ACLU sues over attempt to reinstate death penalty

SAN FRANCISCO » The ACLU of Northern California is suing San Mateo County District Attorney Stephen Wagstaffe and two Southern California prosecutors, saying their efforts to reinstate the death penalty at least for inmates from their counties is unlawful.

The top prosecutors of San Mateo, San Bernardino and Riverside counties have asked California’s First District Court of Appeal to let lethal injections to resume, even though Gov. Gavin Newsom issued a morato

rium against executions in March 2019.

They contend their counties have separate interests than the state and shouldn’t be bound by a conditional settlement California reached last July in a federal lawsuit brought against it by death row inmates in 2006.

In its lawsuit, the ACLU says the appellate court should prohibit Wagstaffe, San Bernardino County DA Jason Anderson and Riverside County DA Michael Hestrin from “interfering in federal death penalty litigation” that is “beyond the scope of legal mandate.”

“What the district attorneys of San Bernardino, Riverside and San Mateo are doing is a brazen overreach,” Emi MacLean, a senior attorney with the ACLU of Northern California, said. “These DAs are rogue actors who seek to ignore the constitution and create their own rules. Their lawlessness cannot stand.”

In its lawsuit filed on Friday, the ACLU argues that state law says when a private party files a federal lawsuit against the state, as the death row inmates did in 2006 to stop lethal injections, the state attorney general is responsible for defending the state’s interest.

MacLean said that although different parties may file briefs to share their thoughts with the court, district attorneys do not have the authority to engage in such a suit without “clear and express statutory authority.”

The suit comes just two years after Gov. Gavin Newsom ordered a halt of all executions in the state and the dismantlement of the state’s execution chamber, vowing he would “not oversee the execution of any individual.”

As part of the deal, the governor shut down San Quentin State Prison’s death row with the promise that current inmates involved in a lawsuit against the state would dismiss the long-running constitutional challenge to the state’s execution process. The agreement said the case against the state would resume if legal action was taken to continue executions in California.

Wagstaffe admitted in an interview he and his two colleagues face an “uphill battle” in the court’s first circuit court. He also acknowledged that the governor has “every right” to pause executions, but their goal is to keep the execution process moving through the court system.

“If the (governor’s) successor adheres to (Newsom’s) view then we’ll continue to follow that,” he said. “If he doesn’t and says ‘no, I will enforce the law the voters passed,’ then we don’t want this to be lost time.”

In 2016, Californians approved a ballot measure to expedite executions and defeated another measure to get rid of the death penalty altogether.

Wagstaffe said he will continue to prosecute death penalty cases to the execution stage as he is allowed to do. He said he doesn’t “make the law, I simply enforce it as the electorate put it out.”

“The ACLU is wrong here and we’re representing the victims’ families,” he said. “We’ve only had one death penalty verdict in 27 years last I checked and it is on appeal and I wanted to be able to continue moving it forward because the Attorney General is continuing it pending the federal case. As to execution, that’s not to occur as to the governor’s order.”

The suit argues that the California Supreme Court’s decision in Safer v. Superior Court limits the power of district attorneys to engage in civil litigation.

“I can’t just engage in civil cases whenever they want to,” MacLean said. “There has to be clear authority to do so with the legislature. Without that authority, they are expressly prohibited from doing so.”

MacLean argues that the DAs are violating the state constitution by overstepping their authority and wondered why, at this stage, they’re using taxpayer money to challenge of the state’s execution process.

“Right now there’s a big question about the role of district attorneys in the mass incarceration we see around us and about how our justice system should operate,” MacLean said. “There are a growing number of prosecutors across the state and the country who are identifying that they are part of the problem in seeking the harshest possible punishment. We’re seeking prosecutorial accountability and appropriate limits to prosecutorial authority.”

For Wagstaffe, the court is there to rule on different points of view, and he said he hopes the appellate court agrees with that take.

“This is an uphill battle, we always thought that,” he said. “But when we think of something as important as this we feel it’s worth the effort.”