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

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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's Supreme Court should put Proposition 66 out of its misery

California's death chamber
California's death chamber
California voters faced a binary choice in November’s election over the state’s death penalty system. Proposition 62 aimed to end capital punishment and convert all existing death sentences to life in prison without parole. Proposition 66, on the other hand, sought to speed up the system so that more people could be executed faster.

Both campaigns acknowledged that the state’s death penalty system is dysfunctional. Thanks to underfunding and legal challenges to the system, no one has been executed in a decade, even as the death row population has grown to 747 people. In fact, only 13 people have been executed since the death penalty was reinstated in California in 1978.

Of the two propositions, voters opted for the speed-it-up measure. That was a bad choice. It would trample defendants’ rights to due process and increase the chances that an innocent person will be executed. But first, it has to go into effect, which is not a sure thing. The California Supreme Court heard oral arguments Tuesday that Proposition 66 violates the state constitution by usurping the court’s authority and independence. Plaintiffs argued that it violates the separation of powers doctrine by requiring courts to finish hearing death penalty appeals within five years and that it contravenes a ban on overly broad and multi-pronged initiatives. Proposition 66 does all of those things, and more — and would not serve justice or the public interest.

More broadly, the death penalty is a stain on the United States, one of the few countries in the developed world that still allows it. The European Union even bars European pharmaceutical companies from exporting drugs to the U.S. for executions. Many American pharmaceutical companies similarly balk at having their products, designed to aid the ill, used to kill the condemned. Beyond its inherent immorality, the death penalty disproportionately affects the poor and minorities through a process in which human failure — including lies, innocently relayed untruths, evidentiary errors, mistaken identities, and malevolent prosecutors and police — can determine whether someone lives or dies. Since 1973, at least 159 death row inmates have been exonerated, and a National Academy of Sciences study estimates that at least 4% of people now on death row are innocent.

The reality is that innocent people have already been put to death. That is an outrage, and the only way to ensure it doesn’t happen again is to end the practice.

Even if the Supreme Court lets Proposition 66 stand, the measure still faces other likely challenges. So an already-expensive death penalty system will cost taxpayers even more as the state is forced to defend it in court. The irony here is that the effort to speed up the death penalty by shortening appeals could very well suffer through a prolonged appeals process itself before ultimately being struck down. It should be put out of its misery now.

Source: Los Angeles Times, The Times Editorial Board, June 10, 2017

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