Will Executions in California Resume?

Apparently, a new effort to revive executions in California is under way. The Los Angeles Times reports:

The settlement of a lawsuit brought by crime victims’ families requires Gov. Jerry Brown’s administration to unveil a new method of lethal injection this year. That method, which Brown officials said would be a single-drug lethal injection, will be subject to public comment and court challenges.

If the plan survives the scrutiny and litigation, it still could be stymied by difficulty in obtaining drugs needed for executions. Manufacturers, pressed by death penalty opponents, are refusing to sell drugs for executions. Compounding pharmacies, another possible source of the drugs, also could have trouble procuring the necessary chemicals to make them.

Still, the settlement remains the first breakthrough in a years-long hiatus in executions in California. It is likely to reignite the debate over capital punishment in the state and test the resolve of the Brown administration. Brown personally opposes capital punishment but defended the death penalty when he was attorney general.

The text of the settlement can be found in full here.

A few comments spring to mind. First, having read Austin Sarat’s Gruesome Spectacles, and knowing that most death penalty litigation for the last few years focuses on the potential for botched executions, I can’t imagine that a new chemical will not usher a new era of litigation. I doubt executions will pick up as a result, but that is, of course, a possibility. This might be why, at least as of last year, three-drug executions persisted.

Second, in the face of all this tinkering with the machinery of death, it’s astounding to see the Brown administration cling to the death penalty, rather than be hard at work to abolish it. Any new iteration of the death penalty brings in its wings nothing but problems, litigation, concerns, and costs. Let go of the death penalty and you let go of the problem.

And third, the legal settlement is in a lawsuit brought by victims’ families. But not all victims are the same, and many victims’ families oppose the death penalty. I don’t want to discount the feelings of vindication and closure that an execution may bring to the family members of a loved one. But it is unfair, and untrue, to assume that pushing for the death penalty is a monolithic pro-victim move.

Death Penalty Debate in an Abolitionist State

With Dzhokhar Tsarnaev convicted of all 30 counts (among them four dead and 260 wounded victims), the federal trial of the Boston Marathon bomber has now entered the sentencing phase. This phase is estimated to take four weeks. It has been fascinating to follow the debate about the death penalty, which, while legal because of the federal setting, is taking place in Massachusetts, an abolitionist state.

After Gregg v. Georgia enabled states to recreate their death penalty statutes, Massachusetts reinstated the death penalty for first-degree murders. However, in Comm. v. Colon-Cruz, this statute was ruled unconstitutional, because it discriminated between defendants who pled guilty and defendants who went trial (this, by the way, is interesting; after all, the prosecution regularly offers to take the death penalty of the table in retentionist states for a guilty plea). A few governors, including Mitt Romney, tried to reinstate the death penalty with no success; in a 2004 report to then-governor Romney, a commission recommended that “any death penalty statute that may be considered in Massachusetts would be as narrow, and as foolproof, as possible.”

As is often the case in abolitionist states (and countries) public opinion lagged behind the legal change. Death Penalty Info cites a Boston Globe story from April 2003, according to which a poll conducted at the time found that 53% respondents supported capital punishment against 41% opposed to the practice. This was a significant decline from a 1996 poll, which found 65% in favor of the death penalty and only 26% opposed. But a recent poll, asking, “If convicted, should Tsarnaev get life in prison or the death penalty?” produced 57% supporting life without parole and only 33% supporting the death penalty. 

Interestingly, the editorials calling to spare Tsarnaev all raise an important argument that is typically absent from California capital cases: the need to relegate Tsarnaev to the shadows, rather than make him a martyr whose case will make the news every time an execution date is set. Ironically, it is in this “obvious case” that, specifically because of the hate motive, there is hesitation in creating the media and litigation hoopla that would accompany a capital sentence. Yesterday, the New York Times reported that the parents of Tsarnaev’s youngest victim, 8-year-old Martin Richard, have asked the prosecution not to ask for the death penalty for a similar reason:

“As long as the defendant is in the spotlight, we have no choice but to live a story told on his terms, not ours,” they wrote. “The minute the defendant fades from our newspapers and TV screens is the minute we begin the process of rebuilding our lives and our family.”

This argument is particularly interesting for us in retentionist California. In a place like Massachusetts, in which the death penalty is unusual and only on the table because of the federal setting, an argument about the risk of martyrdom makes a lot of sense. Where death sentences are commonplace, however, it’s less likely to succeed. Ironically, while this argument can help mass murderers with hate motives, it has less potential for single-victim murderers and less publicized cases. Moreover, it does not characterize the debate in retentionist states.

In 1971, a California jury sentenced Charles Manson, Patricia Krenwinkel, Leslie van Houten and Susan Atkins to death for the murders of seven victims. Because of the death penalty (temporary) abolition in 1972, their sentences were commuted to life, which meant, in those days, that they all came before the parole board as soon as 1978. Susan Atkins died in 2009. Patricia Krenwinkel, the subject of a new short documentary, is the longest-serving female inmate in California. Prosecutor Vincent Bugliosi’s memoir of the trial written with Curt Gentry, Helter Skelter, makes no mention of any martyrdom considerations or, really, any reservation he had in asking for the death penalty.

This comparison, among others, makes me think that death penalty abolition does not only change support and opposition rates: it also changes the nature of the debate. We tend to forget that, because we don’t usually hold capital punishment polls in abolitionist states. By contrast, the debate in retentionist states has reached an impasse that makes it extremely shallow. Either we focus on “tinkering to the machinery of death” or we try to abolish it for cost reasons. Places that are not confronted with the daily realities of an in-state death row allow their residents not only freedom from the moral discomforts that come with its application, but also the freedom to infuse their opinions on the subject with philosophical considerations. Abolition, therefore, makes us morally richer not only directly, but also in intangible ways.

Does It Matter Whether People Support the Death Penalty?

Yesterday’s Asahi Shimbun reported a drop in support for the death penalty in Japan:

In a sign of wavering support for capital punishment, the first decline in the percentage of Japanese who support the death penalty has been noted, although the support rate remains about 80 percent, according to a Cabinet Office survey released Jan. 24.

The decline in support is the first since the survey, which is conducted every five years, began in 1994, it added.

The high percentage in the survey apparently shows the public’s continuing sympathy for victims of violent crime.

Now, 80 percent is still a lot, and we should keep in mind that death penalty law varies fairly dramatically across Asian countries. But here’s something interesting: there is considerable support for the death penalty even in countries that abolished it long ago, like the UK. Here’s an assortment of studies on public opinion in various abolitionist and retentionist countries.

It’s important to point out that, in most abolitionist countries, a majority of citizens was in favor of the death penalty at the time of abolition. I have three thoughts about this:

(1) Abolishing the death penalty is a top-down move, not one that typically calls for broad populistic support. For more on this, read Pieter Spierenburg’s The Spectacle of Suffering.
(2) Using the financial crisis to abolish the death penalty nationwide in the United States is possible and worth doing, regardless of popular support. Once it goes away, it won’t come back.
(3) Over time, the arc of justice bends toward abolition. Whether or not a country has abolished it, and whether or not its citizens are in the throes of inertia, support wanes. That’s a good thing.

———–
Props to Jonathan Marshall for the link.

Death Penalty Representation: Between a Rock and a Hard Place

Today’s ScotusBlog reports on a series of orders denying certiorary to the Supreme Court. The very last one on the list is Redd v. Chappell. The case raises a question that may, at first blush, seem technical: should capital punishment appellants be represented on appeal? Can the appellate courts deny hearing appeals from pro se (unrepresented) appellants?

A little bit of background: As Gerald Uelmen explains in this excellent and informative piece, while California presumably offers representation for capital punishment post-conviction proceedings (See Cal. Govt. Code Ann. §68662), the realities of this arrangement are pretty messy. In 1976, the California legislature created the State Public Defender‘s Office to handle all indigent criminal appeals. In the early 1990s, the governor asked the office to restrict itself to capital cases. Subsequent changes in budget and personnel contributed to the growing backlog of death penalty appointments, as did the special requirements to be counsel in cases of capital punishment: the unique expertise and level of experience required are hard to meet, which means the pool of qualified attorneys is limited. In 2009, when Uelmen wrote his piece, there was a delay of three to five years before a death row inmate had counsel appointed to handle his or her direct appeal. The wait for habeas counsel appointment was eight to ten years after imposition of sentence, and while continuity would be a good thing, it is very rare that attorneys accept representation for both the appellate and habeas process. The latter problem was only partially solved in 1998 with the creation of the Habeas Corpus Resource Center (HCRC), which represents approximately 70 clients in state habeas proceedings. And we haven’t even started talking about federal habeas.

Which brings us back to Redd v. Chappell. Redd was sentenced to death 17 years ago, and his conviction was affirmed on direct appeal more than four years ago. Now, he wanted to pursue habeas remedies, but up until now has not been appointed counsel. But ironically, the California Supreme Court refuses to consider capital inmates’ pro se submissions relating to matters for which they have a continuing right to representation–even if they don’t actually have representation! Presumably, despite having a right to counsel–which is NOT being honored by the state–in order to be taken seriously, and given the grim realities of the state’s failure to meet its obligation, Redd has to waive his right!

The result from the Supreme Court was very unsatisfying, but Justice Sotomayor at least added some explanation as to why she joined the denial of cert: she writes that–

it is not clear that petitioner has been denied all access to the courts. In fact, a number of alternative avenues may remain open to him. He may, for example, seek appointment of counsel for his federal habeas proceedings. See 18 U. S. C. §3599(a)(2). And he may argue that he should not be required to exhaust any claims that he might otherwise bring in state habeas proceedings, as “circumstances exist that render [the state corrective] process ineffective to protect” his rights. 28 U. S. C. §2254(b)(1)(B)(ii). Moreover, petitioner might seek to bring a 42 U. S. C. §1983 suit contending that the State’s failure to provide him with the counsel to which he is entitled violates the Due Process Clause. Our denial of certiorari reflects in no way on the merits of these possible arguments. 

My question is, of course, how is Redd supposed to know about all these options if he doesn’t have counsel to inform him that they exist?

As a coda to this: Some of you may remember that, two weeks before the vote on Prop 34, the Chronicle ran a story about how death penalty inmates themselves opposed the proposition, because it would deny them the free counsel they get. And several opponents of the proposition got behind that; arguably, that was the political capital that helped defeat the proposition. But the truth is that death penalty inmates don’t really get specialized counsel, and many of their petitions lag behind and go unheard for years for that very reason. If the death penalty were to be abolished tomorrow, and all these folks were to do life without parole with the general population, they could be represented by basically any attorney, which would increase the availability and quality of representation, and we would all save money and time.

———-
Many thanks to Simon Grivet for drawing my attention to this case.

BREAKING NEWS: Appeal in Jones v. Chappell

I have disappointing news to share: the Attorney General has decided to appeal in Jones v. Chappell.

I am not surprised, but I am very disappointed, just as all of you must be. Whoever has taken part in reaching this decision is not supporting the law or defendants’ rights; they are supporting wasteful, unconscionable expenditures of $130 million annually on a lengthy incarceration in a dilapidated facility, complete with decades of state-funded post-conviction litigation. This is a very sad day for any reasonable, conscious Californian.

The next frontier will be in the Ninth Circuit, where odds that we will prevail are not very good, but not non-existent. Please follow up on our coverage of this issue,and do not be discouraged: we will fight on, in litigation and through legislative and political means, and we will see nationwide abolition in our time.

More Death Penalty News: Robert Justice Comes to the Rescue

On Monday morning, I drove to Sacramento and submitted this petition, calling on Gov. Brown and Attorney General Harris not to appeal the decision in Jones v. Chappell, in which Judge Carney of the U.S. District Court found the death penalty in California unconstitutional. It started as a small plea on Facebook, and without any pushing or prompting from me found its way to the Daily Kos and to the Daily Journal (twice). By the time I submitted the petition, it was 2,198 signatures strong. That’s me on the left with the gubernatorial bear.

There are still 12 days left for the Attorney General to appeal the decision, and as I explained here, if her office does not do so, it doesn’t mean the death penalty in California is effectively abolished, but it would be a great start of a series of legal and political moves that could spell its demise. I’m beginning to think that the death penalty can’t be executed; rather, it has to die a slow death from a chronic disease (delays, costs, malfunctions)–much like the vast majority of the inmates on death row.

I think everyone understands this, even if they don’t like it, and that includes death penalty proponents, who seem to be freaking out about the prospect of $130 million annually in savings and folks being put in general population serving life without parole (which they do anyway, just without the expenditure.) And it seems that death row supporters in California are beginning to freak out at the not-unlikely possibility that the Attorney General is going to leave this decision alone. First was this post on Crime and Consequences, inviting district attorneys to risk their jobs and eat up their lives by appealing a decision their boss might not appeal against her officer’s discretion (really?). But then, the decision was actually appealed. Yesterday. Not by the Attorney General. By a guy named Robert Justice.

Don’t believe it? Here’s the notice of appeal.

I bet you’re wondering who these mysterious appellants are, and what gives them standing, given that they are not Jones OR Chappell OR the Attorney General. Well, the signatures on the petition give away their interest in seeing the death penalty continue its slow limp into the sunset. Mr. Soos and Mr. Justice are “citizens of the State of California”.

First thing’s first: this is obviously not going to work. Unless Mssrs. Soos and Justice have some truly acrobatic standing argument up their sleeve, the issue of standing in a case like this has already been decided by the Supreme Court. If the Attorney General does not support our 1978 voter initiative to reinstate the death penalty, citizens have no standing to do so in her stead, not even if they’re the ones who fundraised and pushed the initiative in the first place. This is going to be thrown out of court for lack of standing faster than I can say “Hollingsworth v. Perry.”

I will give Dr. Justice credit for his enthusiasm regarding the political and legal process. It’s good to see citizens of California spend energy and resources on vital matters of public importance, such as his previous legal endeavor, which involved trying to get the State of Hawaii to reveal President Obama’s birth certificate (yes, it’s the same guy. He’s a birther).

The Hawaii court said, “while Dr. Justice may have a strong desire to personally verify President Obama’s eligibility, pursuant to article II, section 1 of the United States Constitution, to serve as President of the United States, such desire does not constitute compelling circumstances within the meaning of HRS ÿÿ 92F-12(b)(3). Dr. Justice does not have the power or authority to determine President Obama’s eligibility. Only the Congress of the United States has the power to remove a sitting president. Indeed, Dr. Justice has not alleged any factual basis for his implicit contention that President Obama may not be a natural-born citizen of the United States. Dr. Justice has not stated an overpowering or urgent need for the records to protect the life or safety of an individual in a medical or other emergency.” I expect Dr. Justice’s newest foray into the exciting world of legal standing will meet with similar success.

But let’s get serious for a bit. I want to give Robert Justice the credit that he doesn’t seriously think he has standing, and that this might be his attempt to persuade, or shame, our elected officials into doing his bidding. Anticipating some arguments from death penalty supporters, here goes:

The Attorney General has to do what the people want.

No. No, she doesn’t. Not when the people’s will goes against what’s fair and just and makes sense. Remember Jack Conway, Attorney General of Kentucky? This is him, courageously saying that he is going to do the right thing and refrain from appealing a decision that same-sex marriage bans are unconstitutional “even if some disagree.”


The people want the death penalty to remain.

What we know from the last election is that the percentage of people who want the law to remain is the lowest it’s been in decades: 53 percent. And it will continue to go down, in the same way that support for same-sex marriage went up. The population is getting younger. And, as a French student reminded me this week, France abolished the death penalty before most of the public agreed with abolition.

The Attorney General should uphold the law.

Well, of course she does. But what counts as “law” is a changing, evolving thing. The death penalty was constitutional until 1972. That was “the law”. Then it stopped being “the law”, and became “the law” again in 1976. When Jack Conway declined to defend a bigoted, homophobic law, he expressed his opinion–that the court’s decision was law now. Similarly, a decline to appeal Judge Carney’s decision makes it “law”, and opens the door to more changes and processes that may make abolition “law” in the entire state of California.

The Attorney General owes it to us to see this through, so we can have a Ninth Circuit decision up or down. 

That’s an interesting one, and I’ve heard it from several people I respect. But I think we all understand that litigation involves strategy. Appeals are discretionary for a reason, and it is a legitimate opportunity to employ strategy and shape the law of the future–whether by appealing or by refraining from appealing.

This is the end of the death penalty. Isn’t it healthier if it comes about by means of extensive public debate?

First of all, this is not the end of the death penalty, for reasons I explain in detail here. There is still plenty to be done and plenty of room for extensive public debate to take place. But public debate about this has been going on for centuries, and many arguments have been made on the pro and con sides for the last forty years in particular. We’ve discussed deterrence, racial discrimination, innocence, botched executions, ad nauseam. In some ways, it’s befitting that the death penalty perish in the same way that most of its subjects perish–namely, slowly, quietly, of natural causes, exhaustion and dysfunction.

________
Props to the anonymous kind soul who provided some of the sources for this post.

Jones v. Chappell and the Road to Abolition

Today’s Daily Journal story about our petition. Please click to enlarge.

On July 16, US District Court Judge Cormac Carney issued a decision in Jones v. Chappell (2014), vacating Ernest Dewayne Jones’ death sentence. But this was far from a decision in a particular case: Judge Carney declared the death penalty in California unconstitutional, citing the lengthy delays in its administration.

As the decision notes, since the reinstatement of the death penalty in California in 1978, only 13 people have been executed. Meanwhile, 95 inmates have died of natural causes or suicide, 39 were granted relief from their sentence, and the remaining 748 are languishing on Death Row, some of them for decades. More than 40% of the condemned population has been on death row for more than 19 years, and nearly all of them are still engaged in expensive, lengthy litigation—direct and collateral review proceedings—funded by the state. The arbitrariness in the administration of executions, according to Judge Carney, echoes the historical concerns in Furman v. Georgia (1972), and undermines any deterrence arguments, to the extent that these are still credible.
But while Judge Carney believes that these delays have made the promise of capital punishment an empty one to California citizens, to jurors, to victims and their loved ones, he does not believe that these defects can be remedied simply by streamlining the death penalty and executing inmates faster. He convincingly argues that much of the delay in litigation is the state’s fault, but points out that all efforts to reform post-conviction remedies have failed, and that cutting them would increase the grave risk of mistakes and wrongful executions. While the order pertains only to Mr. Jones, generalizing Judge Carney’s conclusions to all those affected by a system that “serves no penological service” is unavoidable.
The unavoidable question is, what next? The ball is currently in Governor Brown and Attorney General Harris’ court. They must decide whether the state will appeal the decision to the Ninth Circuit. A day after Judge Carney’s decision, I started a petition on Change.Org, asking Attorney General Harris not to appeal the decision, which, as I write these words, bears 2,078 signatures. The Governor and the Attorney General are not known to be fans of capital punishment, and I believe that a refusal on their part to stand behind the death penalty can communicate an important symbolic message that has the potential to place us on the much-awaited path to abolition. It would signal that our state government is fiscally responsible, and unwilling to continue wasting $100 million annually (according to the Legislative Analyst’s Office calculations) on the incarceration of a few people in a dilapidated facility, paying for expensive conditions and litigation, with or without an execution at the end. It would signal an acknowledgment that consistency and fairness are important tenets of our penal policy. It would signal that the botched execution of Joseph Rudolph Wood in Arizona—and the botched executions of many others, estimated as 3% of executions every year—indicate that there is no way to divorce the infliction of death from the infliction of suffering, even behind a sanitized, medicalized window-dressing. It would signal that, like Justice Blackmun in 1980s, we have tired from “tinkering with the machinery of death” and have finally acknowledged its profound dysfunction. And it would signal that these new considerations join the old abolitionist arguments, based on ethics, racial equality, and innocence concerns—in ushering in an era of abolition.
But beyond the symbolic message, there are the practical consequences associated with the State’s decision whether to appeal. Should the Attorney General appeal the decision, the Ninth Circuit might affirm it, in which case it will apply to the entire State of California, rendering the death penalty effectively abolished. However, the current Supreme Court makeup does not seem promising to the abolitionist cause, and an appeal of the Ninth Circuit decision will, in all likelihood, reverse Judge Carney’s decision. A possible appeal of such a decision to the Supreme Court will, likely, reverse the decision. The best scenario, therefore, for abolition would be a final, affirming decision on the Circuit level, without a subsequent appeal—but that scenario depends on a favorable Ninth Circuit panel and the Attorney General’s restraint in appealing that decision.
If, on the other hand, the Attorney General decides not to appeal the decision, we will find ourselves in an interesting situation. As many California residents recall, the Governor and Attorney General did not appeal Judge Vaughn Walker’s District Court decision, according to which Proposition 8, which amended the California constitution to forbid same-sex marriage, was unconstitutional. Supporters of the initiative, who appealed the decision in their stead, were found by the Supreme Court to lack standing, and Judge Walker was left as the final decision on Proposition 8’s constitutionality. Lest our short memory confound us, California’s death penalty is also the product of a voter initiative: Proposition 7, the Death Penalty Act, of 1978. Moreover, some of the original supporters of Proposition 7 have now joined the abolitionist cause, so even if they had standing, they would probably lack the motivation to fight the decision.
There is, however, an important legal difference: Judge Walker’s order was an injuctive relief against the state. Judge Carney’s decision merely vacates Mr. Jones’ death sentence. In the absence of an appeal to the Ninth Circuit, further legal and political steps would be required to move from a particular case to a de-facto abolition of the death penalty in California. 
The easiest situation would be that of inmates under sentence of death who have a pending federal habeas claim in the Central District, who could argue their case should be heard by Judge Carney, as a “related case”. The decision would be up to Judge Carney’s discretion, though it seems clear from the tenor of his decision that he meant for it to have an impact beyond Jones’ case alone. Also, the decision raises the question whether other Central District judges can ignore it in similar cases if Judge Carney does not, for some reason, find that they are “related”.
Inmates outside the jurisdiction of the Central District would face more of an uphill battle. Judge Carney’s decision, while of persuasive value, is not binding in other district, nor could they benefit from an “issue preclusion” claim, as they were not original parties to the action. This is where the good will of the Attorney General’s office and the other District Courts would come into play; surely we wouldn’t want to see the death penalty effectively ended in one California district and have other inmates on death row. Another possible scenario would be that, in order to correct the grave injustice of having some inmates benefit from a general decision while others don’t, the Governor could commute the sentences of all death row inmates to life without parole, and with the support of the California Attorney General, we could enter another period of moratorium.
The possible legal outcomes of Jones, therefore, run the gamut from one inmate’s victory to a de-facto moratorium in California. The eventual impact of the decision depends on the sound discretion and good will of many actors in the legal and political arena in the state. Last, but not least, of these actors is the public. In 1978, 71% of California voters supported the death penalty amendments. After many years of delays, mistakes, discrimination, litigation over chemicals, and expenses, support for the death penalty plummeted to 53% in 2012. Whether the courts and administration will bravely turn the tables before the public tide is completely reversed remains to be seen, but a comparative perspective shows that the road toward abolition—toward progress—is a one-way street. Let’s get this done.

Death Penalty Update

In the last few days, we’ve made a huge effort to circulate a petition to Governor Brown and Attorney General Harris, asking them not to appeal District Court Judge Carney’s decision that the death penalty in California is unconstitutional. We’ve just hit 500 signatures, and I’ve sent the petition to the Governor and the AG. Thank you for your support, signing, and sharing!

What happens next?

Our elected officials decide whether they want to pursue an appeal to the Ninth Circuit.

What if California appeals the decision?

Then, we’ll have to take our chances with the Ninth Circuit. The hope is that we’ll draw a favorable panel, who will affirm Judge Carney’s decision. It’s possible, albeit not very probable. Regardless of the result, a further appeal to the Supreme Court is unlikely to yield a good result for abolitionists.

The best of all worlds would be a decision from the Ninth Circuit affirming the death penalty’s unconstitutionality, and THEN a commitment from the Attorney General that she would not appeal the decision. If that is the case, the decision will apply to all of CA, and would basically mean that the death penalty has been abolished. But for that to happen we have to be lucky twice: the Ninth Circuit has to go our way and the AG has to decide not to appeal that decision. That’s quite a gamble.

What if our elected officials hear our plea and do not appeal the decision?

In that case, we’re left with a great, favorable decision, but by a District Court, which means it doesn’t create immediate effect in all of California. But we also gain an important political advantage: we have a great decision, that became final, AND the political gravitas of the AG’s support for the result. That, then, allows us to consider political pressure on the Governor’s office to commute current capital sentences, which do not conform to constitutional standards, as well as a valuable weapon against various proposals to “fix” the death penalty.

What are the odds that there will be an appeal?

Hard to tell. As you may recall, last time the State did not defend its laws in federal court was in the context of Prop 8, and the initiators of the proposition were ruled by the Supreme Court not to have standing. What this means is that if the AG does not want to defend CA’s death penalty, no one else can do so in her stead.

There is, however, a difference: Prop 8 was a voter initiative, and so the AG could more easily disengage from it by not appealing. Even though the AG is, personally, an opponent of the death penalty, she may think that solid administrative principles require seeing this thing to its end. And maybe she, too, is hoping that if she appeals the decision, the Ninth Circuit will rise to the occasion and decide the case for abolition.

In other words, your guess is as good as mine.

What can we do now?

Keep talking about this with friends of all political persuasions. Talk about the botched execution in Arizona; talk about the immense toll that incarcerating these folks and tending to their litigation effort is taking on the CA budget (to the tune of $150 million annually.) Talk about how we can see abolition in our lifetime, if we run with this ruling and make the most of this opportunity to drag our penal system to the 21st century.

There Is No Right Way to Kill People

Yesterday, the web was ablaze with gruesome news. The execution of Joseph Rudolph Wood took much longer than expected and has created a huge controversy about lethal injection. CBS reports:

Arizona Attorney General Tom Horne’s office said Joseph Rudolph Wood was pronounced dead at 3:49 p.m., one hour and 57 minutes after the execution started.

Wood’s lawyers had filed an emergency appeal with the U.S. Supreme Court while the execution was underway, demanding that it be stopped. The appeal said Wood was “gasping and snorting for more than an hour.”

Word that Justice Anthony Kennedy denied the appeal came about a half hour after Wood’s death.

Wood, 55, gasped more than 600 times before he died.

You can go and read more about the execution, but I can already tell you what you’ll find: the defense attorney and abolition advocates arguing that the execution was botched, cruel, and horrific; the family and district attorney reminding everyone of the death of the victims; this or that doctor saying that, actually, he wasn’t suffering, just “snoring” – interpretations of pain, interpretations of suffering, moral equations, this, that.

But the bottom line–as argued by Austin Sarat as well as by Forbes Magazine’s David Kroll, is this: There is no right way to kill people. For all the effort we’ve made to make the procedure “appear swift and medical” as Kroll said, it still serves no purpose beyond killing people.

Death is suffering. The idea that we can surgically separate death–which is, according to the Supreme Court, constitutional, fine and dandy–from suffering, which is a violation of the 8th Amendment, is ludicrous. There have been botched hangings, electrocutions, gas chamber killings, lethal injections–every year, 3 percent of executions are botched. That everything is sterile and medical, and people were white robes and not executioners’ capes and hoods, means it’s more difficult to see the difference, but in a way it reveals a deeper truth: that the idea that there’s a “clean” execution, done “right”, is absurd.

In 1980, Justice Blackmun wrote this in a slightly different context:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

He was so wise. If he could only see the futile tinkering. This chemical, that chemical, one shot, three shots. There is no right way to kill people. Of course many of these people committed horrendous crimes and merciless killings of innocent victims. But do we really want to license the state to achieve symmetry in that department?

If, like me, you’re sick of tinkering with the machinery of death, sign my petition to the CA Attorney General not to appeal the recent decision that declared capital punishment in CA unconstitutional. We need 50 more signatures to make it to 500 before tomorrow. Let’s make it happen.

Ms. Harris, Do Not Appeal Judge Carney’s Decision!

Usually I’m fairly lukewarm about online petitions. They are often targeted at the wrong person, asking them to do something that they should do free of public influence.

Not so with this one.

I started a petition addressing the CA Attorney General, Kamala Harris, and Governor Brown, asking Ms. Harris not to appeal Judge Carney’s decision from a few days ago, which found the death penalty unconstitutional because of the delays involved in its application.

You can find the petition here.

I am asking YOU, gentle reader, to sign the petition, and to share it far and wide with your friends. Ms. Harris is an elected public official, and her decisions regarding charging and appealing should take into account the will and priorities of her constituents. Those constituents are you.

Ask yourself:

  • What can California do for YOU with $150 million in annual savings?
  • How much more retribution, deterrence, justice, and fairness are YOU getting from a dysfunctional death row?
  • If you are for the death penalty, how do you feel about the rarity of its administration?
  • If you oppose the death penalty, how do you feel about joining hundreds of signees that stand behind an argument that seems to make headway where human rights arguments have failed?
  • How comfortable are YOU with the prospect of the state making mistakes in death penalty application? Would YOU be okay with the elimination of the post-conviction quality control mechanisms we have in place?
  • Finally, are YOU comfortable with the criminal justice energy spent in this state–in time, dollars, public activity–on 724 people, when our correctional system encompasses 170,000 people statewide and locally in whose rehabilitation we could invest?
This is YOUR money, YOUR business, YOUR government. Please ask your government to usher us into the 20th century (not to mention the 21st) and leave Judge Carney’s just, fair, and prudent decision alone.
All you have to do is click a bit online and email a few friends, or share on Facebook.
All our Attorney General needs to do is–nothing.
Let’s do this.