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Cal. Lethal Injection Decision Affirmed

As expected, the California Court of Appeal, First District, today affirmed the decision of the Marin Superior Court that the Department of Corrections and Rehabilitation did not follow proper procedures in promulgating its present three-drug execution protocol.  This does not really change the status of the death penalty in California, as that protocol is enjoined by the federal court anyway. 

Most of the procedural issues discussed in the opinion are one-time issues that are unlikely to be repeated when CDCR announces its single-drug protocol, which should be soon.  Indeed, one of the main issues was CDCR's failure to explain why it didn't go for the single drug in the first place.

The opinion completely fails to address the more difficult, more interesting, and more important question.  Is enjoining executions an appropriate remedy?  The Administrative Procedure Act is a law, to be sure, but so is the death penalty.  The APA was never intended to make other laws unenforceable.

But CDCR did not brief these issues, and Presiding Justice Anthony Kline, Jerry Brown's Legal Affairs Secretary in the 70s, blocked our attempt to bring these issues to the attention of the court.  (In California appellate courts, the P.J. makes this decision unilaterally.)

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