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The ACLU of Northern California won a round in court late last month when a Marin County Superior Court judge ruled that its challenge to California’s new lethal injection protocol could go forward. The California Dept. of Corrections and Rehabilitation had tried to adopt the new protocol without revealing details and without opening it up to public comment.

“The California Department of Corrections and Rehabilitation has a history of issuing illegal execution protocols,” ACLU senior staff attorney Linda Lye said. “[The] ruling gives us the opportunity to prove that in court.”

Lye said the ruling centered on the Administrative Procedures Act, which requires agencies to provide the public with notice and an opportunity to comment before adopting regulations. CDCR had argued that Proposition 66, the initiative passed by voters in 2016, exempted it from the APA requirements, but the ACLU successfully argued that the “exemption in 66 was quite narrow, and only pertained to the method of execution,” according to Lye, and not the protocol surrounding executions, e.g., review of the sanity of the prisoner, or the process of selecting public witnesses or the disposal of the executed prisoner’s body and property.

This is not the only challenge pending against the CDCR’s plans to resume executions. The ACLU is also contesting the authority of unelected prison officials to draft execution regulations, a practice Lye says allows “California legislators to evade political accountability” for the state’s death penalty scheme.

In addition, in 2006, a federal court issued a stay on the previous execution method, a three-drug lethal injection cocktail, finding that it constituted cruel and unusual punishment. U.S. District Court Judge Richard Seeborg is now overseeing that case and will have to decide if the new method, a single lethal drug, either thiopental or pentobarbital, is constitutional. But even then, the state may be stymied because the federal government does not allow thiopental to be imported, and the manufacturers of pentobarbital prohibit its use in executions.

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