Executions in California cannot resume "unless and until" the court that issued a permanent injunction on lethal injections in 2007 lifts it, a judge ruled Tuesday.
Marin County Superior Court Judge Verna Adams issued the reminder that the court order remains in force a day after a Riverside County judge set an execution date of Sept. 29 for death row inmate Albert Greenwood Brown, who raped and murdered a 15-year-old girl in 1980.
Adams' ruling was made at a hearing in the cases of two other death row prisoners, Michael Morales of Stockton and Mitchell Sims of Los Angeles. Morales, Sims and Brown are among the few death row prisoners who have exhausted all appeals and are eligible for execution once the practice resumes. There are 706 condemned inmates in California, where the average time from sentencing to execution now runs at least 25 years.
Executions have been on hold in the state for nearly five years, since Morales' defense lawyers challenged the lethal injection procedures in federal court, alleging that they violated the constitutional ban on cruel and unusual punishment.
U.S. District Judge Jeremy Fogel halted Morales' scheduled February 2006 execution after the prisoner's lawyers argued that the three-drug method was flawed and had possibly exposed some of the 13 men executed in California since 1977 to extreme pain.
In hearings Fogel held later that year, witnesses testified that the first injection, a powerful barbiturate, may not have fully anesthetized the prisoner before the second drug induced paralysis and the painful last dose stopped the heart.
A task force named by Gov. Arnold Schwarzenegger rewrote the execution procedures behind closed doors in 2007. But they were deemed illegal by Marin County Superior Court Judge Lynn O'Malley Taylor because they had been adopted without public input. It was Taylor's injunction that Adams ruled was still in force.
The California Department of Corrections and Rehabilitation redrafted the protocols and spent much of the last two years reviewing tens of thousands of public comments on the changes before submitting them to the Office of Administrative Law, which approved them in late July.
Another legal challenge was filed a month ago, alleging that state officials violated procedure in drafting the new protocols. That lawsuit was filed by Sims, convicted of torturing and murdering a Domino's pizza delivery man in Glendale in 1985. It remains unclear how long it will take the courts to consider Sims' challenge.
The corrections department recognizes that an injunction is still in force and is "considering its options," said spokeswoman Terry Thornton.
"If an operative order exists on Sept. 29, 2010, condemned inmate Brown's execution will be carried out," she said.