Marin County Superior Court Judge Lynn O'Malley Taylor ruled this afternoon that California's revised protocol for lethal injection of condemned prisoners is invalid because it should have had a formal review.
The judge adopted a tentative ruling she made Tuesday that favored two death row inmates. She said the California Department of Corrections and Rehabilitation enacted a regulation without public comment and did not go through a regulatory process. She heard further arguments on the issue this morning.
Judge O'Malley said the CDCR's lethal injection protocol, officially known as San Quentin Operational Procedure, OP 770, should have complied with the Administration Procedures Act before it was adopted in May.
“The undisputed evidence establishes that OP 770 is a rule or regulation of general application and defendants (the CDCR) were required to comply with the APA. None of the exceptions to this rule raised by defendants apply and plaintiffs' (the death row inmates') motion is granted,” Taylor said.
The California Attorney General's Office argued the new execution procedures apply only to San Quentin State Prison and were not subject to a statewide review process or the approval of the Office of Administrative Law.
Taylor said that “single facility” exception under the state Penal Code does not apply because OP 770 “prescribes duties on wardens and CDCR officials outside of San Quentin.”
Taylor said OP 770 “implements a statewide policy on lethal injections for condemned inmates, including those condemned inmates who are housed at other institutions throughout the state and later transferred to San Quentin prior to their execution.”
“OP 770 is a regulation that applies to a certain class of inmates, (condemned inmates with set execution dates at San Quentin) and thus is a rule of general application which is subject to the APA, (Administrative Procedures Act),” Taylor said.
“Because OP 770 was not adopted in compliance with the APA, an order declaring it to be invalid in this respect is proper,” Taylor said.
CDCR press secretary Seth Unger said this afternoon the state will appeal Taylor's ruling.
In May the Department of Corrections and Rehabilitation adopted the new lethal injection protocol that uses the same sequence of three drugs but includes improved training and supervision of staff and measures to
ensure an inmate is unconscious before the painful third drug is administered.
The protocol also called for a new separate lethal injection chamber at San Quentin State Prison instead of the former gas chamber that had been used to execute inmates.
U.S. District Judge Jeremy Fogel had ruled the former execution procedure was cruel and unusual punishment because a prisoner might still be conscious and in agony before his death. The executions of death row inmates, including Michael Morales, were suspended in February 2006. There are 667 condemned inmates in the state, all but 15 of them in San Quentin.
Attorneys for Morales, 48, and another death row inmate, Michael Sims, 47, filed the suit in Marin County Superior Court last year that challenged the execution protocol.
The U.S. Supreme Court is reviewing a Kentucky case that could change execution methods in all states with a death penalty law, including California. Unger said that ruling is not expected until June and he believes
the CDCR's appeal of Taylor's ruling will be decided by then.
Judge Fogel is scheduled to visit the new execution chamber in San Quentin Nov. 19 and hold another hearing on the execution procedure December 10-11 in San Jose.
— Bay City News