Debra J. Saunders

On Oct. 28, 1980, Albert Greenwood Brown snatched Susan Jordan, 15, raped and strangled her to death with her own shoelace. Brown, who was on parole after raping a 14-year-old girl, then spent the night tormenting the dead girl's parents over the phone, telling them that they would never see their daughter again and where to find the girl's half-nude corpse and belongings. A jury sentenced him to death for that crime.

Last Wednesday, almost 30 years later, Brown was scheduled to be executed.

Of course, it didn't happen. Various judges intervened, the state's meager supply of lethal-injection drugs was about to expire -- and so California's death penalty is on hold until 2011.

There hasn't been an execution in California since January 2006. In February of that year, federal Judge Jeremy Fogel essentially ordered a de facto moratorium on California's three-drug lethal-injection protocol because there was "undue risk" -- not that he knew if it had ever happened -- that a condemned murderer could "suffer excessive pain when he is executed."

In April 2008, the U.S. Supreme Court ruled 7-2 that Kentucky's three-drug lethal-injection protocol is constitutional. Yet Fogel's injunction continued to prevent executions as California officials scrambled to reconfigure the lethal-injection protocol under a superior court judge's order.

No matter which course the state chooses, taxpayer-funded appellate attorneys have managed to block justice -- and on the taxpayer's dime.

Last month, Fogel issued a ruling to allow California's new lethal-injection protocol to proceed. Brown's attorneys argued that under the three-drug protocol, Brown might suffer pain after the initial injection of sodium pentothal. Ohio dealt with that argument by moving to a one-drug injection of that drug. Death penalty opponents complained that Ohio wanted to do drug testing on humans.

Likewise, Brown's attorneys protested that the new protocol was "untested." (Be it noted, there is only one way to test it.)

Fogel gave Brown the option of a single-drug option. His lawyers protested that Brown has given a too "short time frame" to decide. And they prevailed.

On Thursday, I talked to state Supreme Court Chief Justice Ron George. His court also issued a ruling that stayed Brown's execution, this one on a narrow timing issue.

George told me, "I'd say, when the authorities end up procuring the second dose of lethal drug, I don't see why we shouldn't have executions resume."

Why is it, I asked, that Ohio has managed to execute 32 people since 1999, but California has only used capital punishment 13 times since 1977? (My answer would be: the Ninth Circuit Court of Appeals.)

Debra J. Saunders

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