BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
1018 (Harman)
Hearing Date: 05/27/2010 Amended: 03/23/2010
Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety
7-0
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BILL SUMMARY: SB 1018 requires the California Department of
Corrections and Rehabilitation (CDCR) to adopt a one-drug
protocol for executions, to be implemented by January 1, 2013.
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Fiscal Impact (in thousands)
Major Provisions 2010-11 2011-12 2012-13 Fund
Develop new protocol $50-100 $100-200
$50-100 General
Litigation costs/savings Unknown; potential litigation
costs averted General
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STAFF COMMENTS: SUSPENSE FILE.
This bill provides that CDCR shall develop and implement a
lethal injection protocol for use on and after January 1, 2013,
that utilizes the injection of a lethal quantity of an
ultra-short-acting barbiturate or other similar drug, not to be
used in combination with a chemical paralytic, in a quantity
sufficient to cause death according to standards established
under the direction of CDCR. The costs to this bill would likely
occur in fiscal years 2010-11 and 2011-12, since the bill
requires the protocol to be finalized and implemented by January
1, 2013.
Recent case law (Morales v. Tilton, 465 F. Supp. 2d 972, 974
(N.D. Cal. 2006)) required CDCR to address various issues
related to its lethal injection procedure. Subsequent to the
Morales decision, CDCR began revising its protocol for lethal
injection. In November 2007, the Marin County Superior Court
held that the Administrative Procedure Act required CDCR to
promulgate the protocol as a regulation, and CDCR's appeal of
that ruling was denied a year later.
Draft regulations were made, and submitted to the Office of
Administrative Law (OAL) in April 2009; they were put out to
public comment, as required by statute. Changes were made
pursuant to the comments, and they were put out for comment
again. The next draft was due May 1, 2010 and CDCR submitted the
regulation (last week) to the OAL which has 30 business days to
review the regulation. The OAL can accept or reject the
regulation. After the OAL approves the regulation, the process
is officially over, but it possible that at that point
additional legal challenges will be brought regarding the new
protocol. The new regulations from CDCR keep the three drug
protocol with the drugs that were being used at the time of
Morales but change the dosage of the first drug, the sedative,
and make other changes regarding the drug administration
procedures
Page 2
SB 1018 (Harman)
As part of the CDCR process for revising the lethal injection
protocol, it had to allow for public comment on its changes to
the death penalty procedures. CDCR released a draft of the new
protocol and allowed for public comment on the draft. CDCR
counsel had to
respond to each public comment submitted. During its current
review, it received more than 8,000 comments, and compiled a 182
page report "summary" responding to those comments. The comments
varied in topic from general death penalty opposition, to
administrative procedures, cost, specific drugs used in lethal
injection, CDCR management, constitutional challenges, and even
8th Amendment case law. Consequently, while some of the answers
were general responses (used multiple times), other comments
received lengthy responses providing case precedent, state law,
and technical information addressing the comment.
In adopting a one-drug protocol, CDCR would incur additional
costs to repeat a more limited version of the process it may
have (depending on the OAL's evaluation) just completed last
week. Because this bill only requires CDCR to revise one part of
the protocol, most of what the department has already produced
could remain intact. The extent of the changes needed is
unclear, but presumably parts of the protocol not directly
related to the lethal injections (such as access to counsel or
clergy) could remain the same. Thus, implementing this bill
would not be as costly or comprehensive as the process for
developing the three-drug protocol. Moreover, as a one-drug
lethal injection is seen by many as more humane, it is possible
that adopting a one-drug protocol will lessen litigation in the
future and result in significant state savings.
There will be, however, significant immediate costs to CDCR to
continue the process of adopting a formal lethal injection
protocol. It is reasonable that there will be at least one staff
person overseeing the project, and it is likely that the team
that just finished the three-drug protocol will continue with
this new project.
In order to create a one-drug protocol, CDCR will have to put
its draft protocol out for public comment again, and respond to
what will likely be thousands of comments. Even though the
public had the opportunity to comment on any part of the
three-drug protocol, the death penalty is intensely
controversial and will yield even additional comments that CDCR
must review and respond to. Many of the responses can likely be
recycled from the previous public comments, but it still
requires counsel to review the comments, and decide on an
appropriate response. If CDCR receives even half of the 8,000
comments submitted for the three drug protocol, counsel would
have to review decide on a response to nearly 20 comments per
work day, for a year.