The Court of Appeal contends that the questions over constitutionally barred "cruel and unusual punishment" -- that's the Eighth Amendment -- that have kept executions on hold in this state since 2006 have not yet been answered. The state's supply of sodium thiopental expires on Oct. 1, and more might not be available until 2011. If it takes until then to settle this matter, the Court of Appeal opined, so be it.
In 2006, Fogel ruled that San Quentin officials' subjected prisoners to undue risk of pain via shoddy execution techniques -- which was the impetus for the prison to built its brand spanking new death chamber.
Fogel has not yet considered whether the state's new execution protocols have satisfied the conditions that led to his 2006 order. But he last week refused to halt Brown's scheduled execution, offering the convicted child rapist and murderer a choice of a one-drug or three-drug lethal "cocktail." This was a mistake, the Court of Appeal ruled.
"The district court's decision to provide Brown the choice of a one-drug option is not consistent with California state law and procedures," reads the ruling. "California law does not provide the condemned a choice between a three-drug protocol or a one-drug option. The only choice provided is between lethal gas or lethal injection."
California didn't develop its one-drug system in resonse to Fogel's 2006 order, "thus the State has not, in its protocol, devised or implimented procedures for the single-drug option."
In short, giving Brown the choice between an untested method and one that calls for a rush deadline due to expiring drugs is an "undue burden" on the condemned prisoner.
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