In a predictable but no less galling move, death penalty opponents are seizing on the current state fiscal crisis as the latest reason to end the death penalty in California. Having failed to convince the U.S. Supreme Court that the death penalty is unconstitutional, failed to convince voters it is immoral, failed to stop executions with attacks on lethal injections, opponents are now trying a different track. State Senator Loni Hancock has introduced a bill advancing the latest argument by opponents who steadfastly cling to only one principle – preventing execution by any means necessary.
Citing the death penalty’s financial cost to try to stop it is, frankly, an offensive argument. It is precisely penalty opponents in the Legislature and on the federal bench who have caused the cost to climb because of their deliberate – and to be blunt – dishonest efforts to thwart executions.
On average, five years pass before appellate counsel is appointed to death row inmates, and at least another five years pass before their first appeal is heard. These delays happen because death penalty opponents in the Legislature refuse to authorize market-rate pay for the attorneys, thereby creating a shortage of appellate lawyers for these cases. The Legislature also refuses to consider having California Appellate Courts hear the appeals, ensuring a lengthy wait before the backlogged California Supreme Court hears the appeal.
There is also the duplicity of the penalty’s fervent opponents who populate the federal bench in California and on the 9th Circuit. Five years have passed since Federal Judge Jeremy Fogel halted executions. Fogel issued a stay for Michael Morales because he objected to the qualifications of the staff administering injections. His indefinite hold on executions remains while he continues to mull whether the newly constructed execution chamber and new injection procedures meet his approval. Perhaps Senator Hancock could let us know the costs that have accrued while Judge Fogel takes his time to make a decision.
Finally, we have the 9th Circuit, a collection of judges who’ve repeatedly attempted to thwart executions in California. Who can forget the farce that was the execution of Robert Alton Harris, the first inmate executed since resumption of the death penalty? Four separate Justices of the 9th Circuit issued last-minute stays, each sequentially overturned by the U.S. Supreme Court, which was then forced to issue an unprecedented order that the 9th Circuit have no further involvement in the case. Perhaps Senator Hancock could tally the costs associated with that case, too.
More recent evidence of the depths to which the 9th Circuit will sink to block executions can be found in the 2010 U.S. Supreme Court decision, Wong v. Belmontes. The U.S. Supreme Court, for a third time, overturned a 9th Circuit reversal of the death penalty for Belmontes. The unanimous Supreme Court pointedly called out the 9th Circuit for its latest decision, which the Supreme Court wrote, had suddenly “changed its view of the evidence.” Perhaps Senator Hancock can let us know the cost of the bogus appeals in the Belmontes case as well.
We refuse to stand by silently when, as outlined above, death penalty opponents deliberately drive up the cost of implementing the death penalty, and then cite cost as a reason to stop executions. There is no doubt that cost and delay would no longer be an issue if we could substitute the Justices of the 5th Federal Circuit Court of Appeals (Louisiana, Mississippi, Texas) for the 9th Circuit and have a legislature that would adequately fund the appeals process.
