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Dean Johnson on Return of the California Death Penalty

September 23, 2010

By the close of business on Friday, we should know whether the State of California will be able to resume executions of death row inmates.

In a nutshell, this is the situation: For nearly five years, the death penalty has been under two separate but interrelated injunctions. In 2006, lawyers for death row inmate Michael Morales filed an 11th hour writ seeking to stop Morales’ execution. Federal Judge Jeremy Fogel found that California’s execution procedures violated the Eighth Amendments’ prohibition against cruel and unusual punishment. Fogel found that California’s lethal injection protocol was so sloppy that a slow, excruciating death was a real possibility. Fogel stayed Morales’ execution pending Fogel’s approval of a revised protocol and proposed improvements in the execution facility.

The Department of Corrections revised the protocol, but, in 2007, lawyers for Morales challenged the protocol in Marin County Superior Court, arguing that the CDC had failed to follow the proper procedures for enacting new regulations under the State’s Administrative Procedure Act (APA). That challenge was successful, and the Court issued an injunction .

The Department of Corrections has since followed the requirements of the APA, issuing public notice of the regulations and asking for comments (thousands of comments were received). In short, the stage has long since been set for the next execution.

The new round of litigation began on August 30 when a Riverside County Judge issued a death warrant setting a September 29 execution date for Albert Greenwood Brown.

On August 31, a Marin County Judge ruled that the State Court injunction was still in effect. The Attorney General appealed this decision and, on September 20, the Court of Appeal lifted the injunction, clearing the way for Brown’s execution.

The next day, September 21, CDC official unveiled their new and improved death chamber.

Brown’s lawyers then went to Federal Judge Fogel, arguing that the changes in the CDC’s rules and its remodel of the death chamber were literally window dressing. Brown’s lawyers asked Fogel to stay Brown’s execution for the same reasons that he had stayed Morales’ execution in 2006. Attorney General Brown opposed the stay.*

Fogel is expected to rule on Friday. If Fogel finds the State’s remedial efforts to have been adequate, Albert Brown could be executed shortly after midnight on September 29.

But don’t count on it. One thing that is a certainty in death penalty litigation is that the litigation never ends. When lawyers are fighting to save a man’s life, they fight to the to the end.

A few facts to ponder about the death penalty:

-Californians spend about $100,000,000.00 annually on death penalty litigation and facilities for death row inmates;

-The new death chamber cost taxpayers about $853,000.00. It was constructed with prison labor;

-California has 709 death row inmates, far more than any other state;

-Three of those inmates, Brown, Morales and Mitchell Sims have exhausted their post-conviction remedies. The rest are still in litigation;

-The most common cause of death on death row is old age. Albert Greenwood Brown has been on death row for nearly 28 years;

-Green was convicted of kidnapping, raping and killing Susan Louise Jordan. Susan was 15 years old. After the murder, Brown called Susan’s parents and told them that they would never see their daughter alive again. He directed them to an orange grove where he had disposed of Susan’s body. At the time of the murder, Brown was on parole for having raped a 14-year old girl.

*There are those who see Attorney General Jerry Brown’s push for immediate executions as politically motivated. Brown has previously opposed the death penalty. During his first gubernatorial administration, he appointed Chief Justice Rose Bird, who put a practical halt to executions in California and expressed his personal disapproval of the death penalty. Brown is now involved in a close gubernatorial race. Those of you who have participated in my Strategic Decision Making class and who are of a cynical mindset may see Brown’s move as a manifestation of the Median Voter Theorem similar to that which we discussed in connection with the 2008 national elections. Brown, I am sure, would say that he is merely discharging his duty as California’s chief law enforcement officer.

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