California Judge Invalidates Execution Protocol

Marin County Superior Court Judge Faye D'Opal has invalidated California's new execution protocol for multiple failures to comply with the Administrative Procedures Act, including a consideration of the alternative one drug method used elsewhere (and proposed in public comments to the changes.) Six years ago, a federal court in California invalidated the three drug protocol, finding it could constitute cruel and unusual punishment. The state decided to come up with new protocols, for which it had to comply with the Administrative Procedures Act.

D'Opal said...that the state's failure to consider replacing the former execution practice with a single-injection method violated state law and ignored the courts' and public criticism of the previous protocols.

The case is Mitchell Sims vs California Department of Corrections Rehabilitation, et al, case number CIV 1004019. I've uploaded the ruling here. [More...]

It looks like the Department tried to pull a fast one and was called on it by the Judge. It initially claimed it didn't examine the one drug protocol because the Supreme Court had already determined in Baze v Kentucky that the three drug cocktail was not unconstitutional. It wrote in its initial brief:

As an integral part of the review, the CDCR considered alternatives to the existing three-chemical process, including a one-chemical process. Additionally, in developing this proposed regulation, the CDCR was guided by the United States Supreme Court’s decision in Baze v. Rees (2008)...

The judge said that was "patently false" as the decision to adopt the three-drug protocol was decided in May 2007, before the decision in Baze v. Rees (2008). The Department then conceded it was wrong in using Baze v. Rees as an excuse, and admitted that Governor Schwarzenegger had approved the new three drug protocol in 2007.

It also failed to substantiate that it considered the one-drug method.

There were other deficiencies. There was no inclusion of the cost of the new execution protocols as required by state law.

The judge noted that former San Quentin Prison Warden Jeanne Woodford said each execution costs the state between $70,000 and $200,000 in overtime for staff, crowd control, training, security and other expenses associated with carrying out lethal injections.

The judge also said prison officials failed to reply to the public comments as state law mandates before adopting the new protocols. Nor did they properly notify the condemned 720 inmates of the new procedures.

In addition, the judge questioned the need for some of the protocols, such as requiring unit staff to monitor the inmate every 15 minutes and document their findings for five days before the execution, or to remove all property from the inmate's cell, or to impose waist restraints during visits.

The judge concludes:

These defects infect the entire regulatory scheme, and the lethal injection administration and protocol, as a whole, is declared to be invalid.

The case was assigned to Marin County because San Quentin is located there.

After six years, California's death penalty system remains broken. As for where it goes from here:

Prison officials would either have to appeal or again revise their lethal injection procedures and submit them to public comment, a process that took more than a year last time.

Or, they can just give up and end the death penalty, converting the death sentences to life without parole.

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    This is really a mixed bag of foolishness. (none / 0) (#1)
    by Gerald USN Ret on Sat Dec 17, 2011 at 04:07:05 PM EST
    There are quite a few ways of looking at the carrying out of the death penalty.

    Those against the death penalty itself take full advantage of the procedural and equipment failures to make their case that besides the stated aim of causing death, pain and suffering are caused in the process.  Likewise faulty trial procedures are taken advantage of.  The so called "eye witness" testimony for example, or the questionable confession.

    I personally think the death penalty should be avoided unless we have more positive evidence that the killer is indeed the killer.  How to do that is the problem.  How to set up the criteria?  DNA? Video? Forensics?  What is enough?
    Personally I don't even think confessions are enough.  How many times have we found that confessions were wrong, forced, mistaken?

    But when we start talking about the procedures and pain and suffering, I really get frustrated.  In the old days, it was simple for the "simple" folk.  Firing squad.  Hanging.  Sit them in a electric chair and "fry" them, both figuratively and sometimes literally.  Heck those evil people were being executed so why worry about their feelings.  Invite the county to come see.  Sell refreshments.  Set up viewing stands.  

    These methods brought about an aversion to causing pain and suffering, so what did our pharmacological nation decide on?  Death by injection.  Total foolishness.

    If it has to be done, there are simple, cheap, and fail safe methods.  The simplest is by gas and I don't mean the CN gas used by a the Germans in the old days.  Simple inert gases that are very cheap and totally effective would just put the executable to sleep.  No pain.  Just a drowsiness that would become a final sleep.  And by the way people die every year in the US and the world from these gases and never know what happened.

    I won't go into details because I don't like to talk about things that could be used wrongly by distressed people in great personal pain.  I am not a suicide engineer!

    There are far easier ways.  No doctor needed except for the final pronouncement.