By Michael Brodheim

In May 2013, a California appeals court invalidated regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR) regarding the manner in which the state executes condemned prisoners. The appellate court held that the CDCR had “substantially failed to comply” with the procedural requirements of the state’s administrative rules; the decision prohibits the state from executing any prisoner by lethal injection until it properly adopts regulations pursuant to the Administrative Procedure Act (APA).

With 745 condemned prisoners as of June 2014, California has the nation’s largest death row population. In December 2006, a federal court held that the state’s three-drug lethal injection protocol constituted cruel and usual punishment. Despite their best efforts, CDCR officials have been unable to execute anyone since then.

Responding to the federal court ruling, in May 2007 the state revised its execution protocol. When challenged, however, that revision was found by a state court to constitute an “underground regulation” because it had not been promulgated pursuant to the APA.

The CDCR began the process of attempting to promulgate appropriate regulations in compliance with the APA in mid-2009. [See: PLN, Nov. 2009, p.28]. That process was completed in August 2010 when the CDCR adopted regulations now codified at §§ 3349, et seq. of title 15 of the California Code of Regulations.

The same month, condemned prisoner Mitchell Carlton Sims filed a complaint seeking declaratory and injunctive relief. He argued that one of the three drugs the state planned to use for executions was unnecessary and would likely cause excruciating pain.

The trial court rejected that argument but accepted Sims’ second argument – that the CDCR had substantially failed to comply with the procedural requirements of the APA when it adopted its execution protocol. In fact, the CDCR “admitted … that it did not actually comply with many of the requirements of the APA….”

The Court of Appeal affirmed that decision, finding that the CDCR had 1) failed to articulate alternatives to the proposed three-drug execution protocol and 2) failed to explain why it rejected those alternatives, and in particular why the use of a single drug would not be as effective. See: Sims v. Department of Corrections and Rehabilitation,216 Cal. App. 4th 1059 (Cal. App. 1st Dist. 2013).

In a book titled Chief: The Quest for Justice in California, published in November 2013, former California Supreme Court Chief Justice Ronald M. George questioned whether the death penalty was fairly implemented due to geographical disparities.

“You could have the exact same crime, let’s say a straightforward street robbery homicide, result in the seeking of the death penalty in one part of the state and not in the other, among various defendants with similar past histories and records,” George wrote. “This, to me, raises some troubling issues. I’m not saying I find this necessarily rises to the level of a constitutional infirmity, but it may raise policy concerns about the manner in which the death penalty is administered in California.”

In February 2014, former California governors Pete Wilson, Gray Davis and George Deukmejian expressed their support for a proposed ballot initiative that would hasten executions by curtailing lengthy state court appeals in death penalty cases.

A ballot initiative to end capital punishment in California narrowly lost in 2012. [See: PLN, May 2012, p.18].

Additional sources: Reuters, Los Angeles Times, www.deathpenaltyinfo.org

(Published by Prison Legal News; used by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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