Sims

The question presented by this appeal is whether regulations promulgated by California’s Department of Corrections and Rehabilitation (CDCR or agency) regarding the manner in which the death penalty is carried out substantially comply with California’s Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.). Finding that the CDCR “substantially failed to comply” with mandatory procedural requirements of the APA, the trial court invalidated the regulations in their entirety. (§ 11350, subd. (a).) We shall affirm the judgment.

BACKGROUND

California law, which provides for capital punishment, offers persons sentenced to death a choice between execution by lethal injection or by lethal gas. (Pen. Code, § 3604, subd. (b).) The responsibility to develop procedures for administering both forms of execution lies with the CDCR. (Pen. Code, § 3604, subd. (a).)

Until 2006, the CDCR’s standards for conducting lethal injections were set forth in a procedural manual known as San Quentin Operational Procedure No. 0-770 (OP 770). In December of that year a federal court ruled that the protocol prescribed by OP 770 violated the Eighth Amendment’s prohibition against cruel and…