Superior Court Judge Lynn O’Malley Taylor held that the California Department of Corrections and Rehabilitation failed to follow proper procedure for instituting new regulations when it issued new lethal injection protocols in May. Under state law, an agency that adopts new regulations must first publish the text, invite public comments, hold a hearing if a member of the public requests one, and submit the final draft to the Office of Administrative Law, which decides whether the proposed rule was legally authorized. Though the Corrections Department maintains that the protocols are not regulations because they apply to a small number of inmates, Taylor disagreed, stating “The undisputed evidence establishes that (the execution protocol) is a rule or regulation of general application.” Taylor, a retired judge sitting by special assignment in the court, also said the protocol “implements a statewide policy on lethal injections for condemned inmates,” prescribes duties for state officials outside San Quentin and applies to prisoners at other institutions.

Taylor’s ruling states that the new procedures cannot be implemented until they go through the regulatory process. This marks the latest chapter in a series of lethal injection challenges impacting executions in the state. No one has been executed in California since January 2006. In February 2006, U.S. District Judge Jeremy Fogel blocked the execution of Michael Morales. Fogel found there was a chance that a sedation drug would not work during the execution, leaving Morales conscious, paralyzed and in agony while dying. After hearing testimony from medical experts and execution witnesses, Fogel later issued another ruling saying he would find that California’s lethal injections violate the constitutional ban on cruel and unusual punishment unless the state overhauled the execution process. Early next year, the U.S. Supreme Court will consider a similar case out of Kentucky.
(San Francisco Chronicle, October 31, 2007) See Lethal Injections.