California's death penalty has been in limbo since 2006, when a federal judge stayed the execution of Michael Morales, who was sentenced to death for the brutal 1981 murder and rape of 17-year-old Terri Winchell. The judge was fearful lest the state's three-drug lethal injection protocol would cause Morales undue pain. Since then, a number of states have switched to a one-drug protocol. Why hasn't California? The answer could be that Gov. Jerry Brown and Attorney General Kamala Harris don't want the death penalty to work.
Brown and Harris are personally opposed to the death penalty, but when they campaigned for office in 2010, both pledged to carry out the law. They're not exactly knocking themselves out to do so.
In 2009, Ohio adopted a one-drug protocol for executions. By administering a lethal dose of barbiturates, Ohio made it harder for frivolous appeals to keep the state from enforcing its laws. Several states followed suit, including Washington. Washington is important because the U.S. Court of Appeals for the 9th Circuit refused to stay a single-drug execution there in 2010.
California officials still are sticking with a three-drug protocol mired in legal challenges. Sacramento has been so ineffective that Los Angeles District Attorney Steve Cooley asked a Los Angeles Superior Court judge to make the state order the single-drug executions of multiple murderers Tiequon Cox and Mitchell Sims.
LA County Deputy District Attorney Michele Hanisee told me that Cooley acted because other states have been "rapidly moving forward with executions while our Department of Corrections sits on its hands and does nothing."
Believe it or not, a California deputy attorney general actually showed up in court to fight Cooley's effort — in the name of Brown's Department of Corrections. The California Department of Justice argued that Cooley's gambit, if successful, would put Corrections in an "impossible position" because of Marin Superior Court Judge Faye D'Opal's injunction against executions pending new regulations. Hanisee counters that D'Opal doesn't have the authority to stop all executions. Besides, D'Opal faulted the state's rejection of a one-drug protocol.
"The murderer and the state's chief law enforcement officer were both on the same side," observed a disgusted Michael Rushford, president of the tough-on-crime Criminal Justice Legal Foundation.
When I asked Corrections for an explanation, a spokeswoman sent me a legal brief, signed by Harris, which said: "The state has expended significant time and resources developing a three-drug lethal injection protocol for carrying out the death penalty, and this protocol conforms to a procedure that has been upheld by the U.S. Supreme Court."
Translation: Unlike Washington state, California is sticking with the method least likely to carry out the law.
In a later brief, Harris wrote that under Brown's guidance, Corrections "has begun the process of considering alternative regulatory protocols, including a one-drug protocol, for carrying out the death penalty."
San Mateo County District Attorney Stephen Wagstaffe apparently doesn't see a reason to wait. He also has asked a superior court to order a single-drug execution, of convicted killer Robert Fairbank. "At present," the San Mateo brief argues, "the laws of this state are not being enforced by the agency designated to do so."
Because death penalty opponents have been able to use their clout to choke supply, California's supply of the lethal injection pharmaceutical is set to expire in 2014, and the state cannot get any more. Still, the state has stood by the tied-up-in-court three-drug protocol.
Death penalty foes have succeeded in placing a measure on the November ballot to repeal California's death penalty. As it is now, the more than 720 inmates on California's death row are likelier to die from natural causes or suicide than they are from lethal injection. Advocates then can point to the de facto death penalty moratorium and argue that capital punishment is an expensive failure.
Their spokesmen can point to gestures Brown and Harris have made to uphold the law, but Rushford believes that the governor and attorney general are deliberately failing to carry out California's death penalty law. Brown "doesn't want to enforce the death penalty," Rushford said. "That's what I believe, and everything he's done proves it."