A lawyer for the state asked an appeals court in San Francisco today to reinstate California’s three-drug lethal-injection procedure for executing death row inmates.
Deputy California Attorney General Michael Quinn argued that the revised lethal-injection plan, completed in 2010, complied with a state administrative law governing the development of new regulations.
Public comments on the California Department of Corrections and Rehabilitation’s draft of the protocol in 2009 “dealt with every conceivable issue related to the death penalty,” Quinn told a three-judge panel of the state Court of Appeal.
“There was no confusion about what the draft regulation was about.
The public was fully informed and able to comment,” Quinn maintained.
The state is appealing a 2011 decision in which Marin County Superior Court Faye D’Opal struck down the revised protocol on the ground that the CDCR violated the state’s Administrative Procedure Act.
The law requires agencies to show that new regulations are necessary and to provide a meaningful opportunity for public comment.
D’Opal ruled that among other errors, the department failed to justify why its three-drug plan was better and more effective than an alternative of using just one drug, a barbiturate.
Steven Mayer, a lawyer for condemned inmate Mitchell Sims, argued today, “At the end of the day, when you get to the heart of the case—which is the three-drug protocol—it is totally unclear why the three drugs were adopted.”
The appeals court took the case under submission after hearing less than an hour of arguments and now has three months to issue a written ruling.
The procedural challenge, made in a lawsuit filed by Sims, is one of two ongoing cases that have resulted in blocking executions in California since early 2006.
The other case is a federal lawsuit, filed by death row inmate Michael Morales and later joined by other Sims and other prisoners.
The federal case, pending before U.S. District Judge Richard Seeborg in San Francisco, alleges that three-drug procedure violates the U.S. Constitution’s ban on cruel and unusual punishment.
The inmates claim the third drug, potassium chloride, may cause excruciating pain that could be masked by the paralytic second drug.
Seeborg has said he will wait to review the federal constitutionality of the protocol until after the state courts have determined that a valid plan is in place under California law.
The state appeals court’s eventual decision can be appealed to the California Supreme Court.
At today’s hearing, Justice Anthony Kline appeared to be dubious of Quinn’s arguments.
“The amount of conceded mistakes here is unusual,” Kline said, referring to errors the CDCR acknowledged it had made in outlining its reasons for the protocol.
“The department has conceded they failed to comply (with the state law) in numerous particulars,” Kline said.
The department has maintained that any errors were harmless and that the main responsibility for determining whether regulations are clear and necessary lies with the state Office of Administrative Law rather than with the courts.
The other two judges on the panel, Justices James Lambden and James Richman, said little during the hearing.
The state now has 734 inmates on death row, with cases in various stages of appeal. More than a dozen appear to have lost all appeals other than the two challenges to the lethal-injection protocol.
Julia Cheever, Bay City News