Now in Legal Rebels:
Posted Nov 02, 2007 12:39 am CDT
An effort to enact a new execution protocol in California that would put an end to a death penalty moratorium declared last year by a federal judge has suffered a setback.
The protocol is invalid, a state judge has decided, because it was not created in compliance with the required procedure for enacting statewide regulations, which calls for public comment and administrative review. That means months will pass, no matter what happens next, before a valid protocol can be adopted allowing the state to proceed with executions, reports the San Francisco Chronicle.
The state had contended that the protocol didn’t fall within the definition of statewide regulations, because it applied only to San Quentin State Prison, where the death chamber is located. However, Superior Court Judge Lynn O’Malley Taylor, who sits in Marin County, didn’t agree.
Meanwhile, because the debate over the constitutionality of lethal injections has moved to a national level, it appears unlikely that any further execution will take place in California before the U.S. Supreme Court rules next year on a Kentucky case that it has agreed to hear on this issue. As discussed in a recent ABAJournal.com post, a decision is likely in that case next summer.
U.S. District Judge Jeremy Fogel ruled in February 2006 that the state’s lethal injection procedures violated the constitutional ban on cruel and unusual punishment. As the San Francisco newspaper puts it, the judge said the injections “posed an undue risk that a sedative would fail and leave the prisoner conscious, paralyzed and in agony while dying.”
The state plans to appeal Taylor’s decision.