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.

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