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California Execution Moratorium Lifted

It appears that a California execution will go ahead as scheduled next Wednesday, ending a four-year hiatus.  Howard Mintz has this article in the San Jose Mercury-News.

Details are sketchy, but it appears that Judge Fogel recognized the limitation on his ability to block the execution under Baze v. Rees.  However, he assumed the authority to allow Brown to choose a single-drug execution.  I doubt he has the authority to do that, but at least the long-overdue sentence can be carried out in this case.

Update:  The order is
.  News coverage: Bob Egelko in the SF Chron; Carol Williams in the LA Times; Jesse McKinley in the NYT, Howard Mintz in the San Jose Mercury-News.


Fogel gets it entirely wrong when he imputes some of the fault for the compressed schedule on the State. The State, it must be noted, doesn't have the obligation to consider federal court review of its administrative procedures before it implements them. Moreover, the State, under Baze, has every right to presume that its lethal injection procedure passes Constitutional muster. One concept that is missing from Fogel's opinion is "comity". States have every right to implement their administrative procedures without asking "Mother, may I?"

Fogel also gets it wrong when he says that the suffering of the victim's family has no bearing here. They have patiently waited 30 years for this (and when juxtaposed with that, Fogel's whining about a lack of orderly review is weak). As the Supreme Court has noted, "Both the State and the victims of crime have an important interest in the timely enforcement of a sentence." Federal judges need to take that statement to heart.

I would expect Brown to appeal to the Ninth Circuit, always a fertile field for mischief.

This case might be headed the same way a California case from a few years ago (I don't remember the name right now). A particularly annoying and extremist district judge, Marilyn Patel, kept granting stays, and the SCOTUS kept lifting them. After this went on a few times, SCOTUS ordered that Patel was to enter no further stay for any reason, and that only SCOTUS itself would decide if there would be a further stay.

Fogel is more restrained than Patel, but for the moment, he's walking down the same path.

Maybe this is the triumph of hope over experience, but this one feels like it's going to happen. At some point, even liberal federal judges come to the conclusion that it's time. Hopefully, Judge "Unless and Until" in Marin County will simply decide to stand aside. I think she will. The State has jumped through a lot of hoops, and the victim's family has waited forever.

The "no further stay" order was issued in the case of Robert Alton Harris, the first murderer executed in California in the post-Furman era. It was actually Circuit Judge Pregerson who issued the stay that drew the Supreme Court's ire. He issued it after the high court itself had vacated the previous one in Gomez v. U.S. District Court.

I wrote the States' amicus brief in the Ninth Circuit in that case, BTW. For that purpose I was dubbed a Special Deputy Attorney General of the State of Idaho.

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