California may be forced to redesign executions

A decision to toss latest plan would increase uncertainty over state's death penalty, already on hold because of a constitutional challenge.

By Henry Weinstein, Los Angeles Times Staff Writer

October 31, 2007

California may have to go back to the drawing board to redesign how to execute condemned inmates by lethal injection, under a tentative ruling Tuesday by a Marin County Superior Court judge.

Judge Lynn O'Malley Taylor's decision to toss the state's design, if it becomes final, will cast more uncertainty on California's death penalty, already on a de facto moratorium for the last 20 months because of a constitutional challenge to lethal injection.

Critics across the country have objected that lethal injection amounts to cruel and unusual punishment, contending that the three-drug cocktail that is used includes a paralyzing chemical that masks extreme pain.

The U.S. Supreme Court is considering a challenge to lethal injection in a Kentucky case.

Last December, U.S. District Judge Jeremy Fogel in San Jose ruled that inmates on California's death row run an unnecessary risk of excessive pain.

In response to Fogel's ruling, the state started building a new death chamber and revised lethal injection guidelines, largely behind closed doors.

Attorneys from the Munger, Tolles & Olson law firm sued on behalf of two inmates, saying that state corrections officials made a "deliberate and undisputed" decision to ignore the Administrative Procedure Act, which called for public scrutiny of the state's overhaul.

Lawyers from the California attorney general's office asserted that the Administrative Procedure Act did not apply because of an exemption for policy changes that affect only one prison or correctional facility. All state executions are carried out at San Quentin State Prison.

Attorneys also argued that the state's lethal injection procedure "is not a rule of general application."

Taylor, on the eve of a court hearing on the issue, flatly rejected both of those arguments.

"None of the exceptions to this rule raised by the defendants apply," she wrote.

She said she will issue an injunction against enforcing the new state plan.

Administrative law experts said the ruling could have a dramatic effect on the more than 650 people on California's death row. Corrections officials would have to draw up new lethal injection procedures, publish a rule, seek comment, hold a public hearing and submit the rule to review by the state Office of Administrative Law, an independent agency, according to law professors Michael Asimow of UCLA and Clare Pastore of USC.

That could take up to six months or longer, Asimow said.

Bradley S. Phillips, the lead lawyer for the plaintiffs, death row inmates Michael Morales and Mitchell Sims, said it would be inappropriate for him to comment on a tentative ruling. The attorney general's office had no immediate comment.

Both professors Asimow and Pastore said the judge's ruling was well within the mainstream of the courts' thinking on the issue in California.

"The California Administrative Procedure Act is unusual because it is very strong and detailed," said Pastore, who brought a number of cases under the law while she was at the Western Center on Law and Poverty. "We want the public to know what government is doing."

Asimow said similar rulings are issued many times a year, frequently in cases of what have come to be known as "underground regulations," issued without a public voice.

Lawyers from the state attorney general's office are expected to ask Judge Taylor to reverse her tentative ruling at the hearing today. If that does not succeed, they can appeal.

Attorneys also have filed a court challenge to the merits of the state's new lethal injection procedures. Judge Fogel has scheduled a hearing on that challenge for Dec. 10 and 11.

henry.weinstein@latimes.com