Defense lawyers and prosecutors agreed Wednesday that California’s death penalty system was deeply troubled but split over the causes and solutions.

During a hearing in Los Angeles before a state reform commission, prosecutors called for quicker appeals and amending the state Constitution to permit the California state Supreme Court to transfer some of the initial review of cases to state appeals courts.

Defense attorneys opposed the proposal, saying it would make the process more cumbersome.

Instead, they asked that the state pare the list of crimes that qualify for the death penalty and provide more funding for lawyers who represent accused killers.

But John Van de Kamp, chairman of the California Commission on the Fair Administration of Justice who previously served as Los Angeles County district attorney and state attorney general, said the prospects of increased state funding were bleak.

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The Nebraska Supreme Court ruled Friday that electrocution is cruel and unusual punishment, outlawing the electric chair in the only state that still used it as its sole means of execution.

In the landmark ruling, the court said the state Legislature may vote to have a death penalty, just not one that offends rights under the state constitution. The evidence shows that electrocution inflicts “intense pain and agonizing suffering,” it said.

“Condemned prisoners must not be tortured to death, regardless of their crimes,” Judge William Connolly wrote in the 6-1 opinion.

“Contrary to the State’s argument, there is abundant evidence that prisoners sometimes will retain enough brain functioning to consciously suffer the torture high voltage electric current inflicts on a human body,” Connolly wrote.

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Leading judges and scholars provided a grim verdict Thursday on how well the California justice system is carrying out the ultimate punishment as a state commission began an unprecedented review of the death penalty.

From California Chief Justice Ronald George, a death penalty supporter, to law professors who oppose capital punishment, the theme was consistent: The state’s death penalty system is a mess.

George and six other witnesses, including a federal appeals court judge and Florida’s former chief justice, named a string of reforms to improve death penalty justice in California, where there are now nearly 670 inmates on death row who typically spend decades awaiting execution.

But for the most part, many of the proposals called for spending more money – just as Gov. Arnold Schwarzenegger elsewhere in the building was proposing dramatic cuts in education and prisons to cope with a $14 billion budget shortfall.

“The current system is not functioning effectively,” George told the California Commission on the Fair Administration of Justice. “We’re at a point now where choices must be made.”

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Stephen Dear has spent the past 10 years waging an uphill battle to abolish the death penalty in the American South. He’s had virtually no help from the region’s powerful evangelical clergy.

But unlike in years past, Dear has new confidence that within six months, he can round up 100 conservative clergy in North Carolina alone to sign an open letter denouncing the current system of capital punishment.

“Even five years ago, I wouldn’t have thought of doing this,” said Dear, executive director of People of Faith Against the Death Penalty, based in Carrboro, N.C. “It’s easier now to be an abolitionist church leader who opposes the death penalty on biblical grounds and to be accepted for that.”

These are hopeful times for death penalty opponents. On Monday (Jan. 7), the U.S. Supreme Court heard arguments on whether death by lethal injection violates the constitutional ban on cruel and unusual punishment. New Jersey recently became the 14th state to ban executions.

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With conservative justices questioning their motives and liberal justices questioning their evidence, opponents of the American manner of capital punishment made little headway Monday in their effort to persuade the Supreme Court that the Constitution requires states to change the way they carry out executions by lethal injection.

Donald B. Verrilli Jr., the lawyer for two inmates on Kentucky’s death row who are facing execution by the commonly used three-chemical protocol, conceded that theoretically his clients would have no case if the first drug, a barbiturate used for anesthesia, could be guaranteed to work perfectly by inducing deep unconsciousness.

But as a practical matter, Mr. Verrilli went on to say, systemic flaws in Kentucky’s procedures mean that there can be no such guarantee, and the state’s refusal to take reasonable steps to avoid the foreseeable risk of “torturous, excruciating pain” makes its use of the three-drug procedure unconstitutional.

It was here that Mr. Verrilli met resistance from both sides of the court, and the closely watched case appeared to founder in this gap between theory and practice.

Of the 36 states with the death penalty, all but Nebraska, which still uses only the electric chair, specify the same three-drug sequence for lethal injections.

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The Supreme Court will hear arguments Monday on whether a common lethal injection method is unconstitutional. The case, which has prompted a temporary halt in executions, comes at a crucial time for capital punishment nationwide.
The dispute from Kentucky tests standards for when a method of execution is cruel and unusual punishment under the Eighth Amendment. Although the basic constitutionality of capital punishment is not at issue, the case has galvanized larger questions about the death penalty.

Executions in 2007 dropped to a 13-year low of 42, largely because states began putting executions on hold soon after the justices announced they would hear the Kentucky case. Thirty-five of the 36 states that permit capital punishment carry out executions with a lethal drug combination.

In 2007, 110 defendants were sentenced to die, the lowest number since the death penalty was reinstated in 1976, according to the Death Penalty Information Center. At the end of 2007, New Jersey became the first state to pass a law abolishing the death penalty in more than 40 years

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The number of executions in the United States has declined to a 13-year low, according to a study by a research group that has been critical of the way the death penalty is applied.

The 42 executions recorded in 2007 are the fewest since 1994, when there were 31, according to the Death Penalty Information Center, which compiled the report and released it Tuesday. In 1999, there were 98 executions, the highest number since capital punishment was reinstated in 1976.

The group attributes the decline to numerous factors, including public sentiment over innocence and fairness, but most notably the decision by the Supreme Court on Sept. 25 to hear a challenge to the constitutionality of lethal injection, causing a de facto moratorium on executions.

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New Jersey will become the first state in four decades to abolish the death penalty under a measure lawmakers approved Thursday and the governor intends to sign within days.

Assembly members voted 44-36 to replace the death sentence with life in prison without parole. The state Senate approved the bill Monday, and Gov. Jon S. Corzine, a Democrat, has said he will sign the bill within a week.

A special state commission found in January that the death penalty was a more expensive sentence than life in prison, hasn’t deterred murder and risks killing an innocent person.

“We would be better served as a society by having a clear and certain outcome for individuals that carry out heinous crimes,” Corzine said. “That’s what I think we’re doing, making certain that individuals would be imprisoned without any possibility of parole.”

The measure would spare eight men on the state’s death row, including Jesse Timmendequas, a sex offender convicted of murdering 7-year-old Megan Kanka in 1994. That case sparked a Megan’s Law, which requires law enforcement agencies to notify the public about convicted sex offenders living in their communities.

Marilyn Flax, whose husband Irving was kidnapped and murdered in 1989 by death row inmate John Martini Sr., said she seethes at the thought Martini will remain alive “while my innocent, loving, adoring husband lies in a grave.”

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New Jersey’s legislature may soon be the first in the country to repeal a death penalty law. While courts in other states have struck death penalty statutes, this would be the first time a legislative body eliminated executions since the Supreme Court reinstated them 31 years ago.

New Jersey has the death penalty, but the state hasn’t actually executed anyone since 1963.

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Here are Two:

To the Editor:

Statistical analysis may sound scientific, but people don’t behave according to economists’ mathematical formulas. If the death penalty deterred killers, we would be able to find at least one, in a state without the death penalty, who expected to be caught and imprisoned for life but committed murder anyway. No rational person would make that exchange.

Economists will keep debating the numbers, but they should support public policy that sends clear, rational messages. Here’s one: Killing people is wrong ”” whether they’re walking in a dark alley or strapped to a gurney.

Howard Tomb
Brooklyn, Nov. 18, 2007

Ӣ

To the Editor:

Even if we have no clue whether or not the death penalty actually deters, crime prevention is only one of a handful of reasons that a jurisdiction might consider when choosing to mete out the ultimate punishment.

Retribution and the community’s expression of moral outrage are at least as important. Failure to deter doesn’t inevitably drive us to the logical conclusion to execute the death penalty itself.

Jonathan Lubin
New Haven, Nov. 18, 2007
The writer is a student at Yale Law School.

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The appellants are fighting not for their lives but for a more efficient cocktail of deadly drugs. In the current protocol, the first drug is intended to produce unconsciousness, the second to paralyze the muscles and the third to stop the heart. In some cases, the appellants say, the first drug fails, leaving prisoners awake but unable to move or speak as they die of cardiac arrest.

It is the inverse of the guillotine. Rather than painless for the convict but gruesome for witnesses, the three-drug cocktail may be easy on witnesses but brutal for the victim ”” an inert body suffering unspeakable pain.

The Supreme Court may end up banning the cocktail, but such a ruling would only inspire state officials to mix up a new set of drugs. The new protocol may at first appear to work smoothly, but decades of executions have taught us this: Technical systems are prone to failure, and human bodies are irreducibly complex and idiosyncratic. Whatever the technique, executions will go horrifyingly wrong.

Pain is often a necessary part of death. That fact seems unfortunate yet unremarkable in cases of natural death, but when the killing is done deliberately, on our behalf, we keep seeking ways to spare ourselves the dreadful truth.

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Moments before a Mississippi prisoner was scheduled to die by lethal injection, the Supreme Court granted him a stay of execution on Tuesday evening and thus gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring.

There were two dissenters, Justices Antonin Scalia and Samuel A. Alito Jr., but neither they nor the majority gave reasons for their positions. Because only five votes are required for a stay of execution, it is not clear whether all the remaining seven justices supported it.

The stay will remain in effect until the full court reviews an appeal filed Monday by lawyers for the inmate, Earl W. Berry, who is on death row for killing a woman 20 years ago.

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The United Methodist Church here is the kind of politically active place where parishioners take to the pulpit to discuss poverty in El Salvador and refugees living in Meriden. But few issues engage its passions as much as the death penalty.

The last three pastors were opponents of capital punishment. Church-sponsored adult education classes promote the idea of “restorative justice,” advocating rehabilitation over punishment. Two years ago, congregants attended midnight vigils outside the prison where Connecticut executed a prisoner for the first time in 45 years.

So it might have been expected that United Methodist congregants would speak out forcefully when a brutal triple murder here in July led to tough new policies against violent criminals across the state and a pledge from prosecutors to seek capital punishment against the defendants.

But the congregation has been largely quiet, not out of indifference, but anguish: the victims were popular and active members of the church ”” Jennifer Hawke-Petit, 48, and her two daughters, Hayley, 17, and Michaela, 11. On July 23, two men broke into the family’s home. Mrs. Hawke-Petit was strangled and her daughters died in a fire that the police say was set by the intruders.

The killings have not just stunned the congregation, they have spurred quiet debate about how it should respond to the crime and whether it should publicly oppose the punishment that may follow. It has also caused a few to reassess how they feel about the punishment.

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An eleventh-hour reprieve in Nevada last night for condemned murderer William Patrick Castillo marked the latest victory for opponents of the death penalty who do not regard lethal injection as the humane method of execution that its supporters say it is.

The Supreme Court is scheduled to hear oral arguments on the subject in the coming months, and death penalty opponents plan to argue that the three-chemical cocktail used by most of the 37 states that carry out lethal injection immobilizes the condemned and hides the pain they experience before they die. They say the process violates the Eighth Amendment’s ban against cruel and unusual punishment.

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The federal appeals court in San Francisco yesterday upheld a death sentence from a jury that had consulted the Bible’s teachings on capital punishment.

In a second decision on the role of religion in the criminal justice system, the same court ruled Friday that requiring a former prisoner on parole to attend meetings of Alcoholics Anonymous violated the First Amendment’s ban on government establishment of religion.

In the capital case, the United States Court of Appeals for the Ninth Circuit split 9 to 6 on the question of whether notes including Bible verses prepared by the jury’s foreman and used during sentencing deliberations required reversal of the death sentence imposed on Stevie L. Fields in 1979.

Mr. Fields, on parole after serving time for manslaughter, committed a series of rapes, kidnappings and robberies, and murdered Rosemary Cobbs, a student librarian at the University of Southern California.

After the jury convicted Mr. Fields and while it was deliberating his sentence, the foreman, Rodney White, conducted outside research, consulting several reference works and preparing a list of pros and cons on the death penalty that he shared with fellow jurors. On the pro side, he quoted passages from the Bible, including this one from Exodus: “He that smiteth a man, so that he dies, shall surely be put to death.”

Judge Pamela Ann Rymer, writing for the majority, said there was no need to decide whether there had been juror misconduct, “because even assuming there was, we are persuaded that White’s notes had no substantial and injurious effect or influence.”

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No modern debate in America is as muddled by facts as that of the death penalty.

For a long time, the contentious issue of deterrence””whether the threat of capital punishment prevented homicides””was at the center of the debate, serving as a core justification for proponents. Meanwhile, the opposition cited a mounting body of evidence that debunked the claim.

New data this week is not likely to do much to clear things up. A poll from the Death Penalty Information Center, a clearinghouse for data on executions and public opinion on capital punishment, found that only 38 percent of respondents believed that the death penalty deters would-be murderers. The poll, conducted in March, surveyed 1,000 adults and has a margin of error of 3.1 percentage points.

Meanwhile, a widely discussed Associated Press article on Monday drew attention to a series of published studies by economists that report statistical evidence in favor of deterrence.

“I don’t think we’re close” to a consensus, said DPIC Executive Director Richard Dieter. “I’ve been reading the studies for years, and they go both ways. They’re getting to a high level of expertise in terms of criticizing one other.”

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