The legal fight over California’s lethal injec­tion process moved into a new phase as the state has giv­en up its appeals and decid­ed to fol­low the admin­is­tra­tive rules to put the exe­cu­tion plan through pub­lic review. The state must hold a series of pub­lic hear­ings, which effec­tive­ly leaves San Quentin’s new­ly con­struct­ed exe­cu­tion cham­ber emp­ty for the fore­see­able future. This is the lat­est devel­op­ment in California’s attempt to revise its lethal injec­tion process; exe­cu­tions have remained on hold for near­ly three years. 

The dis­pute began with a fed­er­al court chal­lenge to the lethal injec­tion process (Morales v. Tipton) and was fol­lowed by a fed­er­al judge’s hold­ing that the state’s lethal injec­tion pro­ce­dures were uncon­sti­tu­tion­al. The U.S. District Court in San Jose invit­ed revi­sions to the exe­cu­tion pro­to­col, but the new pro­ce­dures were chal­lenged sep­a­rate­ly in state court because of the fail­ure to expose them to pub­lic review. The state orig­i­nal­ly denied that pub­lic review was required for this kind of change in procedures. 

The pub­lic hear­ings will not nec­es­saar­i­ly end the legal issues sur­round­ing lethal injec­tions. The fed­er­al case remains on hold until California pro­pos­es a valid plan to improve the exe­cu­tions pro­ce­dures. After the hear­ings are com­plete and the state final­izes new pro­ce­dures, the plans will face fur­ther scruti­ny in the fed­er­al case. There are cur­rent­ly about 670 peo­ple on death row in California, the largest in the coun­try. The state is plan­ning on build­ing a new death row with greater capac­i­ty.

(H. Mintz, ​“State decides to seek pub­lic input on exe­cu­tion plan,” San Jose Mercury News, January 6, 2009). See Lethal Injection and Recent Legislation. In April 2008, the U.S. Supreme Court upheld the lethal injec­tion pro­ce­dures used in Kentucky (Baze v. Rees). However, that deci­sion did not involve ques­tions about the prop­er adop­tion of new pro­ce­dures, and anoth­er state’s pro­ce­dures might dif­fer suf­fi­cient­ly from Kentucky’s as to ren­der them uncon­sti­tu­tion­al.

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