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The voters have spoken. Now it's time to enforce the death penalty.

Statement of the Criminal Justice Legal Foundation on the defeat of Proposition 34:

The people of California have once again reaffirmed that the death penalty is fundamental justice for the worst murderers.  They did so despite a misleading campaign that massively outspent its opponents.  We had a vigorous debate, and the people have decided.
Yet a great many Californians voted for Proposition 34 even though they support the death penalty as a general matter.  They did so because they are frustrated with the ineffectiveness and excessive cost of the present system.  These voices should also be heard.  The choice was to mend it or end it, and California's leaders must now mend it, not preserve the status quo.  Specifically, the following actions should be taken as soon as possible:

1.  Governor Brown should adopt the more modern method of lethal injection already adopted and used in six other states and already approved by the federal court hearing the California litigation.  He should invoke an available exception to the Administrative Procedure Act to put the new protocol into immediate effect while the lengthy regulation process is carried out.  The State of Washington carried out an execution six months after adoption of the new method, and California can also.

2.  The Legislature should limit capital appeals to one full review in all cases where there is no doubt of the identity of the perpetrator, which includes most capital cases.  There is no reason why Randy Kraft, caught with the body of his 16th victim in his car, should have nine additional reviews of his case at taxpayer expense.  This reform has been repeatedly killed in committee in years past.

3.  The Judicial Council should amend the pointlessly restrictive standards for who is deemed "qualified" to handle a capital appeal so that we can expand the pool of lawyers and speed these cases up.  Even the American Bar Association, as anti-death penalty as it is, agrees that the kind of rigid standards presently in effect in California have little bearing on the actual quality of representation.

The defeat of Proposition 34 was an important victory for the cause of justice.  But the status quo is unacceptable.  California's leaders in all three branches of government have failed to this point.  It is high time for them to act.


The death penalty is dying. Whether or not the 14 or so vicious murderers in California ultimately get executed is irrelevant, although not, of course, for the victims' family members (and I wholeheartedly support the execution of these savages). I have previously stated my outright disgust at the idea of yanking the rug out from under these brave people who continue the fight for justice for their loved ones. I have also stated my outright disgust at courts in general (and the Supreme Court in particular) for unexplained last-minute stays utterly bereft of compliance with pronouncements of the Supreme Court. But the bottom line is that the courts are deeply suspicious of capital punishment and seem to have a visceral dislike for it. Given the power of our courts in modern society, no practice can continue that does not have the courts' blessing. That ultimately dooms capital punishment. To me, this is a very sad development. From a personal standpoint, I believe that vicious murderers deserve to die for their crimes, and so I support capital punishment, but there's more. It's the theft of our right to govern ourselves and the theft of the power of democracy. What good is the power to govern ourselves if courts can simply shackle the exercise of that power. Capital punishment is unquestionably constitutional, but the endless stays, the endless revisions to the "law" etc. make capital punishment incredibly hard to enforce, even where there is zero question of innocence and little doubt about the heinousness of the crime. The slow walking of lethal injection litigation is a prime example of this. Relatedly, elected officials, sworn to uphold the law, ignore it. That undermines the rule of law, and it makes a mockery of the democratic power of the citizenry--a law is not a law that is ignored and the power to enact a law that is ignored is no power at all. Jerry Brown and Kamala Harris have basically said, "So what?" to the law here.

The propaganda of the anti-capital punishment forces wins out as well. Sharon Keller was held up as a butcher simply because, quelle horreur, she didn't think that a Texas appellate judge should give ex parte advice on how a capital murderer's last minute appeal should be perfected. Capital murderers who have had a full panoply of review and who are filing a last-minute appeal that could have been filed earlier should be the last litigants that get such judicial succor. Instead, the maudlin whine that "there's a life at stake" carries the day. Some of our conservative Justices on the Supreme Court have unconsciously swallowed this propaganda. Justice Alito gave the Alabama AG a hard time at the oral argument for Maples v. Thomas because Alabama decided to stick to its litigation guns with a capital murderer. I respect Justice Alito, but that is simply disgraceful. Once again, why would an unquestionably guilty capital murderer be entitled to the state ignoring rules of procedure? And what business is of the Supreme Court to criticize a litigant's legitimate insistence that the rules of procedure be followed?

Compare that sort of bending over backwards to the Court's acceptance of the federal courts' outright defiance of AEDPA in capital cases.

We are fighting a rear-guard action. I hope I am wrong, but I am afraid that I am not.

I hear you, and share many of your thoughts, but things are a bit brighter than they seem.

In a democracy, what ultimately gets done is what the majority wants done. The majority wants the DP. As long as this is true, the other side can't completely win. They can drive us nuts, but they can't win.

Second, our majority is strong and enduring. It has been at 60% or better nationally for many years.

Third, we should, as Kent has done, take our victory on Prop 34 and run with it, both in California and nationally. To listen to the MSM, you would think that the only initiatives that won were the pro-pot ones in Colorado and Washington, and the tax increase in California. We should be sending out press releases at a mile a minute.

Fourth, remember that we have been in far worse shape before. The DP actually was outlawed for four years, and there were no executions for ten (1967-1977). But our side came back to prevail. Our task this time is much easier: Keep what we have and work for reform that would expedite the process. In other words, for as bad as it looks now, we've overcome worse. And if you think our side is feeling embattled, what do you think the Prop 34 backers are feeling like just now?

Finally, as in everything else in life, the thing to do in times of adversity is not give up. It's fight harder.

Bill, today's circus with respect to the stay issued in favor of Hubert Michael Jr. is a perfect illustration of how the death penalty is withering on the vine. Michael's crime is a typical depressing tale of a young woman kidnapped, raped and ultimately murdered. Pure evil--a rapist (Michael had previously raped another woman) mad at women and the world decided to take out his misplaced rage on an innocent 16 year old. That was in 1993. Michael was charged with murder (not rape, although he admitted to raping 16 year old Trista Eng), and a Pennsylvania jury did its duty an imposed a death sentence on this human detritus. And then the state appeals came and went. Michael decided, years ago, to drop his federal habeas claim, and after years of litigation, the dismissal of his habeas case was affirmed, and on September 12, 2012, Governor Corbett set today's execution date.

AEDPA, of course, was enacted to tightly restrict a second go-round of habeas after the first one and to prevent the bogging down of the state's right to enforce its judgments with last-minute appeals. Bill, you will note that AEDPA was an Act of Congress. This stay flies in the face of AEDPA. But even apart from AEDPA, we have a federal system---the Governor set a date with a reasonable amount of lead time, and the federal courts couldn't figure out how to deal with Michael's "now I want to restart my habeas case" claims in that amount of time?? The federal judiciary, and that includes the US Supreme Court, is thumbing its nose at the law. As bad as that is, the fact that they are doing it on behalf of a brutal murderer who has litigated his case for well over a decade. And the Supreme Court couldn't even be bothered to explain itself.

All of this would be bad enough in a vacuum--an arrogant federal judiciary getting around to making a decision on its own schedule, after, of course, years of previous federal litigation, but let's take some time to think about how awful this must be for the victim's family. They have endured almost two decades waiting for justice. And a date was set. They had every right to hope that justice would finally be done. And then, on the day justice was to be carried out, the federal courts decide to yank the rug out from under these unfortunate people. And the Supreme Court, without so much as a word of explanation decided to affirm this travesty of justice.

The panel, and every member of the Supreme Court, has earned the hatred of this victim's family. There is simply no excuse for this stay. The general rule is supposed to be that after the habeas is done, unless there is some innocence question, the state gets to carry out its judgment. In this case, there is absolutely no reason to deviate from that rule. None. From what I can tell, the 3d Circuit didn't evaluate the equitable factors counseling for and against the stay, and the Supreme Court, in affirming this miscarriage of justice and poke in the eye of the Commonwealth of Pennsylvania (not to mention the studied cruelty to a victim's family), didn't even bother to discuss these factors.

Ignominious is too kind a word to describe the Supreme Court with respect to this case.

Don't be surprised if this family has to wait 3 or 4 years for justice to be done.

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