Patterico's Pontifications

5/4/2011

Jerry Brown Slowly Dismantling Death Penalty Apparatus in California

Filed under: Crime — Patterico @ 9:25 pm

In the excitement over bin Laden, Californians may have overlooked Jerry Brown’s stealth moves to do away with the death penalty in California. Last week he announced that he is cancelling the construction of a new death chamber that was being built to respond to bogus constitutional objections by meddlesome judge Jeremy Fogel. [UPDATE: Actually, he did not scrap a new death chamber, just a new Death Row — i.e., new housing for the inmates. See the UPDATE below.] Yesterday the L.A. Times reported that, not surprisingly, Brown’s decision has resulted in the state deciding not to pursue any more executions this year. Yes, we’re only in early May.

The development comes on the heels of Gov. Jerry Brown’s decision last week to scrap construction of a new $356-million death row facility. California faces another potential roadblock from looming legal challenges to the state’s acquisition of sodium thiopental, the key execution drug, which is no longer made in the U.S. and has to be obtained from foreign producers.

Lawyers for the state said it was not feasible to schedule executions this year, according to a transcript of the meeting with Fogel in his chambers Friday. Given the time it will take to put together a new execution team, train the 20-plus members and provide documentation of their qualifications to lawyers for condemned inmates, the execution procedures won’t be ready for review and potential approval until at least January, the judge noted.

Corrections officials have declined to say why Martel wants to change the execution team that was deemed ready in September, when the state was prepared to execute rapist-murderer Albert Greenwood Brown.

This is probably a more personal issue for me since I tried my first death penalty case last year. I won’t go into it in detail, lest this blog post become part of a federal hearing in 30 years, but suffice it to say that my defendant killed two innocent people in different incidents and laughed about it. Numerous witnesses and DNA evidence proved his guilt in an overwhelming fashion and the jury took about four hours to decide he deserved to die. But thanks to people like Jerry Brown, that defendant is more likely to die of natural causes than to suffer the penalty that the jury found appropriate, after hearing from two very experienced defense attorneys and a mitigation expert.

What gets me is how perverse the arguments can be. The death penalty costs too much, we are told by those who seek to make it as expensive as possible. The death penalty takes too long to administer, we are told by those who drag it out as long as possible. And, increasingly, the response from those who support the death penalty is to accept these arguments, rather than to fight them.

The L.A. Times in March proudly printed an op-ed from the famous “hanging judge” of Orange County, who sentenced 10 people to death, including the cretinous Rodney Alcala, who killed five girls, one of them 12 years old. He complained that the death penalty rarely actually results in an execution. Was his solution to streamline the appellate process? Strip away technicalities and focus on true innocence? No. It was simply to shrug his shoulders and give up. Gil Garcetti, my former boss, used to refuse extraditions from Mexico that were conditioned on our not seeking the death penalty. He threw such principles to the wind and agreed with the “hanging judge” that the barriers erected by death penalty opponents are simply too much even to try to overcome.

Why do we accept such ridiculous arguments? Why do we take it seriously when a Death Row inmate delays his execution as long as possible, and then complains that the delay is unconstitutionally cruel? Why do we take it seriously when people who tortured little girls to death complain that a carefully administered drug cocktail is too cruel because it might cause them some pain?

Me, when I hear these arguments, I don’t want to give in to them. I want to fight.

But my position is an increasingly lonely one.

Congratulations, California. You’re getting what you asked for.

UPDATE: With all the delays, I assumed that the decision to scrap a new Death Row carried with it the consequence of scrapping a new death chamber. Brown has scrapped the former but not the latter, as pointed out by commenter aphrael. The new chamber is already complete. Sorry for the mistake.

With this explanation, I am less agitated now that there will be no new Death Row. But I remain irritated at the inexplicable delays, caused by bizarre decisions like the decision to ditch the old execution team in favor of a new one, with no reason given.

Oh — and by the way, I have a bone to pick with Carol J. Williams regarding her description of conditions on Death Row. But that will take another post to address.

35 Responses to “Jerry Brown Slowly Dismantling Death Penalty Apparatus in California”

  1. I am one who is opposed to the death penalty, but I too have great distaste for the idea that you can circumvent the political process and use legal skullduggery and dishonest appeals to emotion over logic to make it impossible to carry out capital punishment. It’s part of what has become all too common in this state: if the voters are against your position, you just find enough like-minded people in high places and do an end-run around them.

    JVW (fb14f8)

  2. the death penalty is really harsh I hated it when it happened to bjork in that movie but in real life I don’t really have any problem with it and I don’t see why we need “sodium thiopental” – in fact I think that shows an egregious lack of imagination

    happyfeet (760ba3)


  3. Me, when I hear these arguments, I don’t want to give in to them. I want to fight.

    But my position is an increasingly lonely one.

    “There is no week, nor day, nor hour, when tyranny may not enter upon this
    country, if the people lose their supreme confidence in themselves – and lose
    their roughness and spirit of defiance.”

    – Walt Whitman –

    Fear for the future of the world. A fascist Amerikka — a true one, not the ludicrously fantasized one of the postmodern Left, is possibly just around the corner.

    The net result of the Germanic system of education has been to eradicate that roughness and spirit of defiance from the American populace.

    We’re no different from the Germans, we’re just 80 years behind them. We have lost our willingness to stand up and tell people — people who deserve to be told this — to “Get F***ed!!”

    I cannot describe the number of times I’ve despaired when, out with friends, we’ve clearly gotten bad service, and everyone is terrified to even mention it to anyone, AND go way out of their way to try and suppress YOU from saying anything.

    “Don’t honk your horn! Someone might be offended!!” Huh? WTF you talkin’ ’bout, Willis?

    We’re becoming the worst of France AND Germany. Bleating Yellow Sheep.

    IgotBupkis, President, United Anarchist Society (c9dcd8)

  4. Can we slowly dismantle Jerry ”bleeding heart” Brown.

    DohBiden (15aa57)

  5. I can’t really quibble with him saving 365 million. And you just know how much union trash would’ve fed at that trough.

    happyfeet (760ba3)

  6. Well, let’s see here. It has become necessary for our troops to kill rather than capture terrorists due to the meddlesome judges in the US. This may make it necessary to come up with a protocol that encourages violent confrontations with killers so that they get killed in the crossfire rather than risking having a judgey wudgey from California overturn the verdict. That would be regrettable.

    I also wish people would quit calling it punishment. Yes, prisons are very unpleasant inside. But prisons are expensive to maintain and far far less unpleasant than they should be if they were punishment. I see a better use for prisons and the death penalty. Prisons are a means of protecting society from repeat and new predation by proven predators. I don’t care if they are also punished in prison. I do care about what it costs to warehouse them. I like the Arpaio approach in that regard.

    {^_^}

    JD (bcdcf2)

  7. The muslim brotherhood and their associates are an islamocommie group so these fascists and their allies need to be tried and summarily deported to gitmo.

    DohBiden (15aa57)

  8. has anyone checked on Mr. Dr. Mike it seems like it’s been ages

    happyfeet (760ba3)

  9. Hello Jerry!! (with Newman’s voice)

    Seen Linda Ronstadt lately?

    JP (c4988c)

  10. Maybe Judges in California should sentence defendants to burning Korans in front of Mosques instead of this formal death penalty stuff.

    daleyrocks (bf33e9)

  11. Robert Byrd denounced Racial Intolerance but it still does not change the fact he used the n word on tv in 2001 and is all around racist bigot who did not want to serve in the military with black people.

    DohBiden (15aa57)

  12. Idiot redux. Sounds like a Democrat is using signing statements to undermine the will of the people. Hmmm . . .

    Icy Texan (8f7840)

  13. _____________________________________

    Congratulations, California. You’re getting what you asked for.

    Yep, an Americanized version of, for example, Mexico. I say that based on the sloppy leftist political trends and policies that have been evident in that society for decades. Trends best symbolized by Mexico’s Supreme Court ruling several years ago that not only was capital punishment unconstitutional, but, hell, so was life in prison without the possibility of parole. But at least Mexico is a relatively crime-free, prosperous, tranquil nation.

    Mark (3e3a7c)

  14. Patterico, just to clarify, the death chamber construction is not cancelled. The construction is finished. It was finished several months ago. See, eg, this report. When I visited San Quentin in February, Judge Fogel had just reviewed it and an opinion on its suitability was expected imminently.

    What was cancelled was the construction of a new death row, eg, new inmate housing for death-condemned inmates.

    aphrael (9802d6)

  15. This may make it necessary to come up with a protocol that encourages violent confrontations with killers so that they get killed in the crossfire rather than risking having a judgey wudgey from California overturn the verdict.

    That’s a good point, JD. I remember reading several years ago that although our friends in “enlightened” Europe have abolished the death penalty, in France a very high percentage of criminals sentenced for killing cops end up somehow hanging themselves in prison, and the investigation into the circumstances of these “suicides” invariably ends up being rather slipshod. Perhaps abolishing the death penalty here will encourage law enforcement to enforce it on a — how to say it? — more informal basis.

    JVW (fb14f8)

  16. Patterico, the saddest part is this: You could have written this post on any random day during the last 30 years; and everything you write will likely still be true, or worse will be true, in 10 more years.

    The smug placidity of those who tolerate, enable, or actively the subversion of law in California is another reason I could never live there. I’d end up showing my true feelings by literally spitting in someone’s face — for which I’m relatively sure I’d end up being arrested and perhaps doing some time (when I refused to express remorse). It’s best I stay in Texas.

    Beldar (acb014)

  17. “actively the subversion” –> “actively plot the subversion”

    Beldar (acb014)

  18. @JVW: I actually agree with the 1972 SCOTUS series of cases collectively referred to as Furman v. Georgia, which focused on the essential arbitrariness of most of the then-existing capital punishment statutory schemes. While I share the sentiment that motivates you, what you’re proposing (or describing) is nevertheless essentially lawless and criminal itself.

    I believe society’s legitimate interests in retribution are enough, by themselves, to justify the death penalty. Yet there is certainly some value — how much is a matter of continuing debate and necessarily requires speculation — to the deterrent effect of capital punishment.

    As presently (mostly not) administered in California, there is so little likelihood — much less certainty — associated with the death penalty that it has become, again, essentially arbitrary: It’s only a rare confluence of extraordinary factors that might ever permit a California execution to proceed as planned.

    As a general rule, people get the government they deserve. I do feel badly for those like our host, though, who’re condemned to struggle upstream in an attempt to serve justice despite the fundamental unseriousness of the government though which they’re employed.

    Beldar (acb014)

  19. aphrael,

    Thanks for that important clarification. I updated the post.

    I am a little tiny bit mollified now, but not much. Why was the execution team replaced?

    Patterico (c218bd)

  20. Why was the execution team replaced?

    I don’t know. The media are blaming it on the San Quentin warden, and allegedly Corrections isn’t explaining.

    aphrael (fe2ce4)

  21. Beldar,

    As I’ve said before.

    Some people say that the death penalty does not deter murder. I believe that that is true if there aren’t executions. Engram has put together a number of charts that show that around 40 executions a year actually deters murder by up to 2,100 a year! I think that’s a big benefit for killing the killer. Many people seem to be worried about the mythical innocent person who might be executed. I’m willing to live with that risk if it means 2,100 less murders a year.

    Engram is a professor at a research university, a registered Democrat and has a number of interesting posts on the death penalty.

    That’s 2,100 less murders a year! Even if a person is put in prison for life, they can be involved in the murder. There have been instances of gang members running their gang from prison. I believe that in most states the death penalty isn’t just given without special circumstances. It’s not given just because a person murdered another human being. There have to be special circumstances like more than one person, torture, killing a police officer, particular brutality…

    Many who object to the death penalty do so out good intensions. The problem is that good intensions often lead to bad law. In this case many more murders than the chance of an innocent person being executed. If a person really believed in the value of life, I think they would have to agree with Engram’s analysis. To not agree means around 2,100 more murders a year.

    Engram’s blogspot site is no longer available but it can still be referenced at archive.org.

    Tanny O'Haley (12193c)

  22. Many people seem to be worried about the mythical innocent person who might be executed. I’m willing to live with that risk if it means 2,100 less murders a year.

    Granted there are those mythical innocent people that are “found guilty” of murder and wind up on death row. Dallas county texas has had a lot of exonarations over the last several years. But it is rare that someone with no priors would have been picked up as a suspect in the first place.

    Joe (5646aa)

  23. This is not just Jerry Brown. Kamala Harris, the boss of the lawyers in the litigation, is also personally against the death penalty but ran on a platform that she would enforce the law (except not in the near future or, apparently during her tenure). I would note that not a single person has been executed with Harris or Brown as Attorney General. Their approach with the Morales litigation shows me that they are not fulfilling their constitutional duty to defend the death judgments.

    The reality is that Brown and Harris love this situation with Morales. They can claim to be trying to enforce the law while dragging their feet in actually getting a case to execution. It has been five years, how long does it take to train the execution team? Answer, as long as the defense and Judge Fogel will wait.

    We Californians deserve it. Cooley tried to make her death penalty stance a campaign issue, no one cared. Every time he brought up the issue Kamala Harris said she was just like AG Brown and then changed the subject.

    I hope someday someone from the Capital Litigation Unit of the AG’s comes clean and tells the story of the intentional and cynical delay of this litigation and associated elements to frustrate, and possibly destroy, the death penalty in California.

    David (f7a293)

  24. While the vast majority of Californians celebrated the execution of OBL, their leader announces that Californians will not be afforded the same privilege against those who actually kill Californians.

    Ludicrous.

    Ed from SFV (4a7c52)

  25. Just three words: Richard Allen Davis.

    Old Coot (5f26d8)

  26. Ludicrous indeed Ed.

    DohBiden (15aa57)

  27. It’s as if the last 40 years, has made no impact on them, at all, but this is akin to the Alinskyite war on military commissions, and enhanced interrogations that they have waged this decade.

    narciso (79ddc3)

  28. It takes a long time to proceed from sentencing to execution to MAKE SURE of guilt. And if both sides are not, shall we say, honest, then the possibility of error grows.
    I’m thinking of attorneys withholding, losing, forgetting docs, evidence, entire people.
    Jenny

    Jenny (61a90f)

  29. But prisons are expensive to maintain and far far less unpleasant than they should be if they were punishment.

    Were prisons always this expensive?

    Is there any data as to how expensive prisons were in ancient Egypt?

    Perhaps abolishing the death penalty here will encourage law enforcement to enforce it on a — how to say it? — more informal basis.

    It certainly would be cheaper.

    Why do we take it seriously when a Death Row inmate delays his execution as long as possible, and then complains that the delay is unconstitutionally cruel? Why do we take it seriously when people who tortured little girls to death complain that a carefully administered drug cocktail is too cruel because it might cause them some pain?

    I think this is indicative of a more general trend of our society being pussified. Whatever ancient Rome’s faults were, they were perfectly willing to give brigands and bandits the punishment due to them. And I doubt crucifixion was expensive.

    Michael Ejercito (64388b)

  30. As I recall, we very expert testimony that death by dehydration is painless, even euphoric.

    LarryD (feb78b)

  31. @ Tanny (#21): There’s lots of anecdotal evidence that a credible death penalty can deter at least some crimes from at least some criminals. I’m not, in general, a fan of the attempts by social scientists who claim that they’ve “proved” this empirically, however.

    Nevertheless, even if anecdotal evidence is merely anecdotal, and even if attempts to prove deterrence through social science studies are inevitably flawed and speculative (such that they never can conclusively prove deterrence or its absence), I’m quite certain that California’s death penalty can’t possibly be as effective a deterrent as Texas’ death penalty. It Texas, the death penalty usually means a needle. In California, despite the efforts of those (like our host) who actually obey their oaths to enforce the law, the death penalty is a very bad joke. Deterrence in Texas may be great or it may be small, but no one can doubt that it is greater than in California.

    And whether the deterrent effect is large or small, the retributive function of the death penalty — the exacting of justice, of a penalty that’s due and proportionate to the crime — is completely undercut if the death sentence is never in fact carried out.

    The difference isn’t so much between what the Texas and California legislatures have done. It’s that in California, there is an organized and effective conspiracy to subvert those laws as written. In Texas, by conspicuous contrast — and that conspicuousness is indeed deliberate, and socially useful — they’re enforced. But in California, the California conspirators go unpunished, indeed continue being re-elected. I could not deal with such people on a day-to-day basis without communicating my contempt for them, which would make me an ineffective prosecutor. I admire Patterico in part because he’s more self-disciplined than I am; but how long can he and the relatively few like him, continue their struggle on behalf of justice against the conspirators who’re so successfully subverting it?

    Beldar (acb014)

  32. I am continuously reminded of the scene in “Red Heat” between Jim Belushi and Arnold, where Arnold is discussing how the ChiCom’s dealt with their drug problem (they shot everyone), and Belushi said the lawyers would never stand still for it.
    Arnold’s response: Kill them first!
    (Present company excepted?)

    AD-RtR/OS! (b8ab92)

  33. The difference isn’t so much between what the Texas and California legislatures have done. It’s that in California, there is an organized and effective conspiracy to subvert those laws as written. In Texas, by conspicuous contrast — and that conspicuousness is indeed deliberate, and socially useful — they’re enforced. But in California, the California conspirators go unpunished, indeed continue being re-elected. I could not deal with such people on a day-to-day basis without communicating my contempt for them, which would make me an ineffective prosecutor. I admire Patterico in part because he’s more self-disciplined than I am; but how long can he and the relatively few like him, continue their struggle on behalf of justice against the conspirators who’re so successfully subverting it?

    Can’t someone charge those conspirators with aiding and abetting?

    And where is the media on this? This is a scandal!

    Michael Ejercito (64388b)

  34. “Can’t someone charge those conspirators with aiding and abetting?” – Michael Ejercito

    In the case of California, the people who could charge them are the same ones who should be charged.

    “It’s that in California, there is an organized and effective conspiracy to subvert those laws as written.” – Beldar

    You mean like when the Attorney General declines to defend laws that he, personally, doesn’t agree with? This goes back at least as far as Prop 187 and Gray Davis. I believe that if your AG won’t do his job, then he should be a future guest at one of our fine state prisons. 😎

    I do care about what it costs to warehouse them. I like the Arpaio approach in that regard.” – JD

    I think Joe Arpaio is way too lenient with his prisoners and he seems to have way too few of one particular class of criminals. The elected kind.

    Seriously, a prisoner in CA has more rights and protections than a normal citizen. A right to TV? How does this pass the smell test? A right to sue the victims of their crimes because the criminal got injured while committing his crime? How many of those cases have you seen and why were they not thrown out by the judges? The San Diego county jail has nicer accommodations for the prisoners than the local Navy base has for the enlisted personnel. (Better food, too.)

    Prisons should be for the purpose of punishing the offenders. As such, it should be a harsh, unpleasant environment designed to do one thing. Convince the criminal that he would rather do anything other than EVER risk a return visit.

    Jay H Curtis (8f6541)

  35. A right to sue the victims of their crimes because the criminal got injured while committing his crime?

    What were the exact circumstances of these injuries?

    Michael Ejercito (64388b)


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