Appeals court deals California another setback on executions

San Quentin State Prison, home of California's death row.
(Eric Risberg / Associated Press)

SAN FRANCISCO — A California appeals court unanimously decided Thursday that the state’s lethal injection regulations were not properly vetted, a decision that is likely to further delay executions.

No inmate has been executed in California since 2006, and the ruling by the appeals court in San Francisco could leave the death chamber unused for still more years.

In a decision written by Justice J. Anthony Kline, a three-judge panel of the 1st District Court of Appeal upheld a Marin County judge’s decision that the California prison officials failed to comply with public participation requirements when they last revised the state’s lethal injection procedures.


The appeals court said the Department of Corrections and Rehabilitation did not fully inform the public of alternatives to the three-drug method of execution the department favored.

“A hearing is ‘on the merits’ and ‘meaningful’ only if the interested public has timely received all available information that is relevant to the proposed regulations, accurate, and as complete as reasonably possible,” Kline wrote.

Corrections officials never explained why they favored continuing the state’s three-drug lethal injection or their reasons for rejecting other methods, the court said.

That failure was particularly significant because many commentators had complained that one of the three drugs the state has used -- pancuronium bromide -- could both create and mask excruciating pain by paralyzing inmates during executions, the court noted. The state’s own expert also had recommended a single-drug execution method.

Corrections officials told the court that they had responded to 29,416 correspondences from the public, posted notices of its proposal in all California prisons and held a lengthy hearing in which 102 people commented on the proposed lethal injection protocol.

But Kline said the state’s view of the purpose of the public participation law was “far too limited and simplistic.”


“Affected people cannot be thought to have been heard … simply because large numbers of interested people were provided an opportunity to be heard,” Kline wrote. “The public participation contemplated by the [law] is not a numbers game.”

The regulations struck down by the court were finalized after a federal judge ruled that California’s execution method could expose inmates to unconscionable pain in violation of the federal Constitution.

Years of litigation have prevented the state from resuming lethal injection, and prisoners on death row are more likely to die of suicide or old age than an executioner’s needle. The row has grown over the years to include more than 700 inmates, the largest in the nation.

The state could appeal the decision to the California Supreme Court or propose a new method of execution.


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