re Brown's execution date."
Id. This is in no small part because "it is fair to say that there is no case involving an Eighth Amendment challenge to a lethal-injection protocol in which the factual record is as developed as the record here."
Id. at 7. "The regulations have been more than three years in the making. . . ."
Id. at 8.
12. Once again, as with Morales, the court issued a conditional stay order. In its order, the court directed Brown to advise the court by September 25, 2010 (later extended to September 26), "whether he elects to be executed by the injection of all of the drugs specified in Cal. Code Regs. tit. 15 § 3349 et. seq. [the three-drug protocol] or by the injection of sodium thiopental only." Id. at 10.
13. Brown did not make such an election and instead on September 26, 2010, filed with this court a Motion to Stay Execution or, alternatively, a Petition for Mandamus.
14. The district court's decision to provide Brown the choice of a one-drug option is not consistent with California state law and procedures. California law does not provide the condemned a choice between a three-drug protocol or a one-drug option. The only choice provided is between lethal gas or lethal injection. Cal. Penal Code § 3604 (West 2010). Other states also provide the condemned a choice of methods of execution. See, e.g., Va. Code Ann. § 53.1-234 (West 2010) (choice between electrocution or lethal injection); Wash. Rev. Code § 10.95.180 (West 2010) (choice between intravenous injection or hanging). The one-drug option was not adopted by the State in response to the conditional order regarding Morales nor in the new procedures revised in response to the Morales litigation. Thus, the State has not, in its protocol, devised or implemented procedures for the single-drug injection. There is a dispute whether the State has sufficient supply to implement such an option. In addition, the State advises that its current supply of sodium thiopental has an expiration date of October 1, 2010. Further, the State has understandably not adopted procedures or implemented training on the one-drug option and claims it would need at least three days to do so. Despite the best of intentions on the part of the district court to fashion a compromise and a choice of methods here, imposing on Brown such a choice between the new three-drug protocol and a one-drug option never adopted by the State places an undue burden on Brown and is beyond the power and expertise of the district court at this juncture. The result in this case should not be driven by compromise nor by the State's deadlines superimposed on the district court's already pending review of the new execution protocol.
15. The district court stated in the September 21, 2010 hearing that "Mr. Brown is asserting Eighth Amendment claims which this court has been unable to finish litigating." Compare Baze, 553 U.S. at 41 ("The trial court held extensive hearings and entered detailed Findings of Facts and Conclusions of Law."). Of particular importance, "Brown's federal claims are virtually identical to those asserted by" Morales. Sept. 24 Order at 1.
For these reasons and in light of this background and the district court's findings regarding the risk of unconstitutional pain inhering in the prior three-drug protocol, this matter is remanded to the district court to determine whether, underBaze, Brown is entitled to a stay of his execution as it would be conducted under the three-drug protocol now in effect. Specifically, the court should address the similarity between the previous O.P. 770 and Cal. Code Regs. tit. 15 § 3449 et seq., as well as the court's statement that, with respect to the constitutionality of the State's previous execution protocol, "it likely would have made the same findings and reached the same conclusions under the `demonstrated risk' standard" adopted by the three Justices in Baze. The district court should also consider the standards for a stay as articulated in Nelson v. Campbell, 541 U.S. 637, 649-50 (2004).
REMANDED.