Appellate court upholds halt to death penalty in California

05/31/2013 12:00 AM

05/31/2013 6:34 AM

California's years-long legal battle to resume capital punishment has again suffered a setback, this time by an appellate court's ruling Thursday that the state's regulations governing executions are invalid.

A three-justice panel of the lst District Court of Appeal in San Francisco upheld Marin Superior Court Judge Faye D'Opal's 2012 finding that the Department of Corrections and Rehabilitation "substantially failed to comply" with mandatory requirements of the Administrative Procedure Act when it adopted the regulations in 2010.

The appellate panel said D'Opal acted correctly when she invalidated the regulations and issued an injunction barring executions.

"We are evaluating (Thursday's) decision," said Deborah Hoffman, department spokeswoman.

She also said that, at Gov. Jerry Brown's direction, the department "is continuing to develop proposed regulations" for single-drug lethal injections, a sharp departure from the three-drug protocol used before the suspension of executions more than seven years ago and proposed in the rejected regulations.

Steve Mayer, lead appellate counsel for the condemned inmates challenging the regulations, estimated it will take "at least nine months to a year, and maybe longer," if the state decides to craft revised regulations and jump through the rule-making hoops set out in the Administrative Procedure Act.

On the other hand, if the Brown administration petitions the California Supreme Court for review, Mayer said, "we are looking at anywhere from two to four years" before the court issues an opinion. It depends on how long it takes the seven-member court "to get four justices to sign off on something."

Mayer said the case is unique in that "the CDCR did such a bad job. There wasn't a single step in the process they did right, so it's not surprising there is no case law right on point."

D'Opal found that the administration of former Gov. Arnold Schwarzenegger failed, as required by the APA, to describe alternatives to the three-drug protocol, failed to provide a sufficient rationale for rejecting alternatives, and failed to explain why a one-drug alternative would not be as effective or better.

She also cited the lack of candor on the part of Schwarzenegger and his corrections officials.

They claimed to have been guided by a U.S. Supreme Court decision upholding Kentucky's three-drug protocol, but later had to admit that was not true when they were confronted with the fact the Kentucky case was decided in April 2008, more than a year after Schwarzenegger had settled on the three-drug protocol. They were forced to acknowledge they did not revisit the question after the high court's ruling.

Call The Bee's Denny Walsh, (916) 321-1189.

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