This just in: Judge Fogel has just issued a decision in the Morales case, which, in 2006, started the quest for reformed lethal injection proceedings in California. The reason for this timing is Brown's impending execution and his own motion for a stay, which makes arguments that are virtually identical to those of Morales. The court, therefore, felt compelled to address the Morales issue because of its direct impact on the Brown case.
The issue addressed by the court has to do with the method of execution, which was the bone of contention in the Morales case. Morales' and Brown's argument focuses on the 8th Amendment implications of choosing to execute inmates using a combination of two chemicals, which arguably cause an unconstitutional level of pain and suffering. Instead, the court required CDCR to rework the execution protocols so as to administer only one drug--sodium thiopental, a barbiturate--instead of two. When Morales raised this argument in 2006, the stay of execution was granted solely because this condition, apparently essential for compliance with the 8th Amendment, was not met.
Therefore, in Brown's case, the fate of this execution basically depends on the method CDCR chooses to adopt. The court believes that CDCR can step up to the task and administer a single-drug execution:
[T]he court is satisfied that the procedure described in Defendants' submission is sufficient to eliminate any "demonstrated risk" of a constitutional violation. The fact that nine single-drug executions have been carried out in Ohio and Washington without an apparent difficulty is undisputed and significant.
So, if the only problem here is which drug we're using, what sort of solution does Judge Fogel have? Apparently, it's all about giving Brown the choice about his method of execution and having CDCR comply. This is the order verbatim:
If Brown timely elects to be executed by the injection of sodium thiopental only, Defendants shall carry out the execution. . . except that they shall do so using sodium thiopental only and in the quality and in the manner described in their submission dated September 23, 2010;
if Brown timely elects to be executed by the injection of sodium thiopental only, and if for any reason Defendants decline to proceed in accordance with that election, a stay of execution shall issue without further order.
I am extremely disheartened about this. Judge Fogel resents the state's decision to schedule an execution, though he admits that there is nothing that legally bars them from doing so. Therefore, all he can do is compel them to go forth with a one-drug injection, which is not the state's preferred method. It is sobering and disappointing that a broad issue eventually gets narrowed down to the question of type of drug. One also has to wonder why it is Brown, of all inmates, who is to be executed on Wednesday. Not knowing the answer to this question, all I can say is that it is particularly difficult to handle this situation when the person in question is not arguably innocent or mentally incompetent.