Judges Question California Execution
By JESSE McKINLEY and MALIA WOLLAN
SAN FRANCISCO — With California’s first execution in more than four years rescheduled for this week, a federal appellate panel raised serious questions about the state’s motivation amid concerns about one of the drugs used in the lethal injection process.
Albert G. Brown Jr., 56, was convicted in 1982 of raping and strangling a 15-year-old girl in Riverside, Calif. He had been scheduled to die by lethal injection at 12:01 a.m. on Wednesday. But on Monday. Gov. Arnold Schwarzenegger, a Republican, postponed the execution to allow for more legal arguments on Mr. Brown’s behalf. The state Department of Corrections and Rehabilitation rescheduled the execution for Thursday evening.
Mr. Schwarzenegger’s reprieve came shortly after state officials announced that the execution would be the last in California until one of the drugs proposed for his execution — sodium thiopental, a barbiturate — could be restocked by the corrections department. The drug has been in short supply nationwide for most of the year, according to the Food and Drug Administration.
Moreover, Terry Thornton, a spokeswoman for the corrections department, confirmed that its supply of sodium thiopental was good only until Friday, just hours after Mr. Brown’s planned execution.
The timing seemed to shock the three-judge panel of the United States Court of Appeals for the Ninth Circuit. Late Monday, the panel ordered Judge Jeremy D. Fogel of Federal District Court — who had denied a stay of execution for Mr. Brown last week — to reconsider his decision, saying the plan to put Mr. Brown to death appeared to have been dictated by the rapidly approaching expiration date for its sodium thiopental.
“It is incredible to think that the deliberative process might be driven by the expiration date of the execution drug,” the panel wrote.
The appellate court also raised questions about the constitutionality of the state’s new, recently approved protocol for lethal injection — a three-drug cocktail similar to one used in other states — regulations that Judge Fogel has said he had insufficient time to fully ponder in light of Mr. Brown’s looming execution date.
Monday’s order from the appellate court capped a whirlwind day in which Mr. Brown’s fortunes seemed to rise and fall with each passing hour. Earlier Monday, Mr. Brown had been denied a stay from a state judge, Verna A. Adams, in Marin County, where San Quentin State Prison is, who said he had not shown that he would suffer undue pain during the process, something that could violate the Eighth Amendment prohibition on cruel and unusual punishment.
As for the drug issue, how exactly sodium thiopental became scarce is unclear. The Food and Drug Administration reported shortages in March, citing production issues with Hospira, a company in Illinois that is the sole American manufacturer.
A company spokesman, Dan Rosenberg, said that the drug was unavailable because an active pharmaceutical ingredient was in low supply and that Hospira was working to get the drug back on the market by early next year. But Mr. Rosenberg also expressed displeasure that the drug — meant to be used as an anesthetic — had found its way into death chambers.
“Hospira manufactures this product because it improves or saves lives, and the company markets it solely for use as indicated on the product labeling,” Mr. Rosenberg said in a statement. “The drug is not indicated for capital punishment, and Hospira does not support its use in this procedure.”
He added that the company had made that opinion clear to corrections departments nationwide.
On Monday, Ms. Thornton said her department was continuing with preparations for Mr. Brown’s execution and had enough sodium thiopental to stop Mr. Brown’s heart. She added that the state was “actively seeking supplies of the drug for future executions.”
Mr. Brown’s execution had been cleared on Friday by Judge Fogel, who had effectively halted executions in the state in 2006 after expressing concern about a three-drug cocktail commonly used in lethal injection procedures and various deficiencies in the state’s methods, including the training of execution teams, antiquated facilities and the preparation of execution drugs.
Since then, however, California has drafted detailed new regulations — approved this year — to guide executions, and it built a new death chamber at San Quentin, north of San Francisco.