In a new set­back to efforts to restart exe­cu­tions in California, the state’s Office of Administrative Law (OAL) has reject­ed the new lethal injec­tion pro­to­col pro­posed by the California Department of Corrections and Rehabilitation. On December 28, 2016, the OAL, which is respon­si­ble for review­ing reg­u­la­to­ry changes pro­posed in California, issued a 25-page deci­sion of dis­ap­proval, cit­ing incon­sis­ten­cies, inad­e­quate jus­ti­fi­ca­tion for cer­tain parts of the pro­pos­al, and a fail­ure to ade­quate­ly respond to pub­lic com­ments. The agency gave the Department of Corrections four months to address prob­lems in the pro­to­col. The pro­posed pro­to­col would have changed California’s pre­vi­ous three-drug pro­ce­dure to a one-drug pro­ce­dure, call­ing for 7.5 grams of one of four bar­bi­tu­rates. The OAL ques­tioned whether the 7.5 gram dose met California’s require­ment that a reg­u­la­tion be ​“nec­es­sary,” not­ing that cor­rec­tions offi­cials had said 5 grams of the bar­bi­tu­rate would be lethal and had pro­vid­ed no ratio­nale as to why they chose a larg­er dose. It also request­ed clar­i­fi­ca­tion of numer­ous ambi­gu­i­ties in the new reg­u­la­tions, includ­ing the steps tak­en by cor­rec­tion­al offi­cials in the days lead­ing up to the exe­cu­tion, what steps would be tak­en dur­ing the course of an exe­cu­tion if the pris­on­er did not imme­di­ate­ly die, and what would be involved in month­ly inspec­tions of the exe­cu­tion cham­ber. Among the inad­e­quate respons­es to pub­lic com­ments, the OAL not­ed that “[t]he Department’s response does not address the issue of ​‘using meth­ods that are untest­ed or poor­ly under­stood’ or ​‘human exper­i­men­ta­tion’ as it per­tains to the use … for lethal injec­tion pur­pos­es” of two of the drugs in the pro­to­col. Executions in California have been on hold since 2006 because of legal chal­lenges to the state’s lethal injec­tion pro­ce­dure. In November, vot­ers nar­row­ly passed Proposition 66, which pro­pos­es to speed up exe­cu­tions. Implementation of that propo­si­tion was blocked by the California Supreme Court, pend­ing the out­come of a law­suit.

(A. Koseff, ​“California rejects pro­posed new death penal­ty rules,” Sacramento Bee, January 4, 2017.) Read the Office of Administrative Law’s Decision of Disapproval here. See Lethal Injection.

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