review “pointlessly severe” and criticized its focus on “minor details.”
Referring to Lapley’s distinction between the news media and the “reputable citizens,” he said the decision “amounts to an abuse of the process to delay enforcement of the death penalty.”
“The process has already been held up too long, and it’s not worth holding it up any longer.”
California’s death penalty is carried out at San Quentin and involved use of three intravenously-injected chemicals until 2006, when it was put on hold after a federal court examining the case of Michael Morales found that there was evidence the procedures governing executions did not function as intended and might constitute cruel and unusual punishment. Morales is on death row for the 1981 murder of 17-year-old Terri Winchell, who was strangled, beaten, raped and stabbed.
In 2008, the U.S. Supreme Court ruled that Kentucky’s use of the same three chemicals did not constitute cruel and unusual punishment. However, that same year Div. Five of the First District Court of Appeal ruled in Morales v. California Department of Corrections and Rehabilitation 168 Cal.App.4th 729 that San Quentin’s procedures should have been adopted pursuant to the Administrative Procedures Act.
Scheidegger said regulations that would allow executions to resume have been “bogged down in the administrative process” for over a year as a result of Schwarzenegger’s decision not to appeal the latter holding, and he urged the governor to exercise his authority under Penal Code Sec. 5058.3(a)(2) to put the regulations into immediate effect.
The statute allows the Department of Corrections and Rehabilitation to adopt regulations immediately if the director files “a written statement…that operational needs of the department require adoption, amendment, or repeal of the regulation on an emergency basis.”
Pointing to Morales, Scheidegger wrote:
“There is no question regarding the guilt of this murderer. The judgment has been reviewed and affirmed by several courts, yet the victim’s family continues to wait for justice because the process is stalled in bureaucracy.”
A spokesperson for Schwarzenegger told the MetNews the state “is working to comply with court orders to resume lethal injections,” but declined further comment.
Representatives of the Department of Corrections and Rehabilitation declined comment.
Under the OAL decision last week, the department has 120 days to resubmit revised regulations, which must be available for at least 15 days of public comment to the extent they make other than non-substantial or solely grammatical changes.
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