The legal fight over California’s lethal injection process moved into a new phase as the state has given up its appeals and decided to follow the administrative rules to put the execution plan through public review. The state must hold a series of public hearings, which effectively leaves San Quentin’s newly constructed execution chamber empty for the foreseeable future. This is the latest development in California’s attempt to revise its lethal injection process; executions have remained on hold for nearly three years.

The dispute began with a federal court challenge to the lethal injection process (Morales v. Tipton) and was followed by a federal judge’s holding that the state’s lethal injection procedures were unconstitutional. The U.S. District Court in San Jose invited revisions to the execution protocol, but the new procedures were challenged separately in state court because of the failure to expose them to public review. The state originally denied that public review was required for this kind of change in procedures.

The public hearings will not necessaarily end the legal issues surrounding lethal injections. The federal case remains on hold until California proposes a valid plan to improve the executions procedures. After the hearings are complete and the state finalizes new procedures, the plans will face further scrutiny in the federal case. There are currently about 670 people on death row in California, the largest in the country. The state is planning on building a new death row with greater capacity.

(H. Mintz, “State decides to seek public input on execution plan,” San Jose Mercury News, January 6, 2009). See Lethal Injection and Recent Legislation. In April 2008, the U.S. Supreme Court upheld the lethal injection procedures used in Kentucky (Baze v. Rees). However, that decision did not involve questions about the proper adoption of new procedures, and another state’s procedures might differ sufficiently from Kentucky’s as to render them unconstitutional.