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September 24, 2010

Federal ruling seems to push California toward one-drug execution protocol

As detailed in this new article in the San Jose Mercury News, which is headlined "Judge may allow execution to go forward," California is (perhaps?) getting closer to resume executions after a five year hiatus.  Here are the particulars from a new ruling from the federal judge who put the system on hold way back in 2006:

A federal judge today refused to block the scheduled execution next week of a condemned Riverside County killer, but put a wrinkle in his ruling that may mean the inmate can only be put to death with a fatal dose of one anesthetic drug and not the three-drug procedure recently adopted by California prison officials.

U.S. District Judge Jeremy Fogel gave Albert Greenwood Brown, scheduled to be executed next Wednesday, until Saturday evening to request an execution with a single drug, a departure from California's preferred and planned method of administering lethal injection. If he does so and California officials refuse to comply with that restriction, Fogel said he will block the planned execution of Brown, on death row since 1982 for the rape and murder of a 15-year-old girl.

In an 11-page order, Fogel concluded that he does not have the legal authority to block Brown's Sept. 29 execution unless state officials fail to take steps that he believes address concerns that the lethal injection method will not cause a cruel and inhumane death. The judge indicated that a fatal dose of sodium thiopental may avoid the chief worry in lethal injection executions: that the two drug administered later would mask that face that an inmate experiences agonizing pain before being declared dead.

Fogel noted that nine single-drug executions have been carried out in Ohio and Washington without any "apparent difficulty." In what is a high-stakes decision, if Brown does not opt to be executed with the single drug, the judge did find that California can proceed with the execution under its usual three-drug procedure.

UPDATE:  The full 11-page ruling reference above can be accessed at this link thanks to Crime & Consequences.

September 24, 2010 at 05:36 PM | Permalink


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I like Fogel's logic here. He is telling Brown to choose the method, knowing that choosing the method makes it harder to claim the method violates his rights. He might have had a better chance challenging the one-drug injection if he didn't have to make the choice, given that prosecutors seem to have pulled it out of thin air rather than put it through the extended process like the three-drug method.

Posted by: MikeinCT | Sep 24, 2010 5:45:55 PM

good point and opinion by Fogel. Everyone thought the one drug injection was going to take longer, but it doesn't. The only problem with using sodium piotental exclusively is that the states are going to exhaust their supplies faster. I am skeptical about this "nationwide shortage". Maybe some of the states who are really interested in justice for victims should contact others who are not like Florida, to purchase supply.

Posted by: DaveP | Sep 24, 2010 6:01:32 PM

I still don't get where a federal district court would get the authority to tell a state how they must administer executions.

Authority to say the method they are using won't be accepted, okay (barely), although that is now severely constrained by Baze). But to say here is what you will do, I see no grant of power for that.

Posted by: Soronel Haetir | Sep 24, 2010 6:43:42 PM

Its obvious that the one drug protocol is less susceptible to attack than the three drug. Other judges have been reversed when they have ordered the state to change to one. (Missouri,TN) However, in California's situation, it is probably better to change it now and avoid more litigation. It would be interesting to see if the state could prevail if Fogel refused to allow the original protocol.

Posted by: DaveP | Sep 24, 2010 6:50:57 PM

Fogel has no authority to do this. Under Baze, a stay is not proper for the three-drug protocol. This is one arrogant judge.

Posted by: federalist | Sep 24, 2010 7:38:14 PM

i still say nothing beats a bullet to the brain.

Posted by: rodsmith | Sep 25, 2010 12:18:54 AM

" Under Baze, a stay is not proper for the three-drug protocol."

Nailed it.

Posted by: Bill Otis | Sep 25, 2010 8:20:40 AM

May God have mercy on this man's soul and may God grant peace to the innocent children and their families whose lives where affected by these crimes. I am a working mother.

Posted by: C. Massey | Sep 26, 2010 3:18:12 AM

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