Metropolitan News-Enterprise


Monday, June 3, 2013


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C.A. Rejects State’s Latest Rules for Resuming Executions


From Staff and Wire Service Reports


Corrections officials made several “substantial” procedural errors when they adopted new lethal injection rules, the First District Court of Appeal has ruled in a decision that could further delay a resumption of executions in California.

The panel Thursday agreed with Marin Superior Court Judge Faye D’Opal that the California Department of Corrections and Rehabilitation failed to explain, as required by state law, why it was insisting on a three-judge protocol, rather than switching to a single drug that might be equally, or more, effective.

Presiding Justice J. Anthony Kline also wrote for Div. Two that the department misled the public instead of providing the documents and information it used to reach its decision.

California has not executed an inmate since 2006, when a federal judge halted the practice, finding that the three-drug mixture amounted to cruel and unusual punishment. The state’s first attempt at adopting a new three-drug protocol failed when the Court of Appeal ruled in 2008 that the CDCR had to use the Administrative Procedure Act’s formal regulatory approval process, rather than the simpler agency operational procedure.

The department then adopted formal regulations after hearing and public comment, but the Office of Administrative Law rejected the effort in 2010, saying they failed the APA’s requirements of clarity, consistency, and necessity, as well as various procedural strictures. After further notice and comment, the regulations were resubmitted, and were approved by the OAL in July 2010.

After three death row inmates challenged the regulations, D’Opal rejected their motion for summary judgment on the claim that one of the three drugs, pancuroniam bromide, which paralyzes the body’s voluntary muscles, was unnecessary and increased the risk that the condemned would suffer “excruciating pain.” The judge said there was substantial evidence that the drug, which has been used in other states as part of a three-drug protocol, would bring about rapid death without undue suffering.

The jurist did, however, agree with the inmates that the department had committed significant and prejudicial violations of the APA and granted summary judgment invalidating the regulations in their entirety.

Kline, writing for the Court of Appeal Thursday, said the trial judge was correct. He rejected the CDCR’s argument that any defect in the hearing process was harmless because of the level of public participation.

“A hearing is ... meaningful only if the interested public has timely received all available information that is relevant to the proposed regulations, accurate, and as complete as reasonably possible,” Kline wrote. “The public that participated in the CDCR’s rulemaking process was not so fully informed.”

The agency argued that it responded to more than 29,000 public comments and a lengthy public hearing on the matter during which 102 people provided comments as proof that it complied with state law in making the new regulation.

Kline did not agree.

“As we have seen, the 102 people who attended the ... hearing and the 29,416 who submitted written comments were not made aware (or timely made aware) of much of the information relied upon by the CDCR in proposing the three-drug protocol, and were, in fact, misled about this,” Kline wrote.

Last year, Gov. Jerry Brown ordered prison officials to explore using a single drug, as some other states do, which could reduce the risk of suffering by condemned inmates.

Corrections spokeswoman Deborah Hoffman told The Associated Press in an email that the agency was reviewing the ruling. “In the meantime, at the governor’s direction, CDCR is continuing to develop proposed regulations for a single-drug protocol in order to ensure that California’s laws on capital punishment are upheld,” Hoffman said.

CDCR says there are currently 733 inmates on death row in California.

The case is Sims v. California Department of Corrections and Rehabilitation, 13 S.O.S. 2786.


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