U.S. District Court Judge Jeremy Fogel Clears Path for California Executions to Resume – But Will They?

The newly renovated San Quentin Prison Death Chamber
AP Photo

Well, for now – or should I say until Monday afternoon, California executions as per state and federal law can proceed.

A federal judge in San Jose gave the go-ahead today for next week’s scheduled execution of a convicted murderer from Riverside County, which would be the state’s first execution in nearly five years.

U.S. District Judge Jeremy Fogel, who blocked lethal injections at San Quentin State Prison in February 2006 because of haphazard procedures, untrained staff and the potential of inflicting excruciating pain, said revised state regulations and a U.S. Supreme Court ruling had removed constitutional obstacles to renewed executions.

Fogel acknowledged that he has not yet reviewed the state’s amended procedures to determine whether they still pose a risk of violating the constitutional ban on cruel and unusual punishment.

But he said the condemned inmate, Albert Greenwood Brown, could avert that risk by choosing to be executed with a single drug – a heavy dose of the sedative sodium pentothal – rather than the three-drug combination California has used in past executions.

The potential for excruciating pain comes from the second and third drugs, paralytic and heart-stopping chemicals, if the sedative fails to work properly. Fogel noted that Ohio and Washington state have used one-drug executions on nine prisoners in the last year without reported difficulties.

The Supreme Court ruled in 2008 that Kentucky’s lethal injection procedures, using the same chemicals as California and most other states, met constitutional standards. The court said a prisoner would have to present a “demonstrated risk of severe pain” to challenge an execution with those drugs.

Brown is scheduled to be executed at 12:01 a.m. Wednesday. Fogel said he would issue a stay if Brown chose a one-drug execution and the state refused to use that method. He gave Brown until 6 p.m. Saturday to make that choice.

State lawyers spelled out procedures for a possible one-drug execution in a court filing earlier his week but said they were not conceding that the procedure would comply with state law.

So, the people of California spend almost a $ 1 million (more than $800,000) for a new death chamber and countless employee hours for new procedures and retraining so the inmate has a choice of a one drug cocktail or the old standard method?

WTF?

Doesn’t anyone see this is a charade by Judge Fogel?

Judge Fogel obviously does NOT support the death penalty as a matter of personal conscience or whatever and has used every opportunity to throw up roadblocks. Interesting, that the Judge is so disinterested that he has not even toured the new facility or read the training manual. I would consider this judicial misfeasance if not out right neglect.

Anyway, Albert Greenwood Brown has until tomorrow night to decide if he wants a one drug execution or the three drug execution. If he chooses one drug and the State of California balks (says they are not ready to comply) then a stay is immediately granted. However, Judge Fogel’s order states that if Brown chooses one drug then he would have to waive his rights under state law which is the subject of a Marin County lawsuit which is pending.

Then, on Monday, a Marin County State of California judge will be asked to halt the execution while a lawsuit challenging the new lethal injection regulations is pending. Of course. Judge Fogel’s ruling today can be appealed to the Ninth Circuit Court of Appeals.

I still would not hold my breath that there will be any California executions next week or anytime soon.

Previous:

California Executions to Resume? Albert Greenwood Brown Would Be Next

California Executions May Resume By the End of 2008

Michael Morales Watch: US Supreme Court Upholds Lethal Injection Executions

Michael Morales Watch: Lethal Injection Hearings Delayed Again

Michael Angelo Morales Watch: California Governor Arnold Schwarzenegger Halts Construction of San Quentin Death Chamber

Michael Angelo Morales Watch: New San Quentin Death Chamber Under Construction

Michael Angelo Morales Watch: California Governor Schwarzenegger Proposes Revised 5-Point Lethal Injection Protocol

Michael Morales Watch: Judge Jeremy Fogel Rules – California Method of Lethal Injection Violates a Constitutional Ban on Cruel and Unusual Punishment

Michael Angelo Morales Watch: Execution Postponed INDEFINITELY

Michael Angelo Morales Watch: Execution Tonight?