As I noted last night, a Clinton-appointed judge named Jeremy Fogel has granted a stay of execution in the case of a man convicted of raping and killing a 15-year-old child in 1980. There is no denying he is guilty. Yet his execution will be held up until at least next year so that the judge can “conduct an orderly review” of a new execution protocol that the judge admits has not been shown to be deficient — and that the judge admits is superior in several demonstrable ways to a Kentucky protocol found constitutional by the U.S. Supreme Court.
The decision points up the need to have different methods of execution available to a condemned man in California, so that illusory deficiencies in one method will not hold up the execution of a clearly guilty man who has committed a monstrous crime.
As I see it, realistic possibilities include:
- Firing squad. To my knowledge, the firing squad has never been held unconstitutional anywhere. Several bullets to the head should produce a rapid and certain death.
- Gas chamber retrofitted with carbon monoxide. As far as I know, California’s gas chamber, which formerly used cyanide, is still around and functioning. Death by cyanide was improbably ruled unconstitutional by Carter appointee Judge Marilyn Hall Patel in the 1990s. Her decision was affirmed by the Ninth Circus in a decision written by Carter appointee Harry Pregerson, and not appealed. But there is absolutely no reason we can’t retofit the chamber to use a non-painful gas such as carbon monoxide.
- Overdose of barbiturates. Even our friend the liberal judge Fogel claims that this would be constitutional. Of course, there are issues: there is currently a nationwide shortage of the drug we used to sedate prisoners, and it could be discontinued almost entirely. Furthermore, the method found hunky-dory today will be declared horribly cruel tomorrow. Best to have several alternatives on the table.
This will have to be done by initiative. Our Democrat legislature will not vote to authorize new methods of capital punishment. Nor would any any such law be signed by Jerry Brown if were to be elected Governor. (I will have more to say about the conduct of the Attorney General in this case in a future post. Suffice it to say that he has not defended capital punishment in California as he claims he has.)
What we need is someone to bankroll an initiative authorizing these alternatives. Commenter Dana notes that a poll conducted this summer (.pdf) found that 7 in 10 Californians continue to support capital punishment. Citizens don’t want to see it used in every case, but they want it available for the worst of the worst. Over 700 such people currently sit on Death Row. If we don’t fix the situation they will all die of old age.
Albert Greenwood Brown raped 15-year-old Susan Jordan and strangled her to death with one of her shoelaces. The courts say he can’t suffer too much pain when he dies. That’s outrageous enough — but letting him live is more ridiculous. Let’s do what it takes to dispatch this fellow to the fate he deserves.