Legal News

To Resume Golden State Executions, Governator Changes Course

By Ashby Jones

The basics of capital punishment are ones that any sixth-grader can grasp: Should we condemn to death perpetrators of certain crimes? But when it comes to the real life application of the death penalty, things are rarely so straightforward.

The latest example comes to us from the Golden State, where the Governator and his lawyers have done an about face in the legal battle to resume executions, which have been on hold for over three years. Gov. Arnold Schwarzenegger’s hope is that the new strategy will allow for executions to once again to be carried out. The California state prison at San Quentin, where all of the state’s death-row inmates are housed, currently houses 680 death-row inmates. Click here for the LA Times story.

First, a little background: Three years ago, a California federal judge issued a ruling that led to a moratorium on executions. U.S. District Judge Jeremy Fogel ordered the state to review claims that execution procedures violated the 8th Amendment ban on cruel and unusual punishment. Judge Fogel was concerned by allegations that the lethal-injection cocktail, if administered improperly, could cause an inmate intense pain.

In 2007, the state redrafted its execution procedures. But before Fogel could review the changes, a death-row inmate challenged the changes in state court in Marin County, where San Quentin is located. A Marin County judge ruled that the way the new procedures were drafted violated state law. A state court upheld the Marin County judge in November, and the period for appeal to the California Supreme Court has expired.

So the news announced yesterday is that Schwarzenegger will yield to the state courts — and subject the rules to the state’s Administrative Procedure Act. (Throughout the challenges, Schwarzenegger had argued that the new rules weren’t subject to the APA.) The APA requires that rule-changes be published an disseminated for 60 days to give the public a chance to comment before taking effect.

At the same time, however, the state has decided to simultaneously ask the California high court to “depublish” the November appeals court decision on grounds that it was “wrongly decided.” He said department lawyers were concerned that the ruling could create administrative havoc across the prison network.

And that last move — the appeal — has some up in arms. “If they were going to go the administrative route, they could have started that two years ago when all this came up,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation.

Still, state officials predict the execution procedures could be approved by a state panel in six months to a year, clearing the way for the moratorium to be lifted.

Photo: AP

Full post as published by Law Blog - WSJ.com on February 24, 2009 (boomark / email).