A Penalty Without Penalty — and to Jerry Brown, It’s Working
While running for governor of California in 2010, Jerry Brown admitted he would “rather have a society where we didn’t have to use death as a punishment.” But because the Legislature and California voters approved capital punishment, “we’ve got to make it work.”
Seeing as there are 725 condemned inmates living on San Quentin’s death row but have been no executions since January 2006, I asked Gov. Brown at a San Francisco Chronicle editorial board meeting Tuesday whether California’s death penalty is working.
“It’s working according to the Constitution of the United States; I can tell you that,” Brown answered. No, it’s not working. The U.S. Supreme Court has ruled that the death penalty is constitutional, but there hasn’t been an execution in California for six years.
Death penalty opponents should note that Brown, a former state attorney general, insisted there are no innocent inmates on California’s death row.
But Brown also argued that to make the death penalty work, California needs to spend more money — presumably by paying more for defense attorneys — and that is not his top priority. (His focus is on passing his tax-increasing ballot measure to pay down the budget deficit.)
“It is a basic law of government that if you ask people what is needed to fix any problem, they always say ‘more money’ for their particular function,” observed Kent Scheidegger of the pro-death penalty Criminal Justice Legal Foundation.
Brown must know that spending more money on lawyers won’t make California’s death penalty work.
In February 2006, U.S. District Judge Jeremy Fogel stayed the lethal injection of convicted murderer/rapist Michael Morales, lest California’s three-drug protocol cause a sedated Morales undue pain — and there hasn’t been an execution since.
In 2008, the U.S. Supreme Court upheld Kentucky’s three-drug protocol in a 7-2 decision, but Fogel didn’t budge. So it’s hard to imagine how paying defense attorneys more could end the Fogel court’s stay on California executions.
For six years, the state has been in a legal limbo. Californians get to pay for a death penalty without having a death penalty.
Scheidegger maintains that if Brown’s Department of Corrections and Rehabilitation switched to the one-drug lethal injection procedure twice recommended by Fogel, executions could resume this year. I’m not so sure.
Brown would not say how he plans to vote on a likely November ballot initiative to end California’s death penalty; he maintained he came to discuss his tax initiative plans.
But we do know what he said in 2010. In a debate with opponent Meg Whitman, Brown made this promise: “I pledge to the people of this state I will faithfully carry out our law on executions, and I’ll do it with compassion, but I’ll do it with great fidelity to the rule of law.”
It was four years after Fogel stayed Morales’ execution, and Brown knew how “fidelity to the rule of law” works in California. Laws that the U.S. Supreme Court upholds in other states are blocked in California. With the liberal bench and liberal bar acting in harmony, the law’s costs go up, and the results slow down. Then the whole system just stops, and no one is to blame. Except taxpayers.
Email Debra J. Saunders at [email protected].