Washington State Supreme Court: Execution of Brown can proceed State has changed to one-drug system as method of execution

By Rachel La Corte Associated Press Writer OLYMPIA, Wash. (AP) § The execution of death row inmate Cal Coburn Brown can proceed after the state Supreme Court rejected claims last week that Washington's lethal injection procedures were unconstitutional. The lawsuit originally challenged the state's prior method of lethal injection, which used a three-drug cocktail. The court said the legal challenge was now moot because the state has switched to a one-drug system. The high court also rejected claims that the state Department of Corrections lacks authority to establish execution policies under current law. "The Legislature properly delegated authority to the department to develop and implement the death penalty protocol," the court, led by Justice Debra Stephens, wrote. The case is a combined lawsuit on behalf of three death row inmates: Darold Stenson, who shot his wife and business partner in Clallam County; Brown, who tortured and killed a Burien woman; and Jonathan Gentry, who killed a 12-year-old girl in Kitsap County. Brown was the only one immediately affected by Thursday's ruling because the other two inmates still have separate, ongoing court challenges. Last year, the state Supreme Court issued Brown's stay just hours before he was set to die for the 1991 killing. The state said that the execution will proceed on Sept. 10, barring any further legal challenges that result in another stay of execution. The lawsuit originally challenged the constitutionality of the state's prior method of lethal injection. The constitutionality of that system was upheld by a Thurston County Superior Court and later appealed. Earlier this year, the state revealed that it was changing its method of execution to a one-drug system, which the state argued made the lawsuit moot. The new protocol that took effect in March makes Washington the second state in the nation, after Ohio, to use the method. Seattle attorney Sherilyn Peterson, who represents Stenson but argued the consolidated appeal for all the inmates, said the plaintiffs were still considering options but could ask the U.S. Supreme Court to review the case or file a new lawsuit challenging the one-drug protocol. The change to that protocol met plaintiffs' constitutional concerns about the drug and choice of method but did not satisfy concerns about whether the state can assemble a qualified execution team. Members of the previous team resigned last year, worried their identities could be exposed through the court's examination of their qualifications and experience. A substitute team has not yet been assembled, but Attorney General Rob McKenna said that would happen in the coming weeks as the state prepares for the execution of Brown. "I think that the fact that they have blatantly withheld the qualification and competence of the team from judicial scrutiny is a big, big problem," Peterson said. She also said a federal review could be done to determine if lethal injection in the state violates federal laws because a doctor doesn't obtain or administer the drugs. While the court declined to issue a judgment on that claim Thursday, Stephens did write that federal and state laws "make no mention of a government's need to secure a prescription in order to carry out its execution duties." "It is a dubious proposition to conclude that either our Legislature or Congress intended that the policy codified in state and federal controlled substances acts § preventing drug abuse § applies to execution procedures," she wrote. Before deciding to switch to the one-drug method, Washington, like roughly three dozen states, had performed lethal injections by administering chemicals intended to render a condemned prisoner unconscious, then paralyze the body and stop the heart. Only sodium thiopental, followed by a saline flush, is used in the one-drug policy. The high court cited some evidence showing there could be pain with the use of a single drug from swelling or burning around the spot where an IV is inserted. However, there was no evidence that alone "presented a constitutionally impermissible risk of pain," the court said. Under the new state policy, the three-drug injection method will still be allowed for inmates who request it. Washington death-row inmates may opt for hanging instead of lethal injection. The last hanging was of Charles Campbell in May 1994. The state's last execution was the lethal injection death of James Elledge in 2001. The case is Brown, Gentry and Stenson v. Eldon Vail. Docket No. 83474-1. Published: Mon, Aug 2, 2010

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