To Resume Golden State Executions, Governator Changes Course

 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.

http://blogs.wsj.com/law/2009/02/24/to-resume-golden-state-executions-
governator-changes-course/