In a February 2006 ruling, U.S. District Judge Jeremy Fogel found California’s lethal injection protocols could cause excessive pain, raising constitutional issues that ultimately halted the execution of an inmate only an hour before his scheduled death.

Ten years later, the death penalty system remains on pause, as the state has sought to develop a new method for killing prisoners amid mounting legal challenges and national outcry over botched executions. The fate of its latest proposal for new execution protocols now hangs on what happens at the ballot box.

Under current law, all state agencies, including the California Department of Corrections and Rehabilitation, must follow the state’s Administrative Procedure Act when establishing new regulations, which ensures they meet public notice and hearing requirements.

As part of the process, public vetting of a “humane and dignified” single-drug injection procedure, unveiled last year, concludes a day before Tuesday’s election. The proposal will then move on to the final step, a review by the California Office of Administrative Law.


But if voters approve Proposition 66, which seeks to expedite the death penalty, prison officials would be exempt from the existing regulation process, meaning they would no longer have to comply with the rule-making process under the Administrative Procedure Act.

Opponents of the proposition argue the move hurts transparency and gives unchecked executive power to a state agency. Proponents argue it would remove bureaucratic barriers and speed up the system.

“Execution protocols will continue to be intensely scrutinized by the courts, but they will no longer be subject to an administrative process that was never intended for them, is not appropriate for them, and wastes taxpayer money on a pointless exercise,” said Proposition 66 author Kent Scheidegger with the Criminal Justice Legal Foundation.

A Marin County Superior Court judge first ordered the state corrections department to comply with the Administrative Procedure Act in 2007 after death row inmates sued over its execution protocols process.


That year, Gov. Arnold Schwarzenegger’s office had undertaken a massive review of the death penalty system in response to a ruling by Fogel in December 2006, which deemed the state’s administration of the death penalty “cruel and unusual punishment” under the 8th Amendment.

Schwarzenegger’s office sought to address some of Fogel’s concerns, among them inconsistent and unreliable screening of execution team members, a lack of meaningful training and oversight on how to carry out the practice and improper mixing and preparation of execution cocktails.

But before the 2007 state ruling, the corrections department only notified the parties involved, including the state public defender, of any changes in its execution protocol.

Proposition 66 supporters say the new rules under the administrative law have helped keep the death penalty system in limbo ever since, as opponents of the practice have mounted legal challenges and taken advantage of the public vetting process.


Among other requirements, the corrections department “must accept public comments and respond to them, and they must accept emailed comments,” Scheidegger said. “Opponents of the death penalty therefore launch spamming campaigns dumping tens of thousands of comments that are irrelevant, repetitive, or both just to bog down the system.”

But Jen Moreno, a staff attorney at the Berkeley Law Death Penalty Clinic, said Proposition 66 proponents “want to remove public oversight and transparency to compensate for the unwillingness or inability of the [corrections department] with respect to following the law.”

Death row inmates initially filed a legal challenge against the department in 2007 for its failure to go through the process, she said, and then again for its “failure to comply with the requirements when it did go through the process in 2009.” That resulted in the latest invalidation of the state’s execution protocols in 2012.

Proposition 66 opponents argue that it has been transparency that has brought to light improprieties in the process, such as the state’s retention of a three-drug cocktail that had led to botched executions in other states.


“Prop. 66 gives the director of the Department of Corrections and Rehabilitation, an unelected official, unfettered discretion to develop an execution protocol in secret and to implement the protocol with no public oversight,” said Ana Zamora, manager of the No on Prop. 66 campaign.

The latest proposal for a new California protocol stems from a lawsuit filed against the state by crime victims’ families who support the death penalty and want to see it enforced.

It would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. And the selection would occur on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to a copy of the proposal published online.

Over the last year, approximately 36,000 people have submitted 167,000 individual comments, more than what corrections officials have received in the past, according to the corrections department.


Terry Thornton, an agency spokeswoman, said the department has not completed the administrative process — which by law must be completed within a year — and could not confirm whether the proposal would be sent to the Office of Administrative Law by the Nov. 7 deadline.

If Proposition 66 is defeated, the Office of Administrative Law would continue with its final review, which it has 30 working days to complete.

But this year, death penalty opponents also have another measure on the ballot that could declare the whole issue moot: Proposition 62 would retroactively apply life sentences to death row inmates and replace the death penalty with life in prison without parole.

Whatever happens on Tuesday, the Department of Corrections and Rehabilitation “would comply with the law,” Thornton said. How it will do that remains to be determined, she said.


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jazmine.ulloa@latimes.com

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Updates on California politics

UPDATES:

11:50 a.m., Nov. 3: This article was updated with a statement from California Department of Corrections and Rehabilitation spokeswoman Terry Thornton on the status of the agency’s administrative process.


This article was originally published at 2:05 p.m. on Nov. 2.