A decision by the administration of Gov. Jerry Brown to switch from three drugs to a one-drug protocol for lethal injections will delay the potential resumption of death-penalty executions in California for at least one year and possibly several years. Jeffrey Callison, press secretary to the California Department of Corrections and Rehabilitation, confirmed today that the agency will be developing regulations for a one-drug execution process. The action follows the department’s decision not to seek California Supreme Court review of an appeals court ruling that blocked the use of the former three-drug protocol.
In that ruling on May 30, three Court of Appeal judges unanimously said the CDCR didn’t follow proper procedures in developing the former protocol because it didn’t explain, and therefore didn’t give the public a chance to comment on, why it believed a three-drug protocol was better than one drug. The panel upheld a similar decision issued in 2011 by Marin County Superior Court Judge Faye d’Opal, who acted on a lawsuit filed by several death row inmates. “We decided not to appeal” the Court of Appeal ruling, Callison said.
The deadline for appealing to the state high court was Wednesday. Callison said, “It’s too soon to tell” which drug would be used in a one-drug process. Some states have carried out one-drug executions with sodium thiopental, a barbiturate that has also been the first drug used in three-drug executions. But sodium thiopental is now in short supply. Developing a new protocol will take at least a year, because the proposed regulations must first be drafted by the CDCR. They must then be submitted to the state Office of Administrative Law.
After that, a review by that office and required periods of public comment could take up to a year. The future regulations could also be challenged in state or federal court, which could add several years to the delay in implementation. There are now 735 inmates on death row, with cases in various stages of appeal.
The last execution in California took place in January 2006. Executions have been put on hold since then as a result of a constitutional challenge filed in federal court and two rounds of procedural lawsuits filed in Marin County Superior Court. The former three-drug protocol used sodium thiopental to sedate a condemned inmate, pancuronium bromide to paralyze the prisoner, and finally potassium chloride to stop the inmate’s heart.
Prisoners contended in the federal lawsuit that the procedure risked being unconstitutionally cruel and unusual punishment because the third drug could cause excruciating pain that would be masked by the paralytic second drug. Ana Zamora, a senior policy advocate with the American Civil Liberties Union of Northern California, said, “This latest news is just more evidence that California’s death penalty is broken beyond repair.
“Any effort to switch execution procedures is guaranteed to bring more legal challenges and more delays and cost millions, and is doomed to fail,” Zamora maintained. “The only real choice is to replace the death penalty with life in prison without the possibility of parole,” she asserted.
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