Mary Kate DeLucco

San Francisco (March 27, 2018) — Today, Marin County Superior Court Judge Roy Chernus lifted an injunction blocking executions that use a lethal injection protocol not approved by the state’s rulemaking process. Judge Chernus stated that a provision of Prop. 66, which was passed by a razor-thin majority of voters in 2016, left him no choice. The provision exempted Penal Code Section 3604 from the public oversight and rulemaking process outlined in the state’s Administrative Procedures Act.

However, this does not mean executions in California will automatically resume. That’s because this injunction was just one of four ongoing challenges to the state’s proposed use of lethal injection.

In response to the development, Death Penalty Focus issued the following statements:

  • These ongoing challenges and injunctions are in place for good reasons. California has had a troubling past with lethal injection, and, just this year, there have been horrifying reports of executions gone awry around the country. Any protocol that features a chance of torturous or “botched” executions needs to be examined in light of the Constitution’s ban on cruel and unusual punishment.
  • Despite what its proponents claimed, Prop. 66 was not a blanket mandate allowing executions to simply resume. This sloppy law raises many legal questions, and they will have to be litigated in court, which will be a lengthy process.
  • This sloppy law attempted to prevent public oversight of execution methods. We think Californians should know what the government is doing in their name and have the ability to weigh in on an issue as grave as putting incarcerated people to death.
  • While it limits public oversight for parts of a lethal injection process, this sloppy law does not affect many issues that prison staff will have to make decisions about when executing a prisoner. For example, many people lose their minds after decades in solitary confinement on death row, and there are constitutional bans on executing the mentally ill. In addition, many prisoners on death row are elderly, and as evidenced by recent cases around the country, may be too sick or mentally incompetent to be executed. These types of regulations were not exempted by the 2016 proposition, and could be subject to legal challenge.
  • Given the sloppiness with which the law was written, it may be more suitable for state legislators to make decisions about execution methods instead of the current delegation of that responsibility to prison staff.
  • Despite what anyone says, the timeline is completely unclear here. On top of several courts considering constitutional claims and legal challenges, there are questions about whether the state could even get the drugs it says it needs. Importing sodium thiopental violates federal law, and pentobarbital’s manufacturers forbid its use in executions.

It's time to end this costly, failed system.

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