News Column

Obstacles to Calif. Death Penalty Fall Away

Jan. 24, 2013
death chamber

When Arizona prison officials injected condemned rapist and murderer Richard Stokley with a single, fatal drug dose last month, it marked the state's sixth execution of the year in the nation's second busiest death chamber.

Now that California voters in November narrowly preserved the death penalty, Arizona's path could foreshadow the future for this state, where not a single one of the 729 death row inmates have marched to execution in seven years.

As in California, interminable legal tangles once shut down Arizona's death penalty system as the state executed only one inmate, who volunteered to die, from 2001 to 2010. But Arizona emerged from numerous court battles that removed all of the legal roadblocks that remain in California.

The result has been 11 executions since October 2010, nearly the number California has carried out since it restored the death penalty in 1978. Significantly, the 9th U.S. Circuit Court of Appeals, often the last word for death penalty appeals in the Western states, has not intervened.

Now, legal challenges holding up California's executions are expected to resume this year.

"I do think eventually the cases all come to an end," said Dale Baich, who heads a unit representing Arizona death row inmates. "But (in California) it might be later than sooner."

In fact, the timetable may still be measured in years, not months. Chief Justice Tani Cantil-Sakauye in December told reporters it could take three years for executions to resume, particularly because of the lingering legal cloud over the state's lethal injection procedures.

At least 14 inmates have exhausted all of their legal appeals and would be eligible for immediate execution if California resolves the broader legal challenges over the death penalty. Those include Bay Area condemned killers Harvey Heishman (Alameda County), Robert Fairbank (San Mateo County) and Royal Hayes (Santa Cruz). Several more are close to their last chance in the courts, as the 9th Circuit, which used to overturn death sentences with regularity, has after recent U.S. Supreme Court rulings made it tougher to tamper with death judgments.

But a number of legal factors must be resolved before California can escort those inmates into San Quentin's new lethal injection chamber. These include:

--The ongoing fight over the state's current three-drug execution method. A Marin County judge last year blocked California from using the method, finding the state did not follow administrative rules in adopting new prison procedures. A state appeals court is now considering Attorney General Kamala Harris' appeal, with arguments expected by this summer.

--Once the state court case is resolved, a San Francisco federal judge will reopen the original legal challenge to lethal injection that first put executions on hold.

In addition, Gov. Jerry Brown's administration is developing a single-drug execution method, which has removed legal obstacles in Arizona, Ohio, Washington and other states. But even that switch would have its round of administrative hearings and federal court review.

--San Francisco U.S. District Judge Thelton Henderson is expected to rule any time on a sweeping challenge to California's death penalty law. The case rests on evidence, gleaned from more than 20,000 homicide cases, that the death penalty statute is so overbroad that virtually any first-degree murder has been eligible, making it unconstitutional under Supreme Court precedent that requires states to adopt narrower death penalty laws.

Legal experts say Arizona, which has 128 death row inmates, wiped away all of these arguments. Kent Cattani, head of death penalty appeals in the Arizona attorney general's office, notes that Arizona had it easier than California because prison officials could switch to the single-drug option with a stroke of a pen, rather than going through California's lengthy administrative process.

But, he adds, if California resolves the lethal injection issue, it appears the 9th Circuit's decisions allowing Arizona executions to proceed would also apply in California.

Death penalty opponents, however, are not conceding California will become the next Arizona. Natasha Minsker, campaign manager for Proposition 34, which sought to repeal the death penalty, promises a return to the voters, although it may be a few years.

And Michael Laurence, head of the California agency that represents death row inmates, considers all of the roadblocks insurmountable. "We're stuck with this dysfunctional system."

Prosecutors and death penalty supporters disagree. Senior Assistant Attorney General Ronald Matthias, who heads the state's death penalty unit, said "there is no significant difference between Arizona and California" other than that Arizona has an approved execution method.

Death penalty advocates such as Kent Scheidegger, legal director for the Criminal Justice Legal Foundation, say that it should not take much longer for California to fix that problem.

Barring a political shift that abolishes California's death penalty, most experts say it's just a matter of when, not if, San Quentin's death chamber reopens.

"At some point,'' said Elisabeth Semel, head of UC Berkeley law school's death penalty clinic, "if all of those (legal challenges) fail, we have to face the prospect of executions."



Source: (c)2013 San Jose Mercury News (San Jose, Calif.) Distributed by MCT Information Services


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