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Capital Punishment Politics

By Elisabeth Semel, Los Angeles Times

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 correction's 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 grant a reprieve 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 that they can return California to solvency. But even as day-care centers are closing, teachers are being laid off and services for the poor and disabled are being curtailed, and the state parks are having rouble paying for toilet paper, 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 the system were 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.

Elisabeth Semel is a clinical professor of law at UC Berkeley's school of law, where she directs the Death Penalty Clinic. 9/28/2010