San Franciscans could make death penalty ruling stick

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The lethal injunction chamber at San Quentin Prison is rarely used, and it could be abolished forever.

In the wake of yesterday’s [Wed/16] judicial ruling that California’s death penalty system is unconstitutional — with federal District Judge Cormac Carney calling it arbitrary and so subject to endless delay that it “serves no penological purpose” — San Franciscans could play a key role in converting the ruling into an abolition of capital punishment.

Right now, the ruling applies only to the execution of Ernest Dewayne Jones, who was sentenced to death in 1995 for a rape and murder, and not all 748 inmates now on Death Row in California. But yesterday’s ruling would end the death penalty in California if appealed to and upheld by the SF-based Ninth Circuit Court of Appeals.

The decision about whether to file that appeal and possibly a subsequent appeal to the US Supreme Court falls to Attorney General Kamala Harris, who has maintained her opposition to capital punishment since her days as San Francisco’s district attorney, where she bravely endured lots of political heat for refusing to file capital murder charges in the death of San Francisco Police Officer Isaac Espinoza.  

San Francisco Public Defender Jeff Adachi today issued a public statement praising yesterday’s ruling and calling for Harris not to appeal it: “Today’s ruling, which found California’s death penalty unconstitutional, is a monumental victory for justice. I commend U.S. District Judge Cormac Carney for his courage and wisdom. Not only is the death penalty arbitrarily imposed, as the judge noted, its history is fraught with racial bias and haunted by the hundreds of death row inmates who were later exonerated. I am hopeful that California Attorney General Kamala Harris will choose not to appeal this decision.” 

Harris spokesperson David Beltran told the Guardian that she hasn’t yet made a decision whether to appeal the case: “We are reviewing the ruling.”

Yet former Los Angeles District Attorney Gil Garcetti, who worked with SF-based Death Penalty Focus on the 2012 initiative campaign to repeal the death penalty (losing by less than 4 percentage points), told the Guardian that Harris has a tough choice to make.

“It’s an interesting decision. If the Attorney General doesn’t appeal it, then it applies just to this case, period,” Garcetti told us.

Although appeals in other cases could cite the logic of yesterday’s ruling, it has no precedent value unless affirmed by the Ninth Circuit. And Garcetti called Carney’s ruling “a pretty persuasive decision” that could be easily be affirmed, depending on which judges are assigned to the case. If so, that ruling would end the death penalty in California, just as 17 other states have already done.   

“The more interesting question is whether she would then appeal that ruling [to the US Supreme Court],” Garcetti said.

California voters have affirmed their support for the death penalty three times at the ballot, but those results and public opinion polling show that support for executions has been steadily eroding, in much the same way that generational change has led to overturning bans on same-sex marriage across the country.

Garcetti said he regularly speaks publicly about capital punishment, often to very conservative groups, and he said that the arguments against it have become so strong — including its high cost, racial and class bias, and lack of deterrent effect — that “over 95 percent of [death penalty supporters] change their opinions by the end of my talks.”

As for why the 2012 initiative fell about 250,000 votes short of success, Garcetti said, “We simply ran out of money to get the facts out. Once people hear the facts, it wins them over.”

Carney’s ruling reinforced many of the arguments that opponents have been made against the death penalty, noting that federal guarantees of due process create such long delays that a death sentence has become something “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”

Aside from this ruling, California is also currently under a federal moratorium on executing prisoners until it can reform its lethal injection procedures, which a federal judge has said now amounts to cruel and unusual punishment.

“Justice requires that we end this charade once and for all,” Death Penalty Focus Executive Director Matt Cherry said in a prepared statement. “It’s time to replace California’s broken death penalty with life in prison without the possibility of parole. That’s the best way to ensure that convicted killers remain behind bars until they die, without wasting tens of millions of tax dollars every year on needless appeals. That’s justice that works, for everyone.”