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California judge invalidates revised state lethal injection protocol

[JURIST] A California state judge issued a preliminary ruling Tuesday invalidating May revisions to the state lethal injection protocol [JURIST report]. Judge Lynn O'Malley Taylor of the Marin County Superior Court [official website] said that the proposed changes qualified as a regulation, and thus did not conform to the California Administrative Procedure Act [CA Government Code Section 11340 et seq.] because there had been no opportunity for public comment or review by the Office of Administrative Law. Schwarzenegger and the California Department of Corrections and Rehabilitation [official website] argued that execution protocols were not regulations and thus should not be subject to administrative procedure requirements. The decision will be contested at a San Rafael hearing Wednesday, though it at least temporarily extends the state's moratorium on executions. The San Francisco Chronicle has more.

In December, Schwarzenegger ordered [JURIST report] his administration to "correct court-identified deficiencies in California's lethal injection protocol to ensure the death penalty procedure is constitutional" after a federal court issued a memorandum of intended decision [JURIST report] concluding that California's lethal injection procedure creates "an undue and unnecessary risk" of cruel and unusual punishment in violation of the Eighth Amendment [text] of the US Constitution. Schwarzenegger introduced the revised lethal injection [JURIST news archive] protocol in an effort to persuade US District Judge Jeremy Fogel to lift the execution moratorium. The US Supreme Court will rule on the constitutionality of lethal injections in the upcoming Baze v. Rees (07-5439) [docket; cert. petition, PDF; JURIST report].

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