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A record pace for California executions?

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Around the country, and even in the Ninth Circuit, the lethal injection litigation has ended in affirmance of the procedure and resumption of executions in state after state.  So it is nearly inevitable that this will happen in California, probably within the next year.

Given the length of this unnecessary moratorium, a dozen cases have piled up with all usual reviews completed, Howard Mintz reports in the San Jose Mercury-News.  That is almost as many as the total executions from the restoration to date.

Once the injection challenge is resolved, how quickly could these executions be carried out?  Career obstructionist Michael Lawrence is quoted saying he does not see how the system could function.  But the proper functioning of the system, in terms of determining whether these sentences will be executed, has already been completed. 

Lawrence appears to be assuming that there must be a flurry of last-minute litigation for every execution.  Why?  How many of the dirty dozen even claim that they did not commit the offense?  One, as far as I know, and that one has already been thoroughly investigated.  Absent such a claim, attempts at further litigation after a full round of both state and federal review should be summarily dismissed.  And, of course, the government should not be funding the lawyers who file them.

What would be the effect on the public mind of seeing a series of executions over several months in early 2012?  As I told Mintz, it would undercut one argument being made against the death penalty: that it is all futile because we are not carrying out the executions anyway.  Mintz follows that quote with one from Judge Alarcon that it would not solve the problem of the huge death row and long delays.  True, but that wasn't my point.  The answers to that problem are (1) for the Legislature to get off its behind and pass the reforms we have proposed multiple times over the years; and (2) to implement the federal fast track that Congress enacted 15 years ago.

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"Lawrence appears to be assuming that there must be a flurry of last-minute litigation for every execution. Why?"

Since the US Supreme Court obviously has a soft spot for last-minute death penalty filings, it's not unreasonable for lawyers to assume that it would be the case. You get what you incentivize. This nonsense really got started with all the Baze stays. These stays, granted in response to last-minute litigation, flouted Supreme Court holdings about cert. grants not excusing a failure to file earlier and Supreme Court holdings about the propriety of interference with state capital judgments. It's as if the Court now has an unwritten rule (that completely flouts the purpose behind AEDPA) that it will bend over backwards to help capital litigants. Some of the questioning in Maples showed that a not insignificant number of Justices were concerned about these silly optics. The questioning about Alabama's refusal to waive the deadline was simply over the top. Why should Alabama waive these rules? So the Supreme Court isn't put in the position of having to deal with a puffed-up case of "abandonment."

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