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California Moratorium on Executions Continues

Two days before his scheduled execution, the Ninth Circuit remanded back to the district court Albert Brown's Eighth Amendment challenge to the method of his execution to determine whether, under the "demonstrated risk" standard articulated by the Supreme Court in Baze v. Rees, 553 U.S. 35 (2008), Brown is entitled to a stay of execution.

Brown had intervened in the pending federal litigation of Michael Morales, who had raised virtually identical claims as those Brown sought to assert regarding California's three-drug lethal injection protocol. In Morales' case, the district court had previously found that the State's lethal injection protocol created at least "an unnecessary risk of unconstitutional pain." The result was a de facto moratorium on all executions in California. California sought to end that moratorium by executing Brown two days before the expiration date of its existing inventory of sodium thiopental, the execution drug it sought to use in lieu of the challenged three-drug protocol.

Brown's execution would have been the first in California in four years. The timing had caught the district court off guard. It was "surprised by the [State's] decision to seek an execution date for Brown" when it did. The district court had "always ... understood, apparently incorrectly, that executions could not resume [in California] until it had an opportunity to review [California's] new lethal injection protocol in the context of the evidentiary record" in the Morales case. According to the district court, it was not possible to engage in the required analysis of the relevant factual and legal issues in the few days that remained before Brown's scheduled execution. The Ninth Circuit's Order, noting that "it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug," instructed the district court to "take the time necessary" to conduct its analysis. Source: Morales v. Cate, 623 F.3d 828 (9th Cir. 2010).

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Related legal case

Morales v. Cate