In the Matter of Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23,

N.J.S.A. 2C:49-1 to -12 prescribes the procedures for carrying out a sentence of death by lethal injection. N.J.S.A. 2C:49-11 authorizes the Department of Corrections (DOC) to adopt rules and regulations to implement the statute. The DOC did so, first by promulgating an administrative policy and thereafter by the adoption and readoptions of regulations pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1, et seq. The regulations, codified as Chapter 23 of Title 10A of the New Jersey Administrative Code, were adopted in 1986, readopted with some amendment in 1992, again readopted with some amendment in 1996, and most recently readopted with some amendment in 2001. Appellant New Jerseyans for a Death Penalty Moratorium challenges the current regulations, contending that they violate the cruel and unusual punishment proscriptions as well as the free speech guarantees of both the federal and state constitutions. I. The main thrust of appellant’s cruel and unusual argument is addressed not to the regulations it challenges but to the statutory authorization of capital punishment. The court is not at liberty to revisit that legislative decision in view of the Supreme Court’s repeated reaffirmation that, conceptually at least, capital punishment, if attended by mandated and appropriate adjudicative safeguards, does not violate the constitutional proscription. Nevertheless, the cruel and unusual ban does have significant relevance in evaluating the validity’s of the DOC’s lethal-injection regulations. Therefore, in dealing with the issue of whether the regulations comport with and effectuate legislative policy in having re-enacted the death penalty, the court must consider their consistency not only with the statutory mandate but also with contemporary standards of decency and morality as well. Held: Because the regulations lack evidential and reasoned support in the record, several of the regulations challenged by appellant appear to be arbitrary and unreasonable. It cannot, however, be determined from the record whether there is indeed available rational support for them that was considered but unexpressed by the DOC. Because of the patent gravity of the life-and-death issues implicated by the regulations, rather than simply striking down those regulations, the DOC should have the opportunity to give them further consideration, by additional hearings if necessary, and to articulate, if it is able to do so, a supporting basis for those determinations. In the meantime, however, the regulations as a whole, as they now stand, may not be implemented by the carrying out of a death sentence. To begin with, appellant challenges the deletion from the 2001 regulations of the previous requirement that during the execution, there be available an emergency cart containing “such equipment, supplies and medications as may be needed to revive the inmate in the event a last minute Stay of Execution is imposed . . . .” N.J.A.C. 10A:23-2.12(b) (repealed by R. 2001, d. 315). A requirement that the inmate have a cardiac monitor was also then deleted. The DOC explained the deletion of these requirements simply by noting that “an emergency cart located at the exterior wall of the execution chamber is neither mandated nor operationally appropriate.” See 33 N.J.R. 2991. It also noted that inmates who had been sedated but not yet lethally injected would be able to be revived without the need for the cart. It appears that in this regard the DOC was relying on its assumption that once the lethal injection has been administered, its effects are irreversible. The irreversibility of the lethal injection may, indeed, be a fact that is medically sound, but without an expressed reasoned medical opinion, that cannot be assumed to be true, and medical opinion might, in fact, suggest the contrary. This is particularly so in view of information collected by the DOC from other jurisdictions showing that death is not instantaneous but may take up to 30 minutes. An inmate who is being executed in error because a stay of execution has been issued after the injection is administered is wrongfully deprived of due process and fundamental fairness, to say nothing of life itself, if the state does not take every feasible and possible step to correct that error. Simply assuming irreversibility without an articulated medical basis is not enough. The grant of a stay of execution communicated to prison authorities after the lethal injection has been administered is not a likely event. It can, however, happen. It is a foreseeable occurrence. And should it occur, there can be no justification for depriving that inmate of a chance at life, if there indeed is chance, and contemporary standards of decency and morality would dictate that that chance be accorded. Consequently, unless and until the DOC comes forward with strong medical evidence that there is no possibility of reversibility and no other suitable drugs whose effect is reversible, a death sentence cannot be carried out under these regulations. Appellant’s free speech-free press argument is based on several of the provisions of the regulations, namely, N.J.A.C. 10A:23-2.2(b)(3)(iv), forbidding “contact of any kind . . . between the person sentenced to death and any member of the news media”; N.J.A.C. 10A:23-2.5, imposing a blanket prohibition on filming of the execution, irrespective of by whom filmed and whether or not the film is ever displayed; and the implementation, by DOC protocol, of the regulation dealing with media witnesses to the execution, N.J.A.C. 10A:23-2.4(h) and (i), permitting media witnessing only after the inmate is strapped to the gurney and the intravenous lines are connected to him. The DOC asserts that these limitations are justified by considerations of the inmate’s privacy, legitimate penological objectives, and the security and safety needs of the correctional institution. The inmate-privacy suggestion is easily dealt with. The inmate can be given the choice of whether he wishes to speak to the press or have the execution filmed or have it witnessed by the media at some point prior to being strapped to the gurney and the intravenous lines connected. The free-speech concern is not, of course, implicated unless the inmate wishes to speak with the media, and any conflict between the inmate’s right of privacy and the right of the press to fully witness and document the execution process simply does not arise where the prohibition on the press is absolute irrespective of the consent or acquiescence of the inmate and his family. With respect to institutional safety and security, there is nothing in the record supporting the DOC’s assertion that penological objectives and safety concerns are genuinely served by these restrictions. There is, on the other hand, a significant public interest to be served by inmate opportunity for self-expression and as full a media coverage as is consistent with legitimate institutional concerns for safety, security and penological objectives. It is one thing for proponents and opponents to talk about capital punishment as an abstract proposition. It is quite another to see it carried out. Contemporary and evolving community standards of decency and morality are not reliably developed in a vacuum and under sanitized conditions, but rather should be based on an appreciation by the community of just what is involved, in human terms and in terms of decency and morality, in the state’s putting a person to death. This is not a matter of voyeurism. It is a matter of demonstrating to the public the reality of the choices it makes. Therefore, before the DOC can deprive the inmate of his right to be heard, and before it can deprive the press of the right to report in detail on the execution process, and before it can deprive the public of the right to know how the process is actually carried out and what its implications are, it must show with some degree of specificity how its legitimate concerns for institutional safety and security and penological objectives are advanced by the restrictions of the regulations. As capital punishment by lethal injection remains a constitutionally unobjectionable legislative choice, the regulations are reasonably based on adequate evidential support and are consistent with the legislative objectives. With respect to the type of drugs and their amount to be used in the lethal injection, the DOC has continually expressed concern that the execution be carried out as painlessly and humanely as possible, and those concerns have dictated its choice of drugs within the parameters of N.J.S.A. 2C:49-2, a choice which is a matter of some discretion pursuant to N.J.S.A. 2C:49-3(a), which leaves to the DOC the determination of “the substances . . . to be used in an execution.” Appellant’s concern that the lethal-injection technique might cause unnecessary pain and suffering not contemplated by the Legislature or the DOC because of an idiosyncratic response by the inmate or a so-called botched execution or because the injection is not administered by a physician are functions not of the regulations but of the capital punishment statute itself. Given the underlying adjudicated constitutionality thereof, it cannot be said that the regulations fail reasonably to implement the statute. Appellant also objects to the regulations based on its assertion that the procedures are derived from recommendations of Fred Leuchter, who, it claims, is unqualified by education for that task and who, if not himself a Neo-Nazi, has given support to the more outrageous claims of Neo-Nazis. Not only are the personal beliefs of Leuchter irrelevant, but beyond that, the record demonstrates that in the two decades during which the DOC has worked on lethal-injection procedures, it has consulted with many other sources. These are not Neo-Nazi-inspired regulations. Also, the DOC did not fail to do a federal-standards analysis as required by the Administrative Procedure Act, N.J.S.A. 52:14B-22 to -24, and N.J.A.C. 1:30-5.1(c)(4). The DOC’s federal-standard statements were adequate to comply with this obligation. Remanded to the DOC. The implementation of the regulations is stayed until reconsideration has been completed. — Digested by Steven P. Bann [The slip opinion is 17 pages long.] For appellant/cross-respondent New Jerseyans for a Death Penalty Moratorium — Kevin D. Walsh. For respondent/cross-appellant Department of Corrections — David M. Ragonese, Deputy Attorney General (Peter C. Harvey, Attorney General; Patrick DeAlmeida, Deputy Attorney General, of counsel).