Late on Monday (September 27), the U.S. Court of Appeals for the Ninth Circuit ordered U.S. District Judge Jeremy Fogel of San Jose, California, to recon­sid­er his plan that would have allowed the exe­cu­tion of Albert Greenwood Brown. In a rul­ing on September 24, Judge Fogel denied a stay of exe­cu­tion for Brown, and said that he lacked the time to inquire whether the state’s new lethal injec­tion pro­to­col con­tained suf­fi­cient safe­guards against painful exe­cu­tions. Fogel said that Brown could request that the state use a sin­gle drug (sodi­um thiopen­tal) for the exe­cu­tion, but Brown refused to make a choice. Brown’s exe­cu­tion is now sched­uled for September 30, and would be the first exe­cu­tion in the state since 2006 if it pro­ceeds. The appeals court said that it appeared that the state’s haste to exe­cute Brown was in part because California’s sup­ply of one of the drugs used in its lethal injec­tion pro­to­col, sodi­um thiopen­tal, has an expi­ra­tion date of October 1. The state has not been able to secure more of the lethal drug because of a nation­wide short­age that has affect­ed oth­er states. The man­u­fac­tur­er, Hospira Inc., has said that new sup­plies will not be avail­able until at least January 2011.

Excerpts from the 9th Circuit’s opinion:

“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. As the State acknowl­edges, addi­tion­al sup­plies will be avail­able in the first quar­ter of 2011. Timing is every­thing and the dis­trict court should take the time nec­es­sary to address the State’s new­ly revised pro­to­col in accord with Supreme Court authority.”


“Imposing on Brown such a choice between the new three-drug pro­to­col and a one-drug option nev­er adopt­ed by the State places an undue bur­den on Brown and is beyond the pow­er and exper­tise of the dis­trict court at this junc­ture. The result in this case should not be dri­ven by com­pro­mise nor by the State’s dead­lines super­im­posed on the dis­trict court’s already pend­ing review of the new execution protocol.”

(B. Egelko, ​“Court sends exe­cu­tion case back to U.S. judge,” San Francisco Chronicle, September 28, 2010). Click here to read a let­ter from Hospira, Inc indi­cat­ing that it is not their inten­tion that their their drugs be used for lethal injec­tion. See also Lethal Injection.

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