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More on Fixing California's Death Penalty

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  A bit more response to the ACLU-subsidiary's attack on California Senate Bill 779.  Their email is appended to this post.

   During the Prop 34 campaign, the proponents were running around saying things like "This is an opportunity to have a debate on the death penalty."  Okay, we had the debate, and the people decided to retain it.

    With repeal off the table, the choices are to keep the ineffective, expensive status quo or implement the reforms to make the system work.  SB 779 is a broad reform to remove the many unnecessary obstacles to implementation of the death penalty while keeping and improving needed reviews.

    The most important reform is state habeas corpus.  This review is for claims based on facts outside the record, and it belongs in a trial court.  No other state does it like we do.  The state supreme court mulls over it for years and then issues a one-paragraph order that just says whether the claims are defaulted, denied on the merits, or both.   A trial court decision that actually addresses the claims would be far better.

    Also, most cases should only get one state habeas review.  Randy Kraft is on his 10th, even though he was caught with the body of his last victim in his car.  Repeated reviews should be reserved for substantial claims of actual innocence.

    Various other reforms are also included such as clarifying that the Administrative Procedure Act does not apply to execution protocols, abrogating 1DCA's erroneous decision.

    Now, as for the gas chamber and Minsker's ridiculous statement:
    California law already provides for the gas chamber as an alternative method.  That was a decision made when the method was changed after the Harris execution.  This was thought to be necessary by some to avoid an ex post facto argument that the punishment was changed after the crime.

    Three other states similarly have the gas chamber as an alternate method -- Arizona, Missouri, and Wyoming.  Nine states have the electric chair as the alternate.

    Under existing law, inmates can choose the alternate method.  Some have in other states, although none has yet in California.  Last January, a Virginia inmate chose the electric chair and was executed that way.  An Arizona inmate chose the gas chamber in 1999.

    Given that California has the option, it needs to be made operational.  The old method of cyanide gas was held unconstitutional by the Ninth Circuit in Fierro v. Gomez, 77 F.3d 301 (1996), although that decision was vacated in light of the then-new statute providing the injection alternative.  See Gomez v. Fierro, 519 U.S. 918 (1996).  Even though an inmate who elects the method waives any challenge to it, see Stewart v. LaGrand, 526 U.S. 115 (1999), one who did under present circumstances would force California to go ahead with an execution under a method judicially found to be cruel, which is not a result anyone should want.

    Gas is not an inherently cruel method of execution.  Quite the contrary, it is deemed acceptable for animal euthanasia.  The problem with the old gas chamber was purely the choice of gas.  If made relatively painless, it might well be chosen by inmates who see it as more dignified than being strapped to a table in a supine position.

    Gas need not be toxic to be lethal.  A neutral gas can produce a painless death by displacing the oxygen in a chamber.  The American Veterinary Medical Association recognizes this as an acceptable method if the displacement is done quickly, which is not difficult.  See AVMA Guidelines on Euthanasia 9 (2007).

    This is not "suffocation," as Minsker calls it.  I don't need studies to know that hypoxia is painless.  I experienced it myself in Air Force flight training.  It doesn't hurt a bit.

    Replacing cyanide with a different gas would provide a painless and more dignified alternative.  It avoids many of the problems we have seen with the medicalization of executions.  It requires no medical training for the persons conducting the execution.  It is not susceptible to supply boycotts, as lethal injection is.  The opponents have no good arguments against it, so they resort to hyperbole.

    The fact that no state is presently actively using this method is irrelevant.  No state had used lethal injection as the more humane replacement for the electric chair and cyanide chamber until the first state did.  Someone has to lead.

    References to Nazi Germany are an infallible indicator of a desperate position.  The atrocity there was killing innocent people, not the method by which it was done.

   Hope that clears the matter up.

1 Comment

Having flopped with Prop 34, diversion is the only thing they have left -- well, that and deceit.

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