Lethal Injection Plan for California Thrown Out

     (CN) – California regulations to kill death-row inmates with a three-drug cocktail were adopted in violation of administrative procedure, a state appeals court ruled.
     California’s death-row inmates have the choice of lethal injection or lethal gas, but the lethal injection protocol has been under scrutiny since it was found to violate the Eighth Amendment’s protections against cruel and unusual punishment in 2006.
     The revised procedure was also deemed an “underground regulation” in 2008 for failing to follow the rulemaking process of the Administrative Procedures Act.
     Though the Office of Administrative Law approved another set of modified regulations in 2010, the California Department of Corrections and Rehabilitation admitted that this plan also did not comply with APA requirements.
     Death-row inmate Mitchell Sims filed suit later that year, and two other prisoners who filed nearly identical actions later intervened in that action.
     A Marin County Superior Court judge invalidated the regulations in December 2011 based on their violation of APA requirements.
     A three-judge panel of the First Appellate District in San Francisco affirmed last week.
     “The CDCR violated these provisions by failing to set forth … alternatives to the proposed three-drug lethal injection protocol; by failing to provide a rationale for rejecting those alternatives; by failing to explain, with supporting documentation, why the three-drug alternative was superior to the use of a single drug; by falsely representing that it selected the three-drug alternative on the basis of the Supreme Court decision in Baze, supra, 553 U.S. 35; by failing to include documents required to be disclosed in its rulemaking file; and by failing to make the rulemaking file available for public inspection until six weeks after it was required to do so, when less than three weeks remained in the period within which public comment was allowed,” according to the ruling.
     Though the department tried to characterize its noncompliance as harmless, the court found that “the requirements violated by the foregoing conduct are certainly not, as the CDCR says, merely ‘technical.'”
     The ruling means the corrections department cannot execute inmates by lethal injection until it corrects the deficiencies.
     Critics of the three-judge protocol complaint about the unnecessary use of pancuronium bromide, which they say is “dangerous and creates a risk of excruciating pain.”
     The trial judge concluded, however, that evidence showed proper application of the three-drug formula authorized by the regulations “will result in a rapid death of the inmate without undue pain or suffering.”

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