OAKLAND, Calif. (CN) — Following Californians’ Election Day approval of a proposition to keep the death penalty and speed executions, the ACLU sued the state, claiming Proposition 66 gives unelected officials “unbridled discretion” over executions.
The ACLU of Northern California and two death-row inmates, Mitchell Sims and Michael Morales, claim California’s death-penalty law violates the state constitution’s separation of powers clause by allowing the defendant Department of Corrections and Rehabilitation instead of legislators to develop execution procedures.
Voters approved Proposition 66 by 198,801 votes: 51 percent to 49 percent. It will accelerate executions by limiting habeas corpus petitions and requiring death penalty appeals to be completed within five years of the death sentence, among other things.
Voters rejected another measure that would have repealed the death penalty and replaced it with life imprisonment without possibility of parole.
ACLU Foundation of Northern California attorney Linda Lye said in an interview Wednesday that the Legislature — not a state agency — is legally required to develop execution procedures.
She said the Legislature is more likely than prison officials to develop procedures that would make executions more humane, reducing pain and how long it takes to die.
“Our concern is about giving unelected bureaucrats too much power,” Lye said. “The death penalty is an irreversible, very controversial punishment, and the people of the state have a constitutional right to have a say through their elected leaders on how the state carries out this incredibly grave punishment.”
The prisons department is writing new lethal injection procedures to switch from using one drug to three, according to the complaint. Although the state says using one drug will reduce pain, the ACLU claims it could actually increase it, and accused the state of making the switch for convenience.
“CDCR has a history of prioritizing administrative convenience and secrecy over other policy priorities … like reducing inmate pain,” Lye said.
A spokeswoman for the Department of Corrections and Rehabilitation declined to comment Wednesday.
According to the ACLU, the one-drug protocol increases pain risk by failing to limit the number of times an execution team can try to tap a prisoner’s vein to inject lethal drugs, and allows doctors to push the catheter in and out of the same site repeatedly to find a viable vein. The protocol also fails to consider how long an execution could take.
The ACLU cited a 2014 Oklahoma execution that was called off after half an hour when a prisoner suffered seizures after the team failed to properly hit a vein after 16 tries, but who died 10 minutes later.
The warden later testified that the scene was “a bloody mess.”
“Even after intravenous access is established and the drug is administered, the speed of an execution may vary from quick to excruciatingly long,” the ACLU said in its complaint.
It says courts have struck down two of the agency’s previous execution protocols as cruel and unusual punishment, and seeks an order prohibiting the prisons department from implementing a protocol until the Legislature provides guidance on how to conduct executions.
“If the state moves forward and executes people, it should not do so under an unconstitutional protocol,” Lye said.
There are 750 inmates on California’s death row. The state has executed 13 prisoners since it reinstituted the death penalty in 1978, and performed its last execution in 2006.
The plaintiffs are represented in Alameda County Court by Lye in San Francisco and by Donald Brown and Donald Brown with Covington & Burling in San Francisco.