Reality Check: Future of California Death Penalty Unclear

In California, the capital punishment system has prompted decades of debate, from the costliness of the process to the constitutionality of the state’s three-drug lethal injection method.

Yet despite all the procedural hiccups and complex questions, the subject now before both advocates and opponents is much simpler: Will California ever execute another prisoner?

"I would say that on the probability of the evidence, it is as likely that California has seen its last execution in the foreseeable future, as it is that executions will resume," said Professor Franklin Zimring, a death penalty and criminal justice expert who currently serves as a William C. Simon Professor of Law at Berkeley Law School.

The topic is timely because California recently announced that it would no longer defend the three-drug method in court, ending a legal saga that dates back seven years.

Professor Zimring observed that if California were really determined to continue its death penalty system, defending the three-drug protocol in state court, long after the Supreme Court had approved the method on the federal level, was an odd choice.

"The real question," posed Zimring, "is what took them so long?"

The state of California, rather than defend or find the shortest distance between two points to resume executions, instead pursued a [lengthy] legal battle.”

Texas, by comparison, Zimring said, "went to what I think is a one-drug cocktail, very quickly. California fought kicking and screaming through this process."

Texas perhaps makes the best comparison because of its large population (second only to California) and relative proficiency in performing executions.

According to the Death Penalty Information Center, Texas has executed 500 people since 1976. California, by contrast, has performed 13 executions in that time frame.

In a telling statistic, Zimring says that if you applied the Texas execution rate to California’s death row inmate population, the golden state would experience somewhere between 65 and 70 executions a year.

"Oh my, it would create a civil war in California," Zimring opined, alluding to those numbers. "But, that’s why we don’t have it."

The professor highlights the comparison with Texas because he says it demonstrates both why California’s execution rate has been so much lower, comparatively, and why resuming capital punishment again in California could prove a challenge.

Zimring points to a number of conditions working against a continuation of capital punishment in this state:

  • Governor Brown’s vehement opposition to California’s death penalty system
  • The state’s years-long defense of a three-drug protocol that could have been replaced
  • A public that’s losing enthusiasm for keeping capital punishment, as the results of last year’s Prop 34 ballot measure might suggest (the voting total was 52 to 48 percent in favor of keeping the death penalty)
  • And a legal system aimed at providing death row inmates with high-quality, expensive legal aid if they can’t afford it

"These things that look like accidents, and very expensive accidents- the fact that we pay for good lawyers [on behalf of capital defendants] that can fight the system to the draw - maybe that isn’t as much of an accident as it looks like," Zimring said.

Richard Dieter, executive director of the Death Penalty Information Center, thinks the death penalty will eventually return to California.

"They came close to having some executions in California a year or two ago,” said Dieter. “The appeals are not endless, and the process is certainly slow but it's not interminable."

So what would the process look like for resuming capital punishment?

First, the state would have to outline new regulations for a single-drug procedure. According to California Department of Corrections and Rehabilitation Spokesperson Terry Thornton, the CDCR has no timetable for when those regulations will be released.

Then once the regulations are issued, there are a series of steps that must be completed that could take years to resolve.

According to the ACLU of Northern California, the state must hold a public comment period within 60 days of releasing the new protocol, the state must then review and respond to each comment, write a modified set of regulations based on the comments/concerns, gain approval from the Office of Administrative Law and if that happens, and only if that happens, the legal challenges can ensue.

How long would that timeline be?

Dieter said the Chief Justice of the California Supreme Court estimates that executions are probably about three years away.

"This seems like a reasonable estimate," Dieter said, "given that litigation under the present protocol has taken 7 years."

Zimring contests the notion California will see executions any time soon.

"I would not make that assumption, because all of the conditions that led to the particular stalemate that we’ve been living with, or depending on, are still there," he said.

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