During the last four decades, no California political issue has burned more intensely than capital punishment, but it may have ended with a whimper, rather than with a bang, last week.
Federal Judge Cormac Carney ruled that the death penalty is unconstitutional because it’s rarely used – thanks largely to ceaseless legal challenges from its opponents, one should note.
Another irony is that Jerry Brown – a lifelong foe of capital punishment – was governor when it dominated the Capitol in the 1970s, and he’s governor again as Carney’s ruling more than likely ends it.
The death penalty had overwhelming public support in the 1970s as the state Supreme Court blocked it twice and the Legislature re-enacted it twice, once over Brown’s veto.
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A 1978 ballot measure seemingly was the last word. But Chief Justice Rose Bird, who had been appointed by Brown, and other liberal justices blocked all 64 death penalty cases that reached them on automatic appeal.
Bird paid the price for her stubborn opposition in 1986, when voters, by a 2-1 rate, denied her confirmation to a new term and ousted two liberal colleagues.
It took six more years for the state’s first gas chamber execution in more than 25 years, however. And the execution of Robert Alton Harris, the killer of two 16-year-old boys, merely fueled new legal battles, with a shift of focus from the penalty itself to the execution method.
A federal court in 1994 declared the gas chamber to be unconstitutionally cruel.
State officials changed to lethal injection, which was used 11 times under three governors before a federal court ruled in 2006 that it, too, was unconstitutional.
Authorities rewrote execution protocols, but the legal sparring continued, culminating in Carney’s declaration that the “dysfunctional administration” of capital punishment has “quietly transformed” it into “one no rational jury or legislature could ever impose: life imprisonment with the remote possibility of death.”
The 748 men and women now on death row are much more likely to die of old age than be executed, but should any be put to death, he said, “they will have languished for so long that their execution will serve no retributive or deterrent purpose and will be arbitrary.”
It’s difficult to argue with that logic. But what might be done to respond to the decision, assuming it’s appealed – not at all certain given Brown’s bent – and upheld?
Clearly, polls show, support for capital punishment has waned. A 2012 ballot measure to abolish it failed, but very narrowly, and afterward, Brown said he had voted for it.
Brown and a liberal Legislature would not counter Carney’s ruling by speeding up executions, and a ballot measure to do it probably would fail.
More than likely, therefore, capital punishment is dead in California, more or less due to old age.