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.