NEWS: UC Hastings Criminal Law Expert Makes Strategic Move On Death Penalty Policy
Aug 08, 2014

SAN FRANCISCO (Daily Journal) - A law professor here has collected 2,000 signatures on a petition calling for Gov. Jerry Brown and Attorney General Kamala D. Harris not to appeal a federal judge's July 16 ruling that California's death penalty law is unconstitutionally flawed.

U.S. District Judge Cormac J. Carney of Santa Ana held that the glacial pace of executions in the state violates the Eighth Amendment's ban on cruel and unusual punishment. Jones v. Chappell, 09-02158 (C.D. Cal., filed March 27, 2009).

Only 13 of the 749 people on death row have been executed since California reinstated capital punishment in 1978.

Hadar Aviram, a criminal justice authority at UC Hastings College of the Law, said several scenarios could flow from Harris' decision on an appeal. Though both Brown and Harris are longtime foes of the death penalty, neither has said to date what they will do.

"If the AG does not heed our call and appeals," Aviram said, "the best case would be that the 9th Circuit affirms Judge Carney so that his decision would apply to the entire state. Then the AG could refrain from appealing to the U.S. Supreme Court so the circuit decision would stand."

Aviram is the author of a forthcoming book, "Cheap on Crime," that in part details what she calls a new death penalty abolition movement in the wake of the financial crisis. By her count, six states have abandoned capital punishment since 2007.

"It's more realistic to think that the 9th Circuit will not affirm or that the AG will appeal all the way to the Supreme Court, in which case Carney will be overruled," Aviram said. "I can write you Justice [Antonin] Scalia's opinion right now."

Even Justice Anthony M. Kennedy, who has voted to limit the death penalty in some cases, "isn't likely to be sympathetic to the argument that we're not killing people quickly enough," Aviram said.

A Harris spokesman, Nick Pacilio, said Carney's opinion remains under review. As for Aviram's petition, "The attorney general values input from the public," Pacilio said.

Absent a 9th Circuit appeal, Carney's decision becomes final Aug. 25. Though it technically applies only to death row inmate Ernest Dewayne Jones, Carney's reasoning will be used at trials and in habeas appeals at the state and federal levels, said veteran death penalty appellate litigator Cliff Gardner of Berkeley.

"People are rushing to amend their federal petitions up and down the state," Gardner said.

One Orange County Superior Court judge, Thomas M. Goethals, has announced he will not follow Carney and rule out a death sentence as he rejected a defense request to immediately send mass killer Scott Eugene Dekraai to prison for life without parole.

Goethals said he assumed Harris will appeal. He left the door open for Dekraai's defense to renew its request if Harris does not appeal or a higher court affirms Carney.

Gardner said Carney has advanced a discussion begun by former Chief Justice Ronald M. George, who pronounced capital punishment "dysfunctional" in the state in 2008.

"Judge Carney now has said it hasn't been fixed," Gardner added. He doubted whether Aviram's petition will directly impact Harris. "But it gets people talking, and that's a worthwhile endeavor," he said. "For the attorney general, it's more a political than a legal decision."

Though it's true that public opinion has shifted from strong to moderate support for capital punishment, "Not many politicians are surfing on that tide. It would be a gutsy move," Gardner said.

A prominent conservative lawyer contended that Harris must appeal. "It should be a no-brainer," said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. "The state Constitution holds that it is the duty of the attorney general to see that the laws are enforced. There are loads of grounds for attacking Judge Carney's opinion. There is no good-faith argument for not appealing. And [Harris] did promise that she would enforce the death penalty if elected."

A.J. Kutchins of Berkeley, a veteran appellate litigator, said politics will likely guide Harris' decision. "The reality is that we've had a succession of AGs who are ambivalent at best about the death penalty, who would be considered progressive, but who in their own political interest are reluctant to interfere with the more hawkish tendencies of their own criminal justice staff," he said.

"And it is no mystery that an ambitious politician is going to go to great lengths not to appear soft on crime."

If Harris declines to appeal, Aviram said, "it would be a fairly strong symbolic proclamation," on par with the one she and Brown made in refusing to defend Proposition 8, the gay marriage ban.

"Prop. 8 was a voter initiative, and so was the law that reinstated the death penalty in 1978," Aviram said. "The path could be long or short, but following Judge Carney's opinion, logic requires that the death penalty ends."

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