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June 6, 2010

"California has high hopes of reinstating death penalty"

6W5DEATHPENALTY.highlight.prod_affiliate.4 The title of this post is the headline of this front-page story from the Sacramento Bee.  Here is how the piece gets started (and click here for a larger version of the graphic that accompanies the piece):

When Caryl Chessman died in California's gas chamber 50 years ago – probably the state's most notorious execution – 18 inmates were left on death row. Today, there are 702. The last execution at San Quentin State Prison was that of Clarence Ray Allen on Jan. 17, 2006, the 13th in California since 1978.

Since that day, at least 205 convicts have been executed in other states, 24 death row inmates at San Quentin have died from natural causes or suicide, and 83 people have been sentenced to death in California courts.

But no one has been executed in California since Allen. That's largely because of two court challenges over the state's lethal injection methods and its attempt to short-circuit the procedure for revising those methods.

Now corrections officials hope they are on the verge of winning approval of their rewritten lethal injection rules, which will give the rules the force of law.  That approval, due by Friday, will reignite a pending legal battle over whether California can rejoin 34 other states that have the death penalty, and whether it should.

Supporters and opponents say the likelihood of executions resuming anytime soon in California is slight. "I've just kind of lost faith in the system, that it's ever going to work," said Barbara Christian, a 72-year-old Wilton woman whose daughter, Terri Lynn Winchell, was savagely raped and murdered 29 years ago when she was 17.  "I'd like to see justice for my daughter."

I think Ms. Christian's pessimism is justified, and I will be surprised if California gets back into the business of execution anytime soon.  As this Bee article does on to spotlight, the new California protocol will surely be challenged vigorously in both state and federal courts, and there is little reason to for death penalty abolitionists to fear, or for death penalty proponents to hope, that the judges on the Ninth Circuit in particular will be in any big rush to make sure lethal injection litigation gets resolved quickly.

The extraordinary slow pace in which California has tried to improve its lethal injection protocol stands in remarkable contrast to Ohio's ability late last year to completely revise its execution protocol and resume executions within a matter of months.  The Ohio lethal injection story highlights that where this is a true will, there is often a real way to improve the administration of capital punishment.  But I do not think this will really exists in California, even though the state clearly enjoys putting more people on death row than any other state in country.

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". . . the new California protocol will surely be challenged vigorously in both state and federal courts, and there is little reason to for death penalty abolitionists to fear, or for death penalty proponents to hope, that the judges on the Ninth Circuit in particular will be in any big rush to make sure lethal injection litigation gets resolved quickly."

Wow, Doug, do you realize how utterly damning that comment is?

I wouldn't be so sure that the Ninth really can stop things. The bottom line is that there is nothing to stop the setting of an execution date, and once the date is set, then Baze has some pretty clear direction on what is necessary to get a stay, and I doubt the condemned would be able to overcome that. The Supreme Court has lifted stays in the past, and I suspect that it would do so here. As for state courts, we'll see.

Ms. Christian deserves justice, and Fogel, because he got it wrong, really ought to apologize.

Posted by: federalist | Jun 6, 2010 12:00:46 PM

The Supremacy is at a party in LA. The board certified doctor/law student that Fogel brought in to help him write his decision is invited but is not showing her face because she is such a weasel. She does not want to hear all the flak she will get as a weasel. This weasel could come up with an infinitude of pretexts to protect the murderer.

However, a supervisor of the public defender death penalty appellate service is there. She is giving the Supremacy the usual pretextual, lawyer, criminal lover argument about cruelty of lack of training, mistakes, blown IV's, etc. The Supremacy is just nodding its head. Sure, sweetie. The Supremacy then asks her, "What's that?" The lawyer extends her arm, to reveal a huge, nasty looking, swollen, black and blue area, where blood drawing technicians could not get her blood for a blood test that morning. I asked her if that had violated her Eighth Amendment rights. She says, no. I gave my consent. I said, you consented to having blood taken, not to have ham handed butchers rummage around in there. The condemned had a trial, a long course of legal appeals, and had their rights far better protected than she had. Was her treatment by blood technicians cruel? She said no, they were just trying to help her. She does not even want to sue anyone.

The legal pretext should be criminalized. Judges allowing any should be removed immediately, and put on trial, then sent to prison for corruption of the legal system. The rent seeking theory predicted Baze. It did not ban the death penalty. It insured that the legal controversy would continue and provide good, long term lawyer jobs for my friends in LA.

Posted by: Supremacy Claus | Jun 6, 2010 1:21:55 PM

I spent some time this weekend with Dennis Fritz, a Missouri man who occupied a cell on death row in an Oklahoma prison for nearly 12 years before winning exoneration by virtue of DNA evidence and a lot of hard work by Barry Scheck's innocence project.

As you might imagine, SC, Mr. Fritz -- who "had a trial, a long course of legal appeals" and the benefits of an obviously ineffective rights-protection ritual -- is well pleased your death penalty sensibilities have yet to carry the day.

Posted by: JohnK | Jun 7, 2010 7:32:15 PM

John: You want to use the error rate as a pretext to stop all death penalties. By that logic, you should advocate stopping all transportation, including walking. Far more pedestrians are killed a year than convicts are put to death. We should end all trials, all plea bargains, all medical care, because each is burdened by some substantial error rate. These activities may resume when their error rate is zero.

To be fair, this error rate argument is easily refuted. On the other side, the deterrence can be as easily refuted. One may not put a person to death to intimidate a future, speculative criminal who has yet to commit a crime and is unknown to all the parties involved. That violates the procedural due process rights of the death penalty defendant.

Both the error rate and the deterrence argument are self-evidently flawed.

Both problems are solved by 123D. It does not matter if the third conviction is false, one is expelling from earth an ultraviolent dangerous person. One is not deterring another by having the certainty of the death penalty awaiting the defendant who has committed two violent felonies. One is deterring the person, and not a stranger.

Posted by: Supremacy Claus | Jun 7, 2010 9:14:35 PM

Do you have any idea, SC, how fatuous and cruel it sounds to be so blithely dismissive of "error rates" when the consequences of the errors are the executions of innocent people?

By your logic, the execution of an acceptable number of innocent people must be countenanced in order to keep the trains running on time.

Surely Blackstone is turning over in his grave

Posted by: John K | Jun 7, 2010 11:05:35 PM

In the interest of accuracy, actually Fritz was serving a life sentence. His co-defendant, Ron Williamson (who was also exonerated), was on death row.

Posted by: John K | Jun 7, 2010 11:21:34 PM

John: There are 40,000 deaths from transportation accidents, as sure to come as the sun is to rise in the East. These are carried out by butchery of the living body, mostly on people who made a simple mistake or made no mistake whatsoever, and do not deserve to die. Many live for hours or days to suffer unspeakable agonies before expiring. Why no concern about that ghastly error rate, and shutting down transportation until that problem is solved?

I object to the false use of the law in the judiciary to further what should be a legislative agenda. If you object to the death penalty, lobby the legislature to end it. I respect that. However, do not use weasel excuses, of which there is an infinite number, to sneakily get what you want but through the undemocratic courts. If you use a weasel pretext, then explain your silence about error rates that kill 100 times as many people, by methods 100 times crueler.

I also want credit for spotting a pretext on the other side of the debate, deterrence. This even handedness shows that I object to the false use of the law no matter which side abuses it.

As to Blackstone, that bewigged toady voted for the Stamp Act. He condemned our beloved patriots to death in absentia, in star chamber style proceedings. He was a total royal kiss up, a disgusting human being, who believed the Sovereign could do no wrong by definition. And as to his, "Better that ten guilty persons escape than that one innocent suffer," that is pure lawyer self-dealing and rent seeking. These eleven have all paid the lawyer a fee. Their thousands of past and future victims have not paid a lawyer a fee, and may rot.

Posted by: Supremacy Claus | Jun 8, 2010 6:06:25 AM

Error rates, as SC benignly characterizes executing the innocent, aren't the only or best argument against the DP.

Executions are barbaric and therefore inappropriate in civilized society. Dwelling on the innocence/error thing suggests the DP would be OK if we could be certain the condemned actually did what they were accused of doing. It wouldn't be. Barbarism is barbarism...you either condone it or you don't. Haggling about cost in the context of state-orchestrated killings seems out of place as well.

Beyond that, I don't recall ever (before now) putting the words barbaric and accident in the same sentence, and the context for our debate is justice, not traffic safety.

Might as well argue it's OK for states to kill innocent citizens because they would have died eventually of an accident, a disease or old age.

Clearly you have a different view, SC, but I wouldn't want to live under unfettered legislative rule. Troglodytes, mouth breathers and loud angry authoritarians (key components in any lynch mob) almost always form at least a slim majority in primaries. And that makes them disproportionately influential in lawmaking tailored to their tastes.

Nor would it strike me as inappropriate or interferring for the top court, if it could muster five votes, to ban executions as cruel and unusual.

Posted by: John K | Jun 8, 2010 11:00:58 AM

The error rate has been used by criminal lover lawyers, such as the governor of Illinois, to stop the death penalty. It is being used as a pretext by the lawyer.

It is not that simple. By ending the effective incapacitation of the death penalty, you are substituting the less effective life in prison. While in prison, your birds kill hundreds of people a year. The deceased kill no one. You never mention murder victims nor future murder victims. Why? They are just as dead as the executed convict, but all went rough. Why? Because the criminal generates government make work, and the victims generate no government make work for lawyers, judges, prosecutors, prison employees, parole officers. These pretend to try to protect the public. However, they always protect the criminal to the extent it protects their jobs. That is why you call executions barbaric but refuse to address the butchery that takes place during a murder or during a traffic accident. Our country is barbaric as a result of this lawyer forbearance. There are huge areas where the public will get its throat cut for $5 in their wallet. Not a word about the barbarism of our culture resulting from the protection of the criminal by the lawyer.

Posted by: Supremacy Claus | Jun 8, 2010 12:59:55 PM

EVEN THOUGH CALIFORNIA BOASTS OF NOT EXECUTING ANYONE SINCE 2006 AND OF NOT HAVING EXECUTION DRUG AND WAITING TILL 2011, A 3YEAR OLD AND HIS FAMILY IS BEING EXECUTED JUST FOR BEING HINDU AND MUSLIM IN THIS CHRISTIAN LAND. HOW CAN A 3 YR OLD COMMIT CRIME? HE SHOULDN'T BE PUNISHED FOR PARENT(S)' CRIME IF ANY?


SINCE MULTIPLE LETHAL INJECTIONS HAVE BEEN GIVEN TO ME ,AND HE, I, AND MY WIFE HAVE BEN FED POISON WAY TOO MANY TIMES, WE CAN'T BE EXECUTED--SINCE LETHAL INJECTION SHOULD BE JUST ONCE--PAIN AND TORTURE UNBEARABLE. BESIDES EACH ATTEMPT MEANS ONE EXECUTION. HOW MANY TIMES CAN ONE EXECUTED? VIOLATION OF CA , USA, AND INTL LAW (GENEVA CONVENTION)
PLS STOP THIS EXECUTIONS. GOD WILL BLESS U . TRUE CHRISTMAS AND NEW YEAR THEN,. ELSE BLOOD ON UR HANDS. PLS CALL/.EMAIL JERRY BROWN AND ERIC HOLDER AND OBAMA TO STOP THEIR EVIL MADNESS!

Posted by: RAJAN SINGH | Dec 27, 2010 10:24:24 PM

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