Executions on Hold Over Bungled Rulemaking

California’s death penalty regulations are in trouble again, putting executions by lethal injection back on hold.  The First District Court of Appeals found the state regulations failed to comply with the state Administrative Procedures Act Thursday and had to be invalidated “in their entirety.”

The decision upends the state’s latest version of its lethal injection procedures, crafted two years ago in response to a failure to use the APA to create the rules.

The Department of Corrections ran afoul of the rules by failing to tell the public when officials opted to retain a controversial three-drug cocktail for lethal injection, instead of switching to a single-drug option used in other states.

Executions have been on hold in California since 2006, after inmates challenged execution procedures in state and federal court.

U.S. District Judge Jeremy Fogel ruled in 2006 that the state protocol violated the Eighth Amendment’s prohibition on cruel and unusual punishment.  The state revised the rules in 2007 to cure the problem.

But later that year, condemned inmates sued in Marin County Superior Court saying any new procedure must be adopted through the public regulatory process under the APA, rather than as an agency operational procedure, as the state had done.  The court agreed and so did the appeals court in 2008.

The state went back to the drawing boards with a new public process and received nearly 30,000 letters and emails from the public.  During a six-hour public hearing in 2009 more than 100 people spoke abut the proposed regulations.

In 2010, Dept. of Corrections and Rehabilitation (CDCR) approved new, modified rules, but again was sued.  That suit is the subject of Thursday’s appellate decision.

“The CDCR admitted below, as it does here, that it did not actually comply with many of the requirements of the APA that respondents claim constitute a substantial failure to comply,” wrote Justice J. Anthony Kline.

The trial judge in Marin permanently blocked executions until the state comes up with regulations that comply with APA.  The appeals court agreed.

“The failure to forthrightly discuss alternatives to the three-drug method was particularly significant… because many who commented upon the proposed regulations had claimed that use of pancuronium bromide was unnecessary, dangerous and created a risk of excruciating pain,” he wrote.

CDCR also failed to make complete rulemaking file available for public inspection in a timely manner, the court found.

Joining Kline in the opinion were Justices James Lambden and James Richman.

Case:  Sims v. Dept. of Corrections & Rehabilitation, No. A1235290