ACLU Files Suit Demanding Accountability In California Execution Protocols


Death Penalty

(From Press Release) — The ACLU of Northern California and the law firm of Covington & Burling LLP today filed a lawsuit challenging the constitutionality of a state statute that gives unlimited discretion over executions to the California Department of Corrections.

“This law gives unelected bureaucrats too much power and it shields legislators from accountability on the death penalty process,” said Linda Lye, Senior Staff Attorney at the ACLU-NC Foundation. “This case is about one fundamental issue: accountability.”

Under California Penal Code §3604, the California Department of Corrections and Rehabilitation (CDCR) has been given unbridled discretion to develop an execution protocol. This runs counter to the notion of separation of powers which gives different branches of government different responsibilities, or powers. The Legislature cannot avoid fulfilling its duties, and the Executive branch cannot usurp legislative power.  With this separation, no one branch can become too powerful.

“The people of California, through their elected leaders, must have a say in and take responsibility for how this irreversible punishment is carried out,” added Mitch Kamin, a partner with Covington & Burling. “Whether or not you agree with the death penalty, there is no doubt that it is irreversible. It cannot be exempt from careful scrutiny in an open forum — the Legislature.”

“When unelected officials get to make all the decisions about how to handle executions,” said Lye, “we can expect that they will prioritize their own needs above the needs that the people through their elected leaders would prioritize – for example, the needs of the public, the press, the witnesses, and the death row inmate. It is typical of human nature and state government to take the path of least resistance.  And we’ve seen the result.  Each time CDCR has issued a protocol, the courts have rejected it.”

The complaint details a number of controversial choices corrections official made in designing California’s execution process including choices related to the reliability and transparency of the execution process.

California’s death penalty has been in effect since 1978. A total of 13 executions have been carried out at an estimated cost of $5 billion to state taxpayers. The last time the state executed an inmate on death row was in 2006. Since then, the state’s death penalty process has been mired in litigation and public controversy. The CDCR has been trying to issue an appropriate, reliable protocol for the past ten years.

“Botched executions in Oklahoma, Ohio, and Missouri have left witnesses, officials and the public appalled,” added Covington & Burling Partner Donald Brown. “Those sickening events underscore why it is so dangerous for unelected administrators to unilaterally develop execution protocols.”

In its complaint, the ACLU-NC asks the Court to assign responsibility over the fundamentals of the death penalty process back to elected officials instead of unelected bureaucrats at the CDCR.

California has voted on the death penalty three times in the past four years, and all elections resulted in razor-thin margins. While 4.3 million ballots remain to be counted, it appears that Proposition 66 garnered barely 50% of the vote.

“Our electorate is deeply divided on whether California needs or can even afford to prop up its deeply flawed death penalty,” said Lye. “An issue of such heated controversy cannot be delegated to a single group of bureaucrats and activists. Legislators are elected and being accountable is their job.”


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3 thoughts on “ACLU Files Suit Demanding Accountability In California Execution Protocols”

  1. Tia Will

    “The people of California, through their elected leaders, must have a say in and take responsibility for how this irreversible punishment is carried out,”

    Each time CDCR has issued a protocol, the courts have rejected it.”

    Over the past eight years I have gained far more knowledge of the workings of the CDCR than I would ever have sought. And that is part of the problem. I try my best to stay informed about human/civil rights issues, and yet, I had no idea just exactly how are poorly our imprisoned population is treated with regard to medical issues. The CDCR routinely adopts practices and protocols that do not meet judicial scrutiny. This is true with regard to both general and mental health standards resulting resulting in the Coleman ( mental health) and Plata ( medical care)  law suits and federal receivership which have cost the state millions of dollars over a duration of more than ten years in legal fees simply because the CDCR was not meeting basic human needs in its health care provision . We simply cannot entrust to the CDCR  unilateral discretion over this policy of  an irreversible form of punishment based on their own history and performance. If we will not do it for the basic humanity of ourselves and the prisoners, then we should consider oversight for the sake of our own pocketbooks.

  2. WesC

    It is a little more complicated than this.

    The eight amendment of the constitution prohibits the state from inflicting cruel and unusual punishment.  The supreme court has ruled that to be deliberately indifferent to the health care needs of inmates is cruel and unusual punishment.

    CDCR ran prisons without providing for adequate medical care.  This is not being disputed by anyone.  CDCR was sued and an agreement was reached whereby CDCR provided a detailed plan complete with policies and procedures on how they were going to bring care up to the community standard.  The legislature time and time again refused to appropriate the funds necessary to hire clinicians or to build adequate clinical space where care could be provided.  No legislator wanted to be on record as voting for hundreds of millions of extra tax dollars for inmate health care while at the same time denying additional funding for education, transportation, etc.  After several years of very little progress a federal court judge appointed a receiver to be in charge of prison health care.  The Receiver was answerable to the federal judge and not the legislators.  The Receiver could provide the judge with detailed requests for funds to hire/build etc, and the judge would then order the State Treasury to release the funds.  The legislators could now be on record as having never voted for additional tax dollars for inmate health care, and say that their hands were tied by some activist federal judge.  If the state refused the Governor could in theory be held in contempt of court.  The laborious process of bringing a 33 prison, 180,000 inmate, 3 hospital, 12 nursing home system up to community standards was thus begun.   I think you will appreciate that these care guidelines meet community standards

  3. Tia Will


    I agree that the issue is more complicated than I wrote and I appreciate you filling in the details. However, I will stand by my central point that the CDRC has historically not been proactive in designing process and programs that meet judicial standards and therefore should not be trusted to unilaterally do so in the case of capital punishment protocols.

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