Constitutional Law

Schwarzenegger Wields New Tactic to Resume Executions

Since halting executions three years ago, the largest death row in the U.S. has swelled to 680 inmates. Now, Governor Arnold Schwarzenegger (R-Calif.) is trying a new legal tactic to maneuver around the moratorium on capital punishment in his state.

In 2006, U.S. District Judge Jeremy Fogel ordered California to stop executing prisoners for the intense pain found to have resulted from the state’s use of lethal injection. Since then, the state redrafted its procedures for lethal injection to make the process more humane. Before Fogel could review the new procedures, a state judge ruled that they violated state law. That decision was affirmed by a state appellate court.

Throughout the litigation before state courts, Gov. Schwarzenneger argued that the rules were only properly reviewed by the judiciary, rather than through the state’s Administrative Procedures Act (APA). Having lost in federal and state courts, the government is now reversing positions and subjecting the rules to the APA. According to the Los Angles Times,the “act requires that any policy changes affecting more than one [state] institution submit to a 60-day period for public comment.” Thus, with a majority of Californians supporting capital punishment, executions may resume there by the end of April.

Meanwhile, the Wall Street Journal Law Blog reports, Gov. Schwarzenegger is requesting that the state court of appeals decision affirming the government’s defeat should be “depublished.” Under state law, the California Supreme Court may order depublication of an appellate decision for any reason. The result of a decision’s depublication is that it has no precedential value in subsequent litigation, though it would have no impact on cases already decided. The governor’s office is requesting depublication in the instant case due to concern “that the ruling could create administrative havoc across the prison network,” according to the Journal Law Blog.

Full post as published by ACS Blog on February 24, 2009 (boomark / email).