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December 15, 2006

Major California ruling on lethal injection protocol

Though I think the biggest news on Friday was Governor Jeb Bush's order of a moratorium after Florida's recent botched execution, the blogosphere is mostly buzzing about District Judge Jeremy Fogel's ruling today that the California's application of its lethal injection protocol violates the Eighth Amendment.  How Appealing has all the MSM coverage here, as well as this link to the opinion.  Blog commentary is available at TalkLeft, and at Crime & Consequences, and at Volokh.

Lethal injection guru Professor Debby Denno was kind enough to send me this insightful analysis of Judge Fogel's ruling:

Judge Fogel's decision is bold and incisive.  It is the most comprehensive decision in the country to determine that a state's lethal injection protocol, in its current form, is "intolerable" and unconstitutional under the Eighth Amendment.  The decision goes into impressive detail explaining the reasons for the court's conclusion, as well as all the evidence that the court reviewed to reach it.

To remedy California's intolerably flawed lethal injection process, Judge Fogel put the onus squarely on the Governor's office.  The Governor can meet that challenge in several ways.  The Governor could establish a commission on lethal injection like that ordered by Gov. Bush of Florida.  Or the Governor could order hearings of the type requested by Mr. Morales in his recently filed challenge to the California Department of Corrections' failure to conduct administrative hearings before promulgating the lethal injection procedures.

Whether the Governor's Office can respond to the challenge it has been given and promote the development of a protocol that rectifies the problems that have dogged lethal injection remains to be seen.  I credit Judge Fogel for a well-reasoned decision that takes the design of an execution protocol away from the Department of Corrections and encourages the Governor to institute a meaningful review that can address the currently grievously flawed system.

December 15, 2006 at 11:12 PM | Permalink


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» Would the Supreme Court Agree With Judge Fogel's View of the 8th Amendment?: from The Volokh Conspiracy
In a memorandum handed down on Friday, Judge Fogel of the Northern District of California concluded that the Eighth Amendment requires relatively careful judicial scrutiny of how t... [Read More]

Tracked on Dec 18, 2006 2:29:20 PM


Wouldn't it be nice if public officials just did what they should, rather than waiting for judges to tell them what they have to do?

Posted by: Tom McGee | Dec 16, 2006 11:59:57 AM

"Wouldn't it be nice if public officials just did what they should, rather than waiting for judges to tell them what they have to do?"

As evidenced by the fact that it is taking three separate federal judges to tell California that it's prisons are overcrowded, I don't think that is going to be happening soon. But there are some good examples like Gov. Bush (wow I never thought I would say that in my life) and Gov. Ryan from IL.

Posted by: da_2_b | Dec 18, 2006 10:41:45 AM

It would be surprising if California falls behind Florida and IL as far as progressive views on the law of lethal injection.

Posted by: California Florida | Apr 12, 2008 10:51:01 PM

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