Cap­i­tal pun­ish­ment pol­i­tics

Why rush to ex­e­cute Al­bert Brown? Per­haps be­cause be­ing tough on crime is a vote-get­ter.

Los Angeles Times - - Opinion - Elis­a­beth Semel Elis­a­beth Semel is a clin­i­cal pro­fes­sor of law at UC Berkeley’s School of Law, where she di­rects the Death Penalty Clinic.

Cal­i­for­ni­ans tend to think that cap­i­tal pun­ish­ment in the South — es­pe­cially in Texas, where the over­whelm­ing ma­jor­ity of ex­e­cu­tions take place — is driven by pol­i­tics. But this week’s scram­ble to carry out an ex­e­cu­tion in Cal­i­for­nia for the first time in al­most five years is a re­minder that elec­toral pol­i­tics is also an en­gine driv­ing our state’s cap­i­tal pun­ish­ment sys­tem.

Ex­e­cu­tions have been on hold in Cal­i­for­nia since 2006 be­cause of three le­gal chal­lenges to the man­ner by which the state takes a life. The most well known of the cases is the one in which U.S. District Judge Jeremy Fo­gel is­sued a pre­lim­i­nary rul­ing in De­cem­ber 2006 find­ing that if the Cal­i­for­nia Depart­ment of Corrections and Rehabilitation did not re­vise its ex­e­cu­tion method, he would be com­pelled to declare Cal­i­for­nia’s pro­ce­dures in vi­o­la­tion of the cruel and un­usual pun­ish­ment clause of the U.S. Con­sti­tu­tion.

In the sec­ond chal­lenge, in state court, the corrections depart­ment was suc­cess­fully sued for de­vis­ing its lethal-in­jec­tion pro­to­col in se­cret, which is im­per­mis­si­ble un­der the state’s Ad­min­is­tra­tive Pro­ce­dures Act. A sep­a­rate fed­eral court chal­lenge al­leges that use of a par­a­lytic chem­i­cal — the sec­ond in the three-drug pro­ce­dure — acts as a “chem­i­cal cur­tain” that pre­vents the me­dia and the pub­lic from ob­serv­ing whether the in­mate is ex­pe­ri­enc­ing ex­cru­ci­at­ing pain dur­ing the ex­e­cu­tion.

In each of the three law­suits, Atty. Gen. Jerry Brown’s of­fice, which rep­re­sents the corrections depart­ment, has ar­gued that it is per­mit­ted to adopt its pro­ce­dures be­hind closed doors — that is, to op­er­ate free from ju­di­cial or pub­lic over­sight. Ab­sent these le­gal chal­lenges, how­ever, the pub­lic would not have learned, as Fo­gel found, that the pro­to­col in prac­tice was un­re­li­able and that there may have been prob­lems with as many as seven of the 11 lethal-in­jec­tion ex­e­cu­tions car­ried out un­der the pro­to­col that was in place un­til now.

In July, the state’s ad­min­is­tra­tive agency ap­proved the corrections depart­ment’s new lethal-in­jec­tion pro­ce­dures. In Au­gust, with the ap­proval of the state at­tor­ney gen­eral’s of­fice, the ex­e­cu­tion of Al­bert Green­wood Brown, who was con­victed of murder and rape, was sched­uled for Sept. 29. This ac­tion was taken de­spite the fact that none of the cases chal­leng­ing Cal­i­for­nia’s lethal-in­jec­tion pro­ce­dures has been re­solved.

On Fri­day, Fo­gel de­clined to in­clude Brown in the case be­fore him, but he expressed sur­prise at the state’s in­sis­tence on speed: “The court has al­ways un­der­stood, ap­par­ently in­cor­rectly, that ex­e­cu­tions would not re­sume un­til it had an op­por­tu­nity to re­view the new lethal-in­jec­tion pro­to­col.”

On Mon­day, Gov. Arnold Sch­warzeneg­ger in­ter­vened to post­pone the ex­e­cu­tion un­til Sept. 30.

How­ever, the pol­i­tics of the sit­u­a­tion are sym­bol­ized by the fact that the ex­e­cu­tion was sched­uled at all. Jerry Brown’s of­fice in­sists that the at­tor­ney gen­eral, who is run­ning for gover­nor, had noth­ing to do with the ex­act tim­ing of the Sept. 29 ex­e­cu­tion date. But it strains credulity to ar­gue that any im­pe­tus other than elec­tion sea­son pol­i­tics ac­counts for this rush to ex­e­cute.

We have seen this be­fore. In Cal­i­for­nia cam­paigns, can­di­dates of­ten work hard to es­tab­lish their law-and-or­der bona fides, am­pli­fy­ing the vol­ume on their en­dorse­ment of the death penalty. Dur­ing the 1990 gu­ber­na­to­rial race be­tween Pete Wil­son and Dianne Fe­in­stein, both can­di­dates ran ads tout­ing their sup­port for the death penalty. This strat­egy has also been a hall­mark of Dan Lun­gren’s po­lit­i­cal ca­reer, as at­tor­ney gen­eral and now in Congress.

Can­di­dates who sup­port en­vi­ron­men­tal and con­sumer pro­tec­tion, a woman’s right to choose and pub­lic ed­u­ca­tion fre­quently move to the right on crim­i­nal jus­tice is­sues in or­der to get elected be­cause it is the least po­lit­i­cally risky shift. Brown — a one­time op­po­nent of the death penalty who is fac­ing Meg Whitman, an un­wa­ver­ing cap­i­tal pun­ish­ment ad­vo­cate — is now po­si­tioned to be the man who got ex­e­cu­tions on track af­ter a hia­tus of nearly five years.

Since the last ex­e­cu­tion in Cal­i­for­nia, there has been no pub­lic groundswell to get the death cham­ber back in busi­ness. Cal­i­for­ni­ans have been no less safe than they were be­tween 1992 and 2006, when 13 men were ex­e­cuted. In fact, vi­o­lent crimes — homi­cides in par­tic­u­lar — have steadily de­clined dur­ing this pe­riod.

Both gu­ber­na­to­rial can­di­dates in­sist they can re­turn Cal­i­for­nia to sol­vency. But even as teach­ers are laid off and ser­vices for the poor and dis­abled are cur­tailed, nei­ther Brown nor Whitman has pub­licly raised ques­tions about whether the state should con­tinue to shoul­der the huge costs of cap­i­tal pun­ish­ment.

Ac­cord­ing to the Cal­i­for­nia Com­mis­sion on the Fair Ad­min­is­tra­tion of Jus­tice, the death penalty sys­tem costs the state $137 mil­lion each year and if brought up to the level rec­om­mended by the com­mis­sion, it would re­quire an ad­di­tional $95 mil­lion an­nu­ally to re­pair a sys­tem that Cal­i­for­nia Chief Jus­tice Ron­ald M. Ge­orge called “dys­func­tional.” A new death row, needed to deal with such is­sues as over­crowd­ing, will cost an es­ti­mated $400 mil­lion.

Nei­ther can­di­date has been will­ing to ask whether Cal­i­for­ni­ans want to spend the fi­nan­cial or moral cap­i­tal it will take to ex­e­cute the 700 men and women who have been sen­tenced to death.

In 2008, in his con­cur­ring opin­ion in Baze vs. Rees, which up­held Ken­tucky’s lethal in­jec­tion pro­ce­dures, Supreme Court Jus­tice John Paul Stevens an­nounced his con­clu­sion that cap­i­tal pun­ish­ment vi­o­lates the Con­sti­tu­tion. He called on the nation to be­gin a sober, ra­tio­nal dis­cus­sion about the con­tin­ued im­po­si­tion of the death penalty.

Jerry Brown had the op­por­tu­nity to open this di­a­logue in Cal­i­for­nia by al­low­ing the three le­gal chal­lenges to go for­ward be­fore an ex­e­cu­tion date was set. The gover­nor stepped in to post­pone Al­bert Brown’s ex­e­cu­tion. But the pol­i­tics of the sit­u­a­tion re­main un­changed.

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