The execution of Albert Greenwood Brown, 56, would have been California’s first in nearly five years.
U.S. District Judge Jeremy Fogel suspended the execution until he completes reviewing a lawsuit that claims the state’s lethal injection procedure risks causing unconstitutional severe pain.
“It appears that Brown has raised substantial questions of fact as to whether at least some of the deficiencies” previously identified in 2006 might not have been corrected in the state’s recently revised lethal injection protocol, Fogel wrote.
Brown was given the death penalty for the 1980 rape and strangulation of Susan Jordan, 15, of Riverside, whom he abducted as she walked to her high school.
The stay order can be appealed to the 9th U.S. Circuit Court of Appeals in San Francisco and to the U.S. Supreme Court.
“We will appeal to the 9th Circuit,” said Rachel Arrezola, a spokeswoman for Gov. Arnold Schwarzenegger.
But Natasha Minsker, director of death penalty policy for the American Civil Liberties Union of Northern California, said, “Judge Fogel got it right this time. We should take the time to make sure the serious issues and public concerns are addressed.
“This whole fiasco shows that California’s death penalty is dysfunctional and should be replaced with life without possibility of parole.”
Fogel had denied Brown a stay on Friday, but he re-evaluated the decision after a 9th Circuit panel late Monday ordered him to reconsider and to “take the time necessary” to review the revised protocol.
Fogel had ruled in a lawsuit filed by death row inmate Michael Morales in 2006, which was joined by Brown this month, that claims the state’s procedure violates the constitutional ban on cruel and unusual punishment.
The inmates contend the heart-stopping third drug used, potassium chloride, can cause extreme pain if the inmate is conscious, while the second drug, pancuronium bromide, masks any pain by paralyzing the inmate.
The first drug, sodium thiopental, is a sedative intended to make the inmate unconscious. But Fogel noted in his ruling that state records “indicate that sodium thiopental did not have its expected effect or function as expected in 64 percent” of the 11 previous lethal-injection executions in California.
Fogel said he expects to complete his review of the revised protocol by the end of the year.
He said a factor in his decision to grant a stay was the recently disclosed information that as a result of a nationwide shortage, the state has only enough sodium thiopental on hand for one execution. That supply will expire on Friday, and authorities don’t expect to obtain more until 2011.
As a result, Fogel said, the stay will affect only Brown’s execution.
In its order Monday night, a three-judge panel of the 9th Circuit expressed concern that the timing of Brown’s execution date might have been influenced by the expiration date of the sodium pentothal.
“After a four-year moratorium on executions in California, multiple proceedings in federal court, a state administrative law proceeding and state court appeals, it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug,” the panel said.
Fogel cited the appeals court’s concern and wrote that the drug expiration “hardly is a reason to forego a proper examination of the merits of Brown’s claim.”
As the execution date neared, with challenges pending in both federal and state courts, the window in which it could have taken place was narrowed to a several-hour period on Thursday night.
The execution couldn’t be held any later because of the Friday expiration of the drug. It couldn’t be held any earlier because Morales and inmate Mitchell Sims have until Thursday to appeal a separate state Court of Appeal ruling to the California Supreme Court.
The Sept. 20 appeals court ruling ordered an end to a 2007 Marin County Superior Court injunction suspending state executions, but the injunction remains in effect until the state high court decides whether to review the case.
Brown was originally scheduled to be executed on Wednesday.
After realizing that the appeal deadline extended to Thursday, Schwarzenegger issued a one-day reprieve, and the execution was rescheduled for 9 p.m. Thursday.
At the request of both sides, Fogel had postponed proceedings in the federal lawsuit while the state injunction was in effect.
Julia Cheever, Bay City News