Execution Now Off as We Look at Jerry Brown on the Death Penalty –
There was just a surreal element going on with Jerry Brown pushing for the rush to execute ahead of the Governor’s election, and Governor Arnold Schwarzenegger moving in the other direction. On Monday the Governor ordered a one-day delay in the execution, giving defense time to file appeals.
On Tuesday, Judge Fogel ordered a stay of the execution, agreeing now with the 9th Circuit that he needed more time to figure out if the procedure he ordered actually worked. But the Attorney General – yes, anti-death penalty advocate Jerry Brown – promised to appeal.
However, on Wednesday State and Federal courts agreed with Judge Fogel that we need more time. That postponed the execution at least until next spring, probably longer.
This is surely the stuff that makes for good news stories, but I am less sure it makes for good policy.
I know people do not have a lot of sympathy for someone like Albert Brown, but perhaps they could at least appreciate the rollercoaster he must have gone on, believing he was about to die, only to have his execution postponed again.
Certainly more people will have sympathy for the family of Susan Jordan, the murder victim from 30 years ago. They too have likely been on an emotional rollercoaster ride the last few weeks.
“Our sympathies go out to the family of Susan Jordan, who was killed by Albert Brown nearly 30 years ago,” said Judy Kerr, the sister of a murder victim and outreach coordinator for California Crime Victims for Alternatives to the Death Penalty. “They have been on a cruel legal rollercoaster for decades. We cannot imagine what the events of the last few weeks have been like for them.”
For those who think that the death penalty is better for the victims of crime, studies show that it is not. Many families would prefer that the individual have to live in prison and think about it the rest of their lives.
“This is just another example of why California’s dysfunctional death penalty system should be replaced with life without possibility of parole, with work and restitution to the victims,” said Lance Lindsey, Executive Director of Death Penalty Focus. “Life without possibility of parole is swift and certain punishment. By replacing the death penalty with life without possibility of parole we would save the families of murder victims from this painful, legal rollercoaster ride. And the state will save $1 billion in five years and avoid legal chaos like this.”
The legal drama that has unfolded as the state tries to execute Albert Brown has shocked legal experts, but just confused everyone else,” wrote Suzanne Ito from the ACLU on Wednesday.
Taking a step back here, five years ago executions were put on hold because of a myriad of problems with the process of executing people.
“Execution teams were poorly trained, didn’t understand the deadly substances they were handling, and were working in dark, cramped conditions,” Ms. Ito wrote. “That’s a recipe for botched executions, which has happened too often in California. When Judge Jeremy Fogel, a federal judge, heard that evidence, he told the state they had to fix the procedure.”
Five years later the problem was not fixed. Legal experts reported little chance of the execution taking place because of no less than three pending lawsuits over the procedure and a brand new set of regulations that had never been reviewed by a judge. There were just too many open questions, and the state had simply not finished its task of creating a workable procedure.
Why then did we have a sudden rush? Because Attorney General Jerry Brown set an execution date, even amid serious questions about the procedure, and Judge Fogel strangely acceded to politics over reason.
“Why the sudden rush to kill?” asked Suzanne Ito. “After all, California has gone 4 1/2 years without any executions and in that time, the murder rate has gone down.”
Even more bizarre is the answer. “The answer is an odd one: the expiration date of the lethal drug,” she said.
She continued, “The AG revealed on September 25 that the drugs they need to kill go bad on October 1, and the manufacturer says there won’t be any more available until 2011 (along with a statement about how this drug is supposed to heal people not kill them). Interestingly, the state seems very concerned about at least one line on the drug’s label (its expiration), but wholly unconcerned with another line (its intended use).”
Why is Jerry Brown Pushing the Death Penalty?
He said that he would rather have a society without the death penalty as preference, but he was overruled by the people and will have to make it work. He said that as Attorney General he has defended hundreds of death penalty appeals. The process, he said, goes on forever.
He believes the process can be sped up, but he emphasized the need for people to get their full habeas corpus appeals. He would need to appoint the right personnel and give people the access to a first class defense to prevent innocent people from being executed.
From all accounts, Jerry Brown, a lifelong opponent who has been often vociferously opposed to the death penalty, was the instigator of the rush to execute. Should we be surprised?
Perhaps not. From the moment he ran for Attorney General he vowed to follow the law on the death penalty.
“The people of California can count on me to follow the law,” Jerry Brown said in June of 2006. “It’s the law, and I will follow the law.”
“The Attorney General’s duty is to follow the law. That means upholding death penalty convictions and defending these convictions through the appellate process.”
Earlier this year, he said, “I respect the will of the people and I’ve demonstrated my fidelity to the law. There’s no one who has defended as many death penalty convictions as I have.”
In May, the Los Angeles Times reported that AG Brown “elevated Dane Gillette, a staunch defender of the death penalty, to head the office’s criminal division. Gillette’s years of fighting death-row appeals won him the nickname ‘Dr. Death.'”
Even in the 1970s, Jerry Brown apparently had a similar viewpoint. In February of 1977, the Los Angeles Times quoted Jerry Brown saying, “If the Legislature overrules my view, or whether the people do it through an initiative, I’ll carry it out. That’s what a governor has to do.”
In August of the same year he said, “As long as it is a valid law, I will carry out my responsibility to uphold it.”
In June of this year the LA Times wrote, “As Governor and Attorney General, Jerry Brown has respected the will of the people and demonstrated the rule of law. While running for governor, Brown said he would veto a capital punishment bill if it came before him – so when Brown vetoed the bill, he simply kept his campaign promise. Brown cooperated with the Legislature when they overrode the veto and Brown vowed to defend capita1 punishment and uphold the will of the people. As Attorney General, Brown has defended hundreds of capital cases in both state and federal court. Brown argued to a federal judge that executions [should] resume in California and the federal judge recently ruled that executions will resume in California.”
Critics and supporters alike will point to his appointment of Rose Bird, among others, to the California Supreme Court as evidence to the contrary.
However, people ought to recognize after 40 years in public life, Jerry Brown is no typical person running for office.
And while it is true he is locked in a tight battle for Governor, it is also true that he could probably fight a bit harder for his convictions on this issue, just as he did on gay rights.
But is the Death Penalty Really Overwhelmingly Supported by the State ?
However, when given the choice between death and life without parole the numbers change – and drastically.
According to a 2009 poll conducted by UC Santa Cruz Professor Craig Haney, two-thirds of Californians support replacing the death penalty with life without possibility of parole, to include the requirement that the inmate work and pay restitution to the victim’s family.
Even that 66 percent number represents a drop in support. In 1989, the number was 79%.
The survey represented the first detailed look into Californians’ attitudes about the death penalty in 20 years and it follows up Professor Haney’s nearly identical surveys from 1989.
“What’s significant about the recent decline is that it occurred primarily among the strongest supporters of the death penalty,” said Professor Haney, a leading scholar on capital punishment and author of the book Death by Design. The poll revealed much greater concern about the possibility of executing innocent people: 44% expressed concern this year, compared to only 23% in 1989. In addition, the number of respondents who believe the death penalty is a deterrent to murder dropped from 74% in 1989 to only 44% today.
“There is a higher level of accurate understanding today that life in prison without the possibility of parole is the real alternative to the death penalty under California law,” said Haney, noting that no prisoner under that sentence has ever been paroled or pardoned in California.
When respondents in Professor Haney’s survey were offered an alternative to the death penalty–a sentence that guaranteed a prisoner would spend the rest of his or her life in prison and be required to work to pay restitution to the victim’s family, support for the death penalty plunged to only 26 percent. Even when work and restitution were removed, 55 percent still preferred the alternative of life in prison without parole, compared to 37 percent who preferred capital punishment (and 8 percent who said they weren’t sure).
—David M. Greenwald reporting