California Only Needs An Execution Protocol To Carry Out The Death Penalty

By Michele Hanisee

The world contains extremely dangerous and evil people who cannot be deterred by threat of incarceration.  I’m not talking about the average gang murder or robbery gone bad.  I am talking about the people who rape infants to death, who kidnap, torture, rape and murder children, who target police officers in the line of duty, who kill not just one, but a half dozen or dozen or more innocent victims in serial and mass murders.  These people are the reason why California still needs a death penalty.

If the punishment for one murder is life in prison, how do you punish someone for three murders or five murders?  How do you deter a prisoner serving a life sentence from killing a fellow inmate or guard if there is no additional penalty?  How can no-additional-punishment for additional murders be justice for victims?

You may be wondering what happened to California’s death penalty.  Seventeen of the 750 inmates on death row have completed all their appeals and are eligible to be executed.  So what’s the problem?   The problem is that the state does not have an execution protocol.  The California Department of Corrections and Rehabilitation (CDCR) has not bothered to enact a new regulation so that they can resume executions after the last protocol was invalidated by a state court judge.

Despite the 2014 vote by a majority of Californians to keep the death penalty, the CDCR and the Governor’s office have effectively been nullifying the law by failing to enact a regulation by which to enforce that law.  While the CDCR details the history of the death penalty on their website, they fail to acknowledge that  a draft of a protocol for the single-drug method of execution that the state was requested to switch to by a Federal Court Judge has been sitting on the desk of the CDCR for over a year now, gathering dust.

It is easy to see why Governor Brown would be reluctant to put the state in a position to resume executions.  With 17 inmates having exhausted all appeals, it would put Governor Brown in the awkward position of being an anti-death penalty governor who executed the most condemned inmates of any governor in state history. The Governor can’t even grant most of them clemency since the State Constitution prohibits the Governor from granting clemency to a person “twice convicted of a felony.” So, instead of carrying out the law, the Governor is asking the Legislature for $3.2 million to open nearly 100 more cells on death row.

A lawsuit filed by the Criminal Justice Legal Foundation on behalf of crime victims, Bradley Winchell and Kermit Alexander pressed the issue and led to a settlement that will hopefully put the state in a position to resume executions in a year or two. The last execution in California occurred in 2006.   The settlement requires CDCR to begin promulgating an execution protocol within 120 days of the U.S. Supreme Court’s opinion in Glossip v. Gross. 

The Supreme Court ruled that the sedative midazolam can be used without violating the constitutional ban on cruel and unusual punishment. It should be noted that some people opposed to the death penalty support physician for assisted suicide which then begs the question; how can an execution drug be considered cruel when it’s the same drug being used by doctors for assisted suicide?  The court answered the question, it is not.

There are still hurdles to clear before the state stops dragging its feet and implements the voter approved death penalty.  All state regulations are subject to the Administrative Procedures Act (APA) which requires that the proposed regulation undergo a public vetting process that permits the public to comment on the proposed regulation.   This concept makes sense when you are talking about a regulation covering business or industry.  It allows the affected business to provide input about how the new rules would affect them and lobby for changes.   But in the context of an execution protocol, allowing public commentary and requiring the department to provide a “meaningful response” to every single comment, creates a logjam.   The last time CDCR put an execution protocol though the APA process they were flooded with over 30,000 comments from death penalty opponents from all over the country.

Marin County Superior Court Judge Fay D’Opal is the one who ruled the last protocol invalid.  She said that CDCR did not “meaningfully” respond to every single one of the 30,000 comments and that CDCR failed to explain why it did not adopt the single-drug execution method recommended by its own expert.

If California does manage to get past the APA and get a regulation enacted, there will be few remaining barriers.  The United States Supreme Court decisions in Baze v. Rees and in Glossip v. Gross have rejected challenges to the three-drug protocol formerly used by most states including California and the new two-drug protocol being used in Oklahoma.  The 9th Circuit Court of Appeals has already denied stays to single drug executions in other states within its jurisdiction.

Once California has an execution protocol in place, there is little the Governor or the Attorney General can do to thwart the implementation of the law.   After all appeals are final, jurisdiction over these cases returns to the local District Attorney and the local courts.   It is the local District Attorney and court who then schedule an execution date.  CDCR has no more power to refuse compliance than they have to refuse to accept a sentenced prisoner for housing.

It is important to remember that only a jury of one’s peers can impose death – not the police, not the District Attorney, not the judge.  Jury verdicts are rendered by the citizens of the community because they have the strongest interest in keeping their communities safe and protecting residents from the criminals who would prey on them.  The people of this state voted to keep the death penalty and the Governor and Department of Corrections have an obligation to honor the will of the voters and impose the law of this state.

Michele Hanisee is Vice President of the Association of Deputy District Attorneys. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Los Angeles Deputy District Attorneys.

Sanctuaries from Justice

By Marc Debbaudt

The recent murder of Kathryn Steinle in San Francisco has cast a harsh spotlight on “sanctuary cities,” a term given to communities that shelter illegal immigrants and where local law enforcement agencies are discouraged if not outright forbidden from cooperating with federal immigration authorities.

The suspect in Steinle’s murder, Juan Francisco Lopez-Sanchez, is an illegal immigrant who had accumulated seven felony convictions and had been deported from the U.S. five times. He had been released from his most recent prison sentence shortly before he allegedly gunned down Steinle in broad daylight while she was walking with her father on a pier. He was free to roam the streets because San Francisco is one of the cities that refuse to cooperate with federal immigration authorities. In other words, had he been held for deportation this murder would never have happened. Indeed, according to the Washington Post, he told authorities that he came to San Francisco specifically because he knew the city would not turn him over to the feds! This criminal came to San Francisco for  sanctuary and it was sadly everything but that for Steinle.

Backers of sanctuary city policies claim that crime victims and witnesses to crimes who are in the country illegally are reluctant to cooperate with police if they believe police will cooperate with immigration officials. But the policy of holding a criminal for ICE simply doesn’t apply to victims and witnesses. While their reluctance may sound plausible on the surface, it ignores one simple and inconvenient fact: there is no study or other empirical evidence showing that sanctuary city policies have helped solve crimes by increasing cooperation with police and prosecutors.

Some national leaders are pushing for passage of Kate’s Law, a federal law that would provide that if an illegal immigrant who was already deported is re-arrested in a sanctuary city, local law enforcement would be required to immediately notify U.S. Immigration and Customs Enforcement and to hold the illegal alien until ICE picks them up.

Some have seized upon Steinle’s murder to promote xenophobic views to further their personal political goals. That is wrong and it is abhorrent. I’m not against immigration or amnesty for those who have established themselves in our country and who obey our laws. I am against criminal immigrants and protecting immigrants who come here and commit crimes. But Steinle’s tragic death has fueled an important public policy discussion, and it has exposed the fallacy of the feel-good, laissez faire attitude toward illegal activities.

The reality is that any policy that turns a blind eye to illegal activities – including those that make it easier for people to remain in this country illegally – is a bona fide threat to public safety. Take, for example, SB 1310.

This bill, which Gov. Brown signed into law a year ago, reduced the maximum sentence for a misdemeanor from 365 days to 364 days. Why the one-day reduction?  Because under federal law, a sentence of 365 days or more classifies a crime as an aggravated felony, triggering deportation hearings for noncitizen legal immigrants.

But what the backers of SB 1310 didn’t advertise is that the law is designed to benefit those who are here illegally and commit crimes. The law does nothing for legal citizens of this country. It was constructed solely to benefit legal immigrants who do crimes and those in the country illegally as well. So one must ask – what was the true motivation behind this piece of legislation?

We all know that sanctuary cities and flawed legislation such as SB 1310 are not the only public policies that are threats to public safety. Perhaps the greatest threat of all is Proposition 47 which we discussed in a previous blog. Along with SB 1310, we’ve turned felonies into misdemeanors and then these same misdemeanors into non-deportable offenses all so that we can keep criminal illegal immigrants from being deported. Why would we even want do that?

As we know all too well, Prop. 47 coddles drug abusers and thieves – regardless of whether they are citizens, legal noncitizens or illegal noncitizens – by turning serious felonies into misdemeanors. Not surprisingly, violent crime surged 21 percent across Los Angeles during the first six months of 2015 following Prop. 47’s passage. Is that a mere coincidence? I’m sure some want to believe that.

It’s becoming clear that poor public policies promoted by callow elected officials are creating a perfect storm in which crime is able to thrive because it goes unpunished. In fact, the San Francisco Deputy Sheriffs’ Association called the Department’s order that mandates “limited contact and communication with ICE representatives absent a court-issued warrant, a signed court order, or other legal requirement authorizing ICE access” reckless.

One has to wonder when that perfect storm will become a tipping point that will mark a descent into the violent lawlessness that plagued the state in the 1980s and 1990s. This isn’t just the natural swing of the pendulum back from the movement that led to Three Strikes. This is a concerted effort by some pushing hard on the pendulum to further a reckless social agenda.

One also has to wonder how many more Kathryn Steinles will be sacrificed at the altar of political correctness before our elected officials do the right thing and take meaningful action to restore sensible cooperation with ICE that protects all law abiding residents in the state, legal or illegal.

Marc Debbaudt is President of the Association of Deputy District Attorneys. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA, which represents nearly 1,000 Deputy District Attorneys.