America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

California marks 10 years since its last execution

San Quentin Death Row
San Quentin Death Row
“It’s a good day to die,” Clarence Ray Allen said shortly before he was executed on January 17, 2006 in San Quentin State Prison. He had turned 76 the day before, and had served 23 years and one month on death row.

He was the last inmate put to death in California.

In the ensuing 10 years, the death penalty debate has continued, at the ballot box, and in the courts. Here is a brief review of some of the major developments:

One month after Allen was executed, U.S. District Court Judge Jeremy Fogel blocked the scheduled execution of Michael Morales, ruling that lethal injection, the way executions were conducted, created a serious risk of suffering and lingering death that would constitute a violation of the Eighth Amendment’s ban on cruel and unusual punishment. “This causes a de facto moratorium on the death penalty in California, as no licensed medical professional will perform the procedure,” the Stanford Progressive wrote.

Governor Arnold Schwarzenegger ordered the CDCR to review its lethal injection protocols in January 2007, and five months later the department announced six revisions it said addressed the court’s concerns; including a screening, training and review program for execution team members, upgrading the death chamber, and modifying procedures used to administer lethal injection. The CDCR kept its original drug cocktail however, and questions remained whether this decision, and the other proposed modifications, actually decreased the risk of suffering and lingering death.

In June 2008, the California Commission on the Fair Administration of Justice issued its report on the death penalty and concluded that “California’s death penalty system is dysfunctional.”

The commission, which included legal experts and law enforcement officials, said that the system, with its endless delays and lack of executions, costs taxpayers around $130 million each year. The recommendation was to replace it with life without parole to save this money and end the dysfunction; or to drastically increase funding by hundreds of millions of dollars in an attempt to decrease delays and hire more lawyers who were qualified to navigate the byzantine capital appeals system.

In August 2010, the CDCR again proposed regulations, and a California judge temporarily lifted the injunction against lethal injection. Yet in December 2011, Marin County Superior Court Judge Faye D’Opal threw out the new procedures, saying that CDCR had violated the state’s Administrative Procedures Act process by not considering alternative methods and for not justifying its decision to push ahead with a dubious lethal injection protocol.

In June 2011, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula Mitchell (now a DPF board member) published a study estimating the total cost of the death penalty at $184 million each year. They also found that the state had spent more than $4 billion since reinstating the death penalty in 1978 to execute 13 people.

A year later, in November 2012, Proposition 34, which would have replaced the death penalty with life without parole, was narrowly defeated 52-48 percent. The initiative received nearly 1,500 endorsements from law enforcement officials, government bodies, elected officials, media outlets, faith leaders and religious groups, social and criminal justice reform organizations, and victims’ family members. It also changed the conversation in California about the death penalty. While there have always been plenty of people who think that executions are unjust, barbaric, and uncivilized, others began to question whether it made any public policy sense to prop up a system that seemed broken beyond repair and yet so expensive.

Perhaps reacting to the growing opposition to California’s capital punishment system, in late 2013 a group of death penalty supporters announced that they would seek to pass their own initiative. The proposed initiative sought extensive changes to California’s constitution, proposed a sharp reduction in the appeals rights for those on death row, and sought to remove safeguards around executions, while also cloaking the execution process in secrecy. By May 2014, the group would announce that it had been unable to collect the number of signatures needed to qualify for the November ballot.

In July 2014, U.S. District Court Judge Cormac J. Carney said the death penalty system is so broken that it unfairly leaves inmates with uncertain fates and ruled that it violated the Eighth Amendment’s prohibition against cruel and unusual punishment because of inordinate delays and dysfunction in the appeals process. He noted that there was no logic in who made it through the process, and that it takes 25 years, on average, to adjudicate each death penalty case. He then vacated the sentence of condemned inmate Ernest Dewayne Jones, the petitioner, stating that the reasons for his decision applied to the entire death sentencing scheme.

California's brand new death chamber
California's brand new death chamber
“In California . . . the death penalty is deprived of any deterrent or retributive effect it might once have had. Such an outcome is antithetical to any civilized notion of just punishment,” the judge wrote.

In June 2015, the U.S. Supreme Court ruled in a 5-4 vote that the sedative midazolam could be used as part of a lethal injection protocol in Glossip v. Gross, an Oklahoma case involving the legality of lethal injection.

As a result, CDCR, in its settlement in Winchell and Alexander v. Beard, proposed adoption of a single-drug lethal injection protocol in October.

In September 2015, Taxpayers for Sentencing Reform launched the Justice That Works Act, an initiative for the November 2016 ballot, that would repeal the death penalty and replace it with life without the possibility of parole, saving the state $150 million per year. The group drew together a coalition of conservatives, progressives, the wrongfully convicted, legal experts, law enforcement officials, faith leaders, and victims’ families.

A competing initiative, the California Death Penalty Reform and Savings Act of 2016, was launched in October 2015. Like the prior attempt to prop up the death penalty system, the initiative seeks to modify the appeals system and require untrained attorneys to accept complex death penalty cases whether they want to or not. The state government estimates that the initiative could potentially increase costs by tens of millions of dollars, and there would be no guarantee that it would solve any of the system’s current problems.

Also in October 2015, the CDCR released its new lethal injection protocol that gives executioners the option to use any one of four possible drugs to kill. Two of the options aren't available in the U.S. due to international boycotts and prohibitions from their manufacturers. The other two options have never been used in the history of the death penalty. After asking for public comments on the proposal, the CDCR faced extensive criticism for its lack of transparency and for other issues it had failed to correct after nine years. It is unclear how long the process will take or if it will be able to continue.

When Allen was executed 10 years ago, there were 646 men and women on death row. Today there are 746. The state is now spending approximately $150 million per year on the death penalty, and even more shocking, has spent at least $5 billion dollars since 1978, when the death penalty was reinstated. A death row inmate is more likely to die of suicide or natural causes than to be executed. If California were to repeal the death penalty and replace it with life without the possibility of parole, it would save $1 billion dollars in the next seven years alone.

And as 10 years have passed since the state stopped executions, the system's inherent problems have only grown worse and more salient. Public opinion has also shifted dramatically in that time as more people realize that the system is fundamentally broken and that a decade of attempts to fix it have yielded only more delays, dysfunction, and costs to taxpayers.

Source: Death Penalty Focus, February 2016

- Report an error, an omission: deathpenaltynews@gmail.com - Follow us on Facebook and Twitter

Most Viewed (Last 7 Days)

Texas: With a man's execution days away, his victims react with fury or forgiveness

Texas executes Christopher Young

Ohio executes Robert Van Hook

Saudi Arabia executes seven people in one day

Execution date pushed back for Texas 7 escapee after paperwork error on death warrant

Ohio Governor commutes one sentence, delays another

Ex-Aum member Yoshihiro Inoue’s last words: ‘I didn’t expect things to turn out this way’

Iran: Man executed in Mashhad; billionaire to hang over embezzlement charges

20 Minutes to Death: Record of the Last Execution in France

Oklahoma: Death row inmate’s legal team hopes DNA testing on key piece of evidence will exonerate him before execution