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California Death Penalty Once Again Thwarted by Thug Huggers

The opinions expressed by columnists are their own and do not necessarily represent the views of

On Oct. 28, 1980, Albert Greenwood Brown snatched Susan Jordan, 15, raped and strangled her to death with her own shoelace. Brown, who was on parole after raping a 14-year-old girl, then spent the night tormenting the dead girl's parents over the phone, telling them that they would never see their daughter again and where to find the girl's half-nude corpse and belongings. A jury sentenced him to death for that crime.

Last Wednesday, almost 30 years later, Brown was scheduled to be executed.

Of course, it didn't happen. Various judges intervened, the state's meager supply of lethal-injection drugs was about to expire -- and so California's death penalty is on hold until 2011.

There hasn't been an execution in California since January 2006. In February of that year, federal Judge Jeremy Fogel essentially ordered a de facto moratorium on California's three-drug lethal-injection protocol because there was "undue risk" -- not that he knew if it had ever happened -- that a condemned murderer could "suffer excessive pain when he is executed."

In April 2008, the U.S. Supreme Court ruled 7-2 that Kentucky's three-drug lethal-injection protocol is constitutional. Yet Fogel's injunction continued to prevent executions as California officials scrambled to reconfigure the lethal-injection protocol under a superior court judge's order.

No matter which course the state chooses, taxpayer-funded appellate attorneys have managed to block justice -- and on the taxpayer's dime.

Last month, Fogel issued a ruling to allow California's new lethal-injection protocol to proceed. Brown's attorneys argued that under the three-drug protocol, Brown might suffer pain after the initial injection of sodium pentothal. Ohio dealt with that argument by moving to a one-drug injection of that drug. Death penalty opponents complained that Ohio wanted to do drug testing on humans.

Likewise, Brown's attorneys protested that the new protocol was "untested." (Be it noted, there is only one way to test it.)

Fogel gave Brown the option of a single-drug option. His lawyers protested that Brown has given a too "short time frame" to decide. And they prevailed.

On Thursday, I talked to state Supreme Court Chief Justice Ron George. His court also issued a ruling that stayed Brown's execution, this one on a narrow timing issue.

George told me, "I'd say, when the authorities end up procuring the second dose of lethal drug, I don't see why we shouldn't have executions resume."

Why is it, I asked, that Ohio has managed to execute 32 people since 1999, but California has only used capital punishment 13 times since 1977? (My answer would be: the Ninth Circuit Court of Appeals.)

"We have a system that is dysfunctional," George answered. It was George who once famously said, "The leading cause of death on death row in California is old age."

Oddly, at Tuesday night's gubernatorial debate, neither Democrat Attorney General Jerry Brown nor Republican former eBay CEO Meg Whitman seemed particularly exercised about the delays.

Jerry Brown posited that the delays are "too lengthy." He then cited George's past calls to hire more personnel to handle the backlog, "because under the Constitution, these men who are condemned have a right to first-class representation." (Actually, George told me, "The operative word is effective representation, not first-class.")

Criminal Justice Legal Foundation legal director Kent Scheidegger blogged that Brown "seems to have swallowed the defense spin on the issue, hook, line, and sinker."

Whitman promised to be "a tough-on-crime governor." But she seemed most concerned about the money issues, when she said that if the state can't speed up the process, "we are going to be on the brink of building another death row facility."

This isn't an issue of prison construction costs. The anti-death penalty lobby is committed to burning through so much time and taxpayer money that voters cry uncle and give up on the death penalty because they're sick of bankrolling frivolous appeals that successfully thwart capital punishment even though the U.S. and California Supreme Courts have ruled it to be constitutional.

When they've won on the death penalty, they'll start trying to shave time from life-without-parole sentences, which they also consider to be inhumane -- on your dime as well.

The next governor needs to understand these forces and not give in to the siren song of inertia. But I don't think either Jerry Brown or Meg Whitman understands what is at stake.

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