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Death to the penalty

Chris Smith | Edited by Nan Wiener | October 19, 2011 | Story Politics

In California, the death penalty has been in retreat for years, beset by revelations of wrongful convictions nationwide and legal challenges to the state’s lethal-injection procedure. But this fall, a San Francisco federal judge could declare the law itself unconstitutional, which would halt executions for years to come and ultimately bring the whole system crashing down.

At issue is an appeal by Troy Ashmus, an unemployed carnival worker convicted in 1986 of the rape and murder of a seven-year-old Sacramento girl. Ashmus admits to the murder, but he’s arguing that in California, the process for meting out the death penalty is at once too vague and too random. Prosecutors have near total discretion in deciding who gets it, since virtually any first-degree murder is considered eligible.

In a landmark 1972 decision, the U.S. Supreme Court ruled Georgia’s death penalty unconstitutional for exactly this reason, calling it “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The court’s solution was to narrow the law so that only the worst of the worst could be sentenced to death. The Supremes didn’t spell out an exact standard, but the decision forced all the states to rewrite their laws.

California lawmakers responded by creating so-called special circumstances worthy of the death penalty—the killing of a cop, for instance. But soon after this narrowed law took effect, Republican state senator John Briggs mounted a successful ballot effort that more than doubled the number of special circumstances. Over the years, the standard has been broadened even further. As a result, “the situation in California sounds a lot like Georgia in the 1970s,” says Franklin Zimring, a death penalty expert at UC Berkeley’s law school.

For Ashmus’s appeal, the San Francisco–based Habeas Corpus Resource Center, a state agency that represents death row inmates (full disclosure: My girlfriend worked at HCRC, though not on this case), presented a series of studies illustrating the extent of the problem. One shows that California’s rate of death-eligible murders is higher than that of any other state, including trigger-happy Louisiana. “It’s off the charts,” says Michael Laurence, HCRC’s executive director. Another proves that under current law, a full 95 percent of all first-degree murders committed between 1978 and 2002 warranted the sentence, but only 8.7 percent of the murderers received it. That may sound like a good thing—few people actually getting the ultimate judgment—but with so many eligible, it means that the few souls who did get unlucky didn’t necessarily “deserve” it more than the rest.

The decision lies with district judge Thelton Henderson, a civil rights icon whose ruling on prison overcrowding has forced California to cut its inmate population. If he strikes down the law, the state will appeal—all the way to the Supreme Court, if necessary—so any final decision will take years. But in the meantime, executions currently on hold because of legal challenges are almost certain to be stalled for years.

Anti–death penalty advocates, meanwhile, could end up beating the courts to the punch. In August, a plan was announced to put a repeal of the penalty on next fall’s ballot—and in a recent poll, 63 percent of Californians said they’d support converting death sentences into life without parole. One way or the other, members of the defense community are cautiously optimistic that the death penalty’s days are numbered. “It’s like pushing a boulder uphill,” Zimring says. “But things are changing.”


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