PENALTY

In good part because of this failure to act, the then chief justice of
the California Supreme Court and other death penalty supporters
declared that there would never be the political will to change the
death penalty law and that the system was broken and unfixable.
In 2005, in the court case Morales v. Cullen, a death row inmate challenged
California’s lethal injection procedure in federal court as cruel
and unusual punishment prohibited by the Eighth Amendment to
the US Constitution. Governor Arnold Schwarzenegger responded
by agreeing to overhaul the state’s lethal injection procedure. In 2006,
in Pacific News Service v. Cullen, an inmate challenged the use of a
paralytic drug during lethal injection, arguing that it violates the First
Amendment rights of the press and the public by preventing witnesses
from seeing what actually occurs during an execution. As a result of
these legal cases, and because of a national shortage of lethal injection
drugs, all of California’s scheduled executions have been placed on
indefinite hold. The last execution in California occurred in 2006.
“SOMEONE WHO’S VICTIM IS WHITE IS THREE
TIMES MORE LIKELY TO BE SENTENCED
TO DEATH THAN SOMEONE WHOSE VICTIM
IS AFRICAN AMERICAN.” —Gil Garcetti
In 2007, a state court ordered the California Department of Corrections
and Rehabilitation (CDCR), the agency legally responsible
for carrying out executions, to adopt a new lethal injection protocol
while allowing for public comment and participation. A challenge to
the CDCR’s new protocol was advanced in 2010 based on state law
in Sims v. California Department of Corrections and Rehabilitation. In that
case, the plaintiff alleged that the CDCR violated the Administrative
Procedures Act in both the process of adopting the new regulations
and their substance. In May 2013, the plaintiff won the case, and the
court found the state’s lethal injection protocol was invalid. Since
then, California has had no lethal injection protocol. If and when the
state issues a new protocol, it must follow the strict guidelines of the
Administrative Procedures Act and start the process of approval over
again. More legal challenges to any new protocol are a certainty.
In addition to the legal challenges, the CDCR’s supply of sodium
thiopental, the lethal injection drug required under the regulations,
has expired. The drug is no longer legally available in the United
States and may not be imported under federal law. Thus, there is no
legal source of the drug. Pentobarbital, another lethal injection drug
used by some states, is also in short supply as the European manufacturer
has cut off sales to US prisons.
REPLACING THE DEATH PENALTY WITH
LIFE IN PRISON
In California, replacing the death penalty with life in prison without
the possibility of parole can only be accomplished through a
ballot initiative, since that is how the death penalty law was enacted.
In 1978, 70 per cent of California voters passed the Briggs initiative,
establishing the death penalty and specifying the criteria for eligibility.
Given the current status of the death penalty in California
and the general movement away from it across the nation, the goal
of bringing a repeal initiative to the voters, while it may be viewed
by some as audacious, is, at least in California, within reach.
California sentences more people to death than any other state. As
of this writing, it has nearly 750 prisoners on death row. California
led the country with 24 death sentences in 2013, 13 of them coming
from just two southern counties. While more than 800 people have
been sentenced to death in California since 1978, only 13 executions
have been performed. Of the people sentenced to death in California
in the last 30 years, only 1 per cent have been executed. Most death
row inmates die of natural causes.
On a national level, the United States continues to move further away
from the death penalty. Death sentences and executions are down in
most states, and reported public support for the death penalty has
declined significantly since the mid-1980s. California is not immune
from this trend. An April 2011 poll by David Binder Research found
that 63 per cent of California voters, across all parties and counties,
support the governor converting all current death sentences to life in
prison without possibility of parole. More Californians are realizing
that the death penalty does not achieve swift and certain justice for
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