On appeal from the New Jersey Department of Corrections and from the Superior Court of New Jersey, Law Division, Mercer County, MER-L-1740-02.
Before Judges Pressler, Ciancia and Alley.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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*fn1 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. In bringing this challenge, appellant sought a number of documents from DOC which DOC claimed to be privileged. By limited-remand order of this court, the claims of privilege were adjudicated by the Law Division and upheld as to some documents and rejected as to others. Before us now are appellant's challenge to the regulations and the appeal and cross-appeal by appellant and DOC from privilege rulings adverse to each.
We address first the challenge to the regulations. Our consideration is guided by the general proposition that rules and regulations adopted by an administrative agency are presumed reasonable and are required to be sustained if neither arbitrary nor unreasonable to the end that the agency's statutory grant be liberally construed to effectuate the legislative purpose. See, e.g., In re N.J. American Water Co., 169 N.J. 181, 188 (2001); Abbott by Abbott v. Burke, 149 N.J. 145, 174 (1997); L.T. v. N.J. Dept. of Human Services, 134 N.J. 304, 320-321 (1993); In re Commissioner's Failure, 358 N.J. Super. 135, 149 (App. Div. 2003). Accordingly, judicial review is limited to these three inquiries: (1) whether the administrative action violates express or implied legislative policies, (2) whether there is substantial evidence in the record to support the agency's actions, and (3) whether the agency clearly erred in reaching a conclusion unsupported by relevant factors. Matter of Musick, 143 N.J. 206, 216 (1996). See also In re Distribution of Liquid Assets, 168 N.J. 1, 10-11 (2001); R & R Marketing L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); Public Serv. Elec. and Gas Co. v. State Dept. of Envtl. Protect. 101 N.J. 95, 103 (1985).
As we review this record, we think it clear that 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. We do not regard ourselves as being 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. See, e.g., State v. Koskovich, 168 N.J. 448, 541 (2001); State v. Loftin, 146 N.J. 295, 333 (1996); State v. Hightower, 146 N.J. 239, 252 (1996); State v. Martini, 139 N.J. 3, 20-21 (1994); State v. Ramseur, 106 N.J. 123, 168-175 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Nevertheless, we are satisfied that the cruel and unusual ban does have significant relevance in evaluating the validity's of the DOC's lethal-injection regulations. That is to say, as Chief Justice Wilentz made clear in Ramseur, supra, 106 N.J. 171-172, the Court's first consideration of the constitutionality of the death penalty since its reintroduction in l983, the test of cruel and unusual punishment is, in the end, informed simply by evolving, contemporary, community standards of decency and morality.*fn2 See also generally the concurring and dissenting opinion of Justice Long in State v. Koskovich, supra, 168 N.J. at 575. We are, therefore, satisfied that in dealing with the issue of whether the regulations comport with and effectuate legislative policy in having reenacted the death penalty, we must consider their consistency not only with the statutory mandate but also with contemporary standards of decency and morality as well. It is in that context that we evaluate the adequacy of the administrative record to support DOC's decision-making.
So viewed, we have concluded that because they lack evidential and reasoned support in this record, several of the regulations challenged by appellant appear to be arbitrary and unreasonable. We cannot, however, determine from this record whether there is indeed available rational support for them that was considered but unexpressed by DOC. Because of the patent gravity of the life and death issues implicated by the regulations, we have concluded that rather than simply striking down those regulations, 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, we are satisfied that the regulations as a whole, as they now stand, may not be implemented by the carrying out of a death sentence.
We address first the appellant's challenges in which we find merit. 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. 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." 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 DOC was relying on its assumption that once the lethal injection has been administered, its effects are irreversible. That, at least, is how we interpret its tautological explanation that"the execution substances, when injected into the person sentenced to death, are lethal...." 33 N.J.R. 2013. 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 DOC from other jurisdictions showing that death is not instantaneous but may take up to thirty minutes. Our concern is that DOC itself does not have medical expertise, and nothing in the record suggests medical consultation and opinion on the reversibility issue or, indeed, whether there are any appropriate lethal drugs whose effects might be reversible.
We think it plain that 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. We appreciate that 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 a chance at life, if there indeed is chance, and we are confident that contemporary standards of decency and morality would dictate that that chance be accorded. Consequently, unless and until DOC comes forward with strong medical evidence that there is no possibility of reversibility and no other suitable drugs whose effect is reversible, we are persuaded that 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 connected to him. 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, we appreciate that these concerns, when legitimate and having a rational nexus to governmental interest, normally afford an adequate justification for infringement upon the right of both free speech and free press. See generally Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64, 79 (1987); In re Rules Adoption Regarding Inmate Mail, 120 N.J. 137, 147-154 (1990). Our difficulty is that we see nothing in this record supporting DOC's assertion that penological objectives and safety concerns are genuinely served by these restrictions. We do not foreclose DOC's opportunity to develop a record that will somehow point to a rational connection between these infringements and legitimate justification therefor, but we do not find them in the mere recital of the shibboleth that the safety, security and orderly operation of the Capital Sentencing Unit require 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. We do not believe that this is a matter of voyeurism. We believe, to the contrary, that it is a matter of demonstrating to the public the reality of the choices it makes. We therefore conclude that before 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 ...