Why California OK'd, then delayed first execution in years

California was set to execute a man convicted in 1982 of rape and murder on Thursday, but a shortage of one of the drugs used in lethal injections was cause for a further reprieve, courts ruled.

By , Staff writer

California’s on-again, off-again execution of a convicted murderer spotlights several issues in America’s capital punishment system, say national observers. The death penalty is currently legal in 35 states.

Changing public attitudes over the death penalty and states' economic concerns are joined now by scarce availability of the drugs used for lethal injections as reasons for calling off scheduled executions. Several studies showing faulty crime lab procedures and racial or economic bias in court sentencing add to the calls for a halt to capital punishment, experts say.

The execution of Albert Brown, convicted in 1982 of rape and murder, was scheduled for Thursday at 9 p.m. but was canceled after state and federal courts attempts to put him to death before the prison’s supply of lethal chemicals expired at midnight. The execution would have been California’s first since 1996, when a federal judge imposed a moratorium on them, holding that the state’s lax framework for lethal injections was creating an unacceptable risk of botched executions.

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In the interim, California revised its procedures and training policies and built a new death chamber, which state officials claim complies with standards for lethal injections established by a 2008 US Supreme Court ruling.

US District Judge Jeremy Fogel of San Jose granted a stay of Mr. Brown’s execution late Tuesday, saying he needed time to decide whether the new policies had repaired the shortcomings he found in his 2006 ruling. His reasoning was that California’s apparent desire to execute Brown before its supply of the drugs needed to do it expired was not a justification for a hurried review. The state was appealing the stay when the California Supreme Court issued an order Wednesday prohibiting the execution.

“The back and forth of this case stems from the underlying question of whether certain procedures violate the eighth amendment banning cruel and unusual punishment and whether the cocktail of chemicals constitutes gratuitous pain – but that sidesteps the issue of whether people really have the stomach for the death penalty anymore,” says Robert Pugsley, professor of law at Southwestern Law School. “This case raises questions about the purpose of the death penalty in today’s society.” [Editor's note: The original version misnamed Southwestern Law School.]

Brown's case brings up an anomaly in capital punishment: the nationwide shortage of several widely-used anesthetics. The competition for the drugs runs into anesthesiologists who want them for operations.

Two executions in Kentucky were postponed this year when it was found the state had just one dose of the powerful anesthetic thiopental sodium for three convicted murderers scheduled to be put to death. The state eventually decided to execute the defendant in the oldest case. An execution scheduled for Oct. 26 in Arizona may be postponed because the state can’t get thiopental sodium in time.

At the heart of the resistance to the death penalty are those who see inconsistencies in the trial process.

“California’s is just one more example of many in what is a failed government program to execute people,” says John Holdridge, director of the ACLU's Capital Punishment Project in Durham, N.C. He ticks off a litany of recent studies showing problems with innocent people being convicted. A study released last year by the Equality Justice Institute that shows that over the past decade, 23 capital cases in Alabama have been reversed after it was proven that prosecutors illegally excluded black people from jury service, he points out.

He also highlights an investigation last year by the North Carolina Innocence Inquiry Commission that showed that in over 200 cases, errors were made involving blood tests, seven of which were death penalty cases, including three in which the defendant had already been executed.

"At one end of the spectrum is that we are finding more and more reasons why we don’t always get the conviction right, and at the other end states are really not equipped to pay for it, creating real tension on the system,” says Cassy Stubbs, a senior staff attorney for the Capital Punishment Project.

"The main question is whether we should be executing people at all, especially if there is any ambiguity as to whether they are guilty of the crime, ” says Dr. Allison Cotton, an associate professor of criminology at the Metropolitan State College of Denver. “Ambiguity should automatically result in a life sentence,” she says.

Cotton says the validity of the capital punishment system is suspect. She points out that over 200 people have been wrongfully convicted and had their convictions overturned with DNA evidence in recent years. "If the system that sentences people to death is faulty at all, the death penalty should be abolished because we can’t take it back once a person has been executed.”

The California Supreme Court’s decision gives several other condemned inmates and Brown a reprieve until at least early 2011.

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