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July 28, 2014

"Are Opponents Of The Death Penalty Contributing To Its Problems?"

The question in the title of this post is the headline of this notable recent NPR story.  Here are excerpts:

Kevin Cooper was convicted of murdering a married couple and two children, and was sentenced to die. That was back in 1985. Cooper is still awaiting execution on California's death row.

San Bernardino County District Attorney Michael Ramos, who is handling the case, blames the long delay on Cooper's multiple appeals in state and federal courts. "This is all a big strategic plan to really manipulate the system to attack capital punishment, not just in California, but in the United States," Ramos says.

The death penalty is under considerable pressure, both from court decisions and a series of problematic executions, including one this week in Arizona. Six states have abolished the death penalty over the past seven years. Death penalty supporters such as Ramos say this is no accident. They believe opponents intentionally toss sand in the gears of the execution process, and then complain that the system doesn't work. "It's a delaying tactic that then allows them to scream it's unconstitutional because it's been delayed too long," Ramos says.

Defense attorneys dismiss this as nonsense. The problems with the death penalty, they say, were not created by its opponents. "It's not the defense attorneys who are holding executions up," says Deborah Denno, a law professor at Fordham University. "Not by a long shot."...

Last week, U.S. District Judge Cormac Carney found California's system of capital punishment unconstitutional because executions are delayed for too long and are "arbitrary" in terms of which condemned prisoners are ever actually executed. Death penalty supporters argue that it's the killers — and their attorneys — causing most of the delays.

"Having done everything they can to cause the problem, they decry the problem," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, which defends victims' rights.

But many of the delays aren't caused by defense attorneys, rather the very lack of them, Denno says. In California, it can take years for a condemned prisoner even to be appointed counsel, and years more to wait for what is known as a post-conviction hearing.

"Even before a case gets to federal court, there's often more than 10 years of delays built into the system that don't have anything to do with what's brought from the defense," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo., which defends the condemned....

In addition to traditional questions regarding innocence and adequacy of counsel, defense attorneys now will typically challenge a state's method of execution. Lethal injections, which for years had a more anodyne reputation than gas chambers or the electric chair, have become problematic in and of themselves....

Scheidegger, the foundation attorney, says death penalty opponents, having successfully promoted lethal injections at the expense of older methods by portraying it as more humane, are now undermining states' use of drugs through their legal challenges.

Recent related posts on the California capital ruling by US District Judge Carney:

July 28, 2014 at 09:28 AM | Permalink

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Comments

This theme is covered a bit here too:

https://www.acslaw.org/acsblog/federal-courts-equitable-discretion-and-the-continuing-problems-with-lethal-injection

Anyway, the system has various drivers, and in certain respects opponents will be involved. The bottom line is to determine if the system is worth the candle. It has to be looked at as a whole. Some around here focus on certain parties (judges, defense attorneys etc.), but that's misguided.

Posted by: Joe | Jul 28, 2014 9:59:12 AM

My view will be consistent here. The problems with the death penalty are not caused by defense attorneys. But the reasons for striking down California's death penalty are not problems with the death penalty. A careful deliberative process that considers all arguments to make sure the decision to execute is a correct one is not cruely arbitrary. I do think many of the complaints cited by the court striking it down are caused by death penalty opponents, but that doesn't mean there aren't substantial problems with the death penalty either way.

Posted by: Erik M | Jul 28, 2014 4:44:02 PM

I agree with the defense bar. The fault lays with the legislatures and with the appellate judges who cater to their frivolous arguments to generate lawyer government make work jobs.

Posted by: Supremacy Claus | Jul 28, 2014 9:55:30 PM

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