A federal judge in San Jose ruled today that an execution scheduled at San Quentin State Prison next week can proceed, but only if state officials give the condemned inmate the choice of being executed with one drug instead of the usual three.
U.S. District Judge Jeremy Fogel turned down a request by Albert Greenwood Brown for a stay of his execution, scheduled for Wednesday, but on the condition that Brown is given the choice of being put to death with only one drug, the sedative sodium thiopental.
Brown, 56, was given the death penalty for the 1980 rape and murder of a 15-year-old girl in Riverside.
If the lethal injection execution is carried out, it will be the first in the state since January 2006.
Fogel also noted in his 11-page ruling that a separate challenge to executions in the state is pending in Marin County Superior Court.
Inmates who filed that case are also seeking a stay of California executions, and a Marin County judge is due to consider that challenge on Monday, according to Fogel’s ruling.
The Superior Court lawsuit contends the state’s adoption of a revised lethal injection protocol in July violated requirements of the state’s Administrative Procedures Act.
Fogel issued his ruling in connection with a lawsuit in which another condemned inmate, Michael Morales, claims the state’s three-drug lethal injection procedure risks being unconstitutional cruel and unusual punishment because an inmate could suffer extreme pain.
Morales claims that the third drug in the protocol, potassium chloride, can cause excruciating pain, while the second drug, pancuronium bromide, masks the pain by paralyzing the inmate.
Fogel, referring to himself as “the court,” wrote, “The court is satisfied that it can address this concern by allowing Brown himself to choose whether the second and third drugs in the protocol will be withheld.”
Fogel said that if the state does not agree to the condition of allowing Brown to choose the use one drug, “a stay of execution shall issue without further order.”
A spokesman for state Attorney General Jerry Brown said his office did not yet have a comment on the ruling.
Julia Cheever. Bay City News