California's $4 Million Rollercoaster Ride
By James Clark
California’s death penalty has always been a bit of a head-scratcher, but the news over the last two weeks may have the record for furrowed brows and rolled eyes. The legal drama that has unfolded as the state tries to execute Albert Brown has shocked legal experts, but just confused everyone else.
There’s a reason for that. Five years ago, when executions were put on hold, it was because of myriad problems with the process of putting people to death. Execution teams were poorly trained, didn’t understand the deadly substances they were handling, and were working in dark, cramped conditions. That’s a recipe for botched executions, which has happened too often in California. When Judge Jeremy Fogel, a federal judge, heard that evidence, he told the state they had to fix the procedure.
So that’s what the state tried to do for nearly five years. The problem is, it wasn't fixed. When Albert Brown’s execution date was originally set, legal experts reported little chance of the execution taking place because of no less than three pending lawsuits over the procedure and a brand new set of regulations that had never been reviewed by a judge. There were just too many open questions, and the state had simply not finished its task of creating a workable procedure. But Attorney General Jerry Brown went ahead anyway and set an execution date for Albert Brown, knowing full well all of these questions remained.
The result has been a legal rollercoaster with weeks of court hearings and media coverage in which Mr. Brown’s ultimate fate has changed almost by the hour.
Finally on Wednesday, barely a day before the scheduled executions, orders from both state and federal courts said the execution cannot proceed because the courts had not been given enough time to address all the remaining legal issues. Finally, just 30 hours before the scheduled execution, the AG acknowledged that the execution would not proceed.
Why the sudden rush to kill? After all, California has gone 4 1/2 years without any executions and in that time, the murder rate has gone down. The answer is an odd one: the expiration date of the lethal drug. The AG revealed on September 25 that the drugs they need to kill go bad on October 1, and the manufacturer says there won’t be any more available until 2011 (along with a statement about how this drug is supposed to heal people not kill them). Interestingly, the state seems very concerned about at least one line on the drug’s label (its expiration), but wholly unconcerned with another line (its intended use).
The courts have finally put a stop to the rollercoaster, telling the Attorney General quite clearly that we need to take the time to answer these questions before we rush to take a man’s life. The expiration date on the bottle should have nothing to do with it.
This fiasco has shown just how broken California’s death penalty has become. The people of California will be better off when we replace the death penalty with life without parole, requiring people in prison to work and provide restitution to victims’ families.
For those trying to get their heads around this, see below for a timeline of the basics.
August 30, 2010: Albert Brown’s execution is scheduled for Sept. 28 at 12:01 am, even though the five-year-long time out on executions is still in place.
August 31: A judge in Marin County affirms that the moratorium is still in place; execution off.
September 20: Court of appeals says the Marin judge was wrong and the moratorium on executions is lifted; execution back on.
September 24: Judge Fogel, still not satisfied with the procedure, comes up with a compromise: Albert Brown can choose between the same old procedure that probably never worked, or a new untested one that no one’s been trained for; execution still on.
September 25: Dept. of Corrections reveals that its lethal injection drugs will expire on October 1, and new drugs won’t be available until 2011. Execution still on, but it better be quick.
September 27: Governor Arnold Schwarzenegger moves the execution to Sept. 29 at 9pm to give defense time to file appeals. Later, the 9th Circuit Court of Appeals reverses Judge Fogel’s order, saying his “compromise” was inappropriate and the expiration of the drug is not a sufficient reason to move forward. Execution in limbo.
September 28: Judge Fogel orders a stay of execution, agreeing with the 9th Circuit that he needs more time to figure out if the procedure actually works; execution off for now, but the Attorney General promises to appeal.
September 29: State and Federal courts agree with Judge Fogel: we need more time. Execution off for good, Dept. of Corrections issues a stand down order.
Albert Brown could have been sentenced to die in prison 28 years ago and the people of California could have forgotten all about him. Instead, we’ve spent months in court and over $4 million to end up right back where we started, with Albert Brown in prison.
James Clark is the Death Penalty Field Organizer for the ACLU of Southern California.