But the attorneys cautioned in papers filed with U.S. District Judge Jeremy Fogel that they provided the information “without conceding that the court has the jurisdiction to order a one-drug execution or that such an execution would comply with state law.”
Death row inmate Albert Greenwood Brown, 56, is scheduled to be executed by lethal injection at San Quentin State Prison early Sept. 29 for the 1980 rape and murder of a 15-year-old girl in Riverside.
If the death penalty is carried out, it will be the first in the state since January 2006.
Brown’s lawyers have asked Fogel to halt the execution while he considers a lawsuit filed by another death row inmate, Michael Morales, challenging the state’s lethal injection procedures.
One of Morales’ claims is that the three-drug combination previously used in executions has the potential to cause unconstitutional extreme pain, while masking the pain by paralyzing the inmate.
Fogel said at a hearing Tuesday that he will rule on Brown’s stay request on Friday.
But during the hearing, he asked state Justice Department lawyers to inform him by today how the execution could be performed with just one drug, the sedative sodium thiopental, instead of the planned three.
He also asked how much notice the San Quentin execution team would need to make such a change. The questions suggested that the judge is considering an option of allowing Brown’s execution to proceed, but with the use of only one drug.
Sodium thiopental alone is not considered to cause pain and can be lethal if used in increased doses, but the execution takes longer.
The state attorneys answered in a three-page filing late today that a total of five grams of sodium thiopental would be used instead of three. They said the execution team would need three days’ notice to adjust training and preparedness exercises.
Earlier this year, corrections officials announced a revised protocol for the three-drug lethal injections, and this week, San Quentin officials unveiled a new execution chamber.
The changes were intended to address Fogel’s concerns that the there were inadequate training and supervision of the execution team and inadequate lighting, overcrowded conditions and poorly designed facilities in previous executions.
Morales’ lawsuit resulted in California executions being put on hold beginning in 2006.
In addition to Morales’ lawsuit, a separate state lawsuit by condemned inmate Mitchell Sims challenging the procedures by which the new protocol was adopted is now pending in Marin County Superior Court.
Any ruling made in either lawsuit can be appealed, potentially causing further delay in the resumption of executions.
Morales and Brown have argued in the federal case that Fogel must conduct an “impartial and orderly review” of the new protocol before it is used.
State lawyers have responded that the new regulations provide adequate safeguards, and that the execution team has been trained “to conduct Brown’s execution with an appropriate degree of care and professionalism.”
The three drugs used in previous lethal injection executions in California are the sodium thiopental, which is intended to make the inmate unconscious; pancuronium bromide, a paralyzing agent; and potassium chloride, which stops the heart.
Morales’ lawsuit contends that the combination could be unconstitutional cruel and unusual punishment because the third drug can be excruciatingly painful if the inmate is not truly unconscious, while the paralytic second drug makes it impossible for the inmate to speak or show pain.
Julia Cheever, Bay City News