Bob Egelko, Chronicle Staff Writer
Wednesday, October 31, 2007
California's new procedures for lethal injections are invalid because they were never submitted to the public for comment or reviewed by the office that approves all state regulations, a Marin County judge said Tuesday in a tentative ruling that could prolong the state's moratorium on executions.
Superior Court Judge Lynn O'Malley Taylor agreed with lawyers for two condemned prisoners that the state Department of Corrections and Rehabilitation was enacting a regulation when it announced new procedures in May for lethal injections at San Quentin State Prison.
Under state law, an agency that adopts a new regulation 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.
The Corrections Department has never gone through that process with new execution procedures, saying they are not regulations because they apply only to a limited group of inmates at a single prison. Taylor disagreed.
"The undisputed evidence establishes that (the execution protocol) is a rule or regulation of general application," said Taylor, a retired judge sitting by special assignment in the court.
The protocol, she said, "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.
The 667 condemned inmates in California include 15 women at the Central California Women's Facility in Chowchilla (Madera County), who, if their appeals fail, will be executed at San Quentin. Some of the male inmates are being held in medical institutions or, in the case of one of the Marin County plaintiffs, a prison in another state where he has also been sentenced to death.
The state will contest Taylor's preliminary decision at a hearing Wednesday in San Rafael.
Taylor said the new procedures cannot be implemented legally until they go through the regulatory process, including public input. Her ruling, if it stands, poses a new obstacle to California's beleaguered capital punishment system.
No one has been executed in California since January 2006. The following month, U.S. District Judge Jeremy Fogel blocked the execution of Michael Morales of Stockton, convicted of raping and murdering 17-year-old Terri Winchell in a vineyard near Lodi in 1981.
Fogel said records of past executions convinced him that there was a risk that a sedation drug would not work and that Morales would be conscious, paralyzed and in agony while dying.
After hearing testimony from medical experts and execution witnesses, Fogel issued another ruling in December saying he would find that California's lethal injections - carried out by a poorly trained and supervised prison staff, in dimly lit and chaotic conditions - violated the constitutional ban on cruel and unusual punishment unless the state overhauled the execution process.
The state responded by changing the drug doses, promising improvements in staff selection and training, and building a new execution chamber, which Fogel is scheduled to visit in advance of a Dec. 10-11 hearing in his San Jose court.
The U.S. Supreme Court is preparing to review a similar case from Kentucky that could lead to changes in execution methods in virtually every state with a death penalty law, including California.
The Marin County suit was filed in April 2006 by Morales, now 48, and Mitchell Sims, 47, who has been sentenced to death in California and South Carolina for murdering employees of Domino's Pizza in both states. He once worked at the pizza chain.
Both men have unsuccessfully appealed their convictions and death sentences.
In Main News: The Supreme Court halts an execution in Mississippi while it considers a challenge to Kentucky's lethal injection procedures.
E-mail Bob Egelko at begelko@sfchronicle.com
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