No End in Sight for California Capital Punishment Fight

Robyn Barbour was for the death penalty before she was against it. The Sacramento-area teacher says she used to support capital punishment in California "because my dad was in favor of it."

Barbour had a change of heart when her grandmother was murdered in 1994. Her killer is now incarcerated at the Central California Women's Facility in Chowchilla. That facility houses a death row for women—but her grandmother's murderer got a life sentence.

Barbour recalls a district attorney "who needed to enhance his political stature" by pushing for the death penalty. She also noted the inherent racial bias in the system: white victim, white perpetrator. Her grandmother's murderer was a serial killer, says Barbour, "and if she had been black, she would have been executed."

Barbour now serves on the San Francisco-based Death Penalty Focus, an anti-death penalty group.

The state hasn't executed anyone since 2006 because of challenges to the constitutionality of the method and process of putting the condemned to death. That method is at the center of the state's struggle to come up with an execution protocol that meets Eighth Amendment standards against cruel and unusual punishment.

The state said it would wait for a ruling from the U.S. Supreme Court before proceeding. In the meantime, there's a lethal-injection chamber at San Quentin built in 2008 which has yet to be used.

The ruling on the matter, Glossip v. Gross, came down June 29. The Roberts court said a three-drug injection, despite well-publicized "botches," doesn't violate the Constitution.

Then there's the process. A U.S. District Court judge ruled in 2014 that the death penalty in California is unconstitutional, not because of the method, but because of delays that stem from a lack of attorneys for defendants. State Attorney General Kamala Harris appealed the decision; it's now in the hands of the 9th Circuit Court of Appeals.

"California is moving on two separate tracks," says Robert Dunham, Executive Director of the Death Penalty Information Center (DPIC), a Washington, D.C.–based clearinghouse for all things execution. "One is the abolition, and the second is reactivating it. Obviously, those are internally contradictory tracks."

Dunham says the state will submit its new draft protocol for comment, but that's just the beginning. "It will be a matter of probably years before a protocol is in place and approved by the courts."

State prison officials said they will issue a draft protocol within 120 days of the Supreme Court's decision.

"In order to comply with California's capital punishment laws, the California Department of Corrections and Rehabilitation [CDCR] has been developing lethal-injection-protocol regulations," says agency spokesman Jeffrey Callison via email.

The state is pursuing a one-shot lethal-injection protocol, says CDCR deputy press secretary Terry Thornton. The one-shot method has generally entailed a lethal dose of sodium thiopental, but pharmaceutical companies no longer provide that drug to correctional facilities. Officials here and in other states have worked to shield the source of the drug from public view.

The CDCR acknowledges that there's been a problem with access to execution drugs, as it notes that there are currently 751 people on California's death row as of July 7.

Depending on what happens with the case now before the Court of Appeals, this "two-track" standstill might be moot, says Dunham of the DPIC.

The 2014 District Court ruling threw out the capital conviction of Ernest Dewayne Jones. It found that the death penalty is unconstitutional "because of California's failure to provide timely counsel to death row inmates," says Dunham.

"Much of the coverage of the Jones case has talked about the death penalty [being] declared unconstitutional because of the amount of time it takes while the appellate process is completed," adds Dunham. "That's true as far as it goes, but a lot of people are under the mistaken impression that it's because of endless appeals filed by inmates."

The California Legislature limits the pool of lawyers available to inmates in capital cases. "The district court found that the state, and not the defendants, were responsible" for the appellate delays, he says. "California has a conundrum because it doesn't have a mechanism to move the cases through the appellate process, and once that is completed, it has no method of execution. Fixing one without fixing the other is not a solution."

For now, capital punishment in California resembles an M. C. Escher drawing—a Möbius strip going endlessly nowhere. Dunham recalls a print, "the one with the guy on the stairs, where you can be walking on the top and the bottom of the stairs at the same time."

The method and the process, he says, "are two separate things, proceeding on two separate tracks that are oblivious to one another."

Meanwhile, there are hundreds of condemned at San Quentin, and more on the way.

"You'd think," says Barbour, "they would stop sending people there."


  1. > The state is pursuing a one-shot lethal-injection protocol, says CDCR deputy press secretary Terry Thornton. The one-shot method has generally entailed a lethal dose of sodium thiopental, but pharmaceutical companies no longer provide that drug to correctional facilities. Officials here and in other states have worked to shield the source of the drug from public view.

    The reason that Donald Trump is doing so well in the polls is that crap like this makes no sense to normal people.

    It’s all just sophistic, insider lawyering intended to evade and frustrate the will of the people.

    People want heinous bad guys dead. Now.

    Hang ’em. Shoot ’em. Knock ’em in the head with a shovel.

    • Who are People? I don’t . . . and a referendum to end it in California came within two percentage points of ending Capital Punishment in California. More honestly, you personally, want to knock them in the head with a shovel . . .makes you a whole lot like those we condemn

      • I was, at one time, a rabid proponent of the death penalty but have since moderated my views. Compassion is absolutely not the reason. There are some facts of which most death penalty advocates are sometimes unaware.

        The average death row inmate spends about 10-15 years in prison before being executed. A substantial number die of natural causes. While incarcerated, pending (a less than inevitable) execution, these inmates are given special consideration. Death Row inmates at San Quentin State Prison have about the only private accommodations in the State’s grossly overcrowded prison system. Not having to share a cell reduces the potential “prison wife” complication and allows less anxiety while sleeping face down on their cots. The cells are slightly larger than others and Death Row inmates are allowed more personal property inside their cells. They have exclusive control over the television, CD player and other diversions in their cells. They don’t have to fight “Rocko” for the TV remote.

        They have better access to phones and limited internet access. Scott Peterson has his own blog site. He simply emails family members who post his comments, photos, drawings, etc., on a web site they have created for him. Unlike other inmates, Death Row inmates have private, “contact visits”, rather than communal visits in plexiglass booths. Death row prisoners are served breakfast and dinner in their cells but can still eat a sack lunch while mingling with other inmate-friends in the exercise yard.

        By contrast, an inmate sentenced to life without parole is generally treated much the same as other inmates. “Lifers” could be given slightly smaller than average cells that they would then have to share with a serial killer or other violent “lifer”. While this might make it a bit more difficult to sleep, it would also encourage good manners in the cell and likely reduce the number of rude inmates. After all, if an inmate is already in for life without parole, why tolerate a rude cell mate when there is no real downside to killing him.

        If a “lifer” is required to mop floors, clean toilets and pick up trash in the yard everyday for the rest of his life, while sharing the same cell with “Bruno the Mouth Breather” and while enjoying the same “less than optimal” conditions as every other inmate, and knowing it will never end, this would be a much more appropriate punishment and deterrent than living in a 3-star “Death Row Hotel”, secure in the knowledge that execution is by no means inevitable (CA has only executed 13 killers since 1977, 56 have died from other causes and there are over 700 on Death Row currently) and while knowing he will probably live longer and more comfortably than other inmates and be much less likely to be “shanked” or “fall in love” in the prison shower.

        There should be some changes in the law in relation to those convicted of death penalty offenses. First, the State should be required to leave a stout length of rope in their cells. Secondly, a special category of “justifiable homicide” should be created that would allow any family member, or relative (or authorized proxy) of the victim to kill the “factually guilty” inmate, should the inmate ever be released or have his sentence commuted due to some “lawyering Houdinism” or political expediency. If, released,the State should be required to place a distinctive “Death Row” tattoo in a conspicuous place (forehead perhaps) of the released killer and be required to notify the victim’s family of the exact time of the release and the drop off location, as well as providing a current address, a photo of the inmate, and, as soon as available, his daily itinerary, schedule and routine . Let him live the rest of his life looking over his shoulder. There are better alternatives than the death penalty.

    • Who is “People” ? You? Because I don’t. CA voters came within 2 percentage points of ending capital punishment in CA when it was on a ballot. So, a more honest answer would be, ‘you’ want to knock’em in the head with a shovel. Isn’t that behavior a whole lot like what we claim to condemn?

    • It sadly makes perfect sense to the ‘tear it all down’ idiots… the same ones who fought to discover wages of public employees so that they could fight pay and benifit packages are the same idiots the state is hiding the identity of death penalty drugs from.

      Please do not waste your time telling me thst it was concerned taxpayers demanding accountability because it is a simple fact that the attorney who sue to get this information made public was also the publisher of the Merc.

      This is the result of educational indoctrination that denies that we are a republic and teaches that when “democracy” fails the “will of the people” then lawsuits demonstrations and boycotts get it done.

  2. The reason that no one has been executed in California since 2006, and very few before then, is that it sits within the jurisdiction of the Federal 9th Circuit Court of Appeals, a body which is comprised of a significant number of judges who are opposed to Capitol punishment and have regularly created legal excuses to prevent executions. Many of these reasons are not recognized by courts in other parts of the country. As SJOTB stated, it is indeed lawyering without a true legal basis and is absolutely intended to frustrate the will of the people.

  3. Jack “Dr. Death” Kevorkian assisted many people in their suicides. None of the surviving friends or relatives of the people he assisted complained that what Dr. Kevorkian did was cruel or unusual, or that their terminally ill loved ones suffered by taking whatever it was Dr. Kevorkian prescribed. Why not forget all this protocol nonsense to satisfy U.S. District Court Judge Jeremy Fogel here in SJ, who is single handedly responsible for the cessation of executions of convicted criminals in California? Dr. Kevorkian clearly found a safe and effective way of ending life. Let’s just use that. Anyway, there is a huge chasm between a little pain and suffering a convicted killer might suffer and cruel and unusual punishment—a fact that has eluded Judge Fogel. Oregon has assisted suicide. Has anyone heard of any person who has said that they observed a person utilizing that method of ending their life had a cruel and unusual death? The folks at CDCR need to find out what Dr. Kevorkian prescribed, and use it. End of controversy. As for the delays in executions allegedly caused by the lack of enough lawyers handling death penalty appeals, perhaps if the state paid them at a realistic hourly rate more lawyers would join the program. Or, perhaps there just aren’t that many skilled lawyers in California who oppose the death penalty.

  4. The difference between Kevorkian’s patients and death row inmates is the patients *wanted* to choose when and how they would die. It’s cruel and unusual to make that decision for someone else.

    • Great point, KP, and the difference between suicide and right to choose; and making all of us part of state sponsored murder.

      • Hey Christine, are you forgetting that these poor people are convicted killers (premeditated, serial or multiple deaths) and not just some dumb dope heads. Maybe you should invite them into your apartment or please go visit them at San Quentin.

        • Toby1981,but emotions and victims’ loss do not run our court systems. Public safety and the good of society are the goal. In 1972 when the USSC ended the death penalty, of the 500+ people who were on death row nationwide and resentenced (since Life Without was not a sentence back then) over 300 went on to be paroled. Of those, only about 30 ever went on to have any serious contact with the law again (burglary, etc.), 80+ had minor infractions like traffic tickets, and only 8 went back to prison for murder. Well over 200 never had contact with the law again – though they had been slated to be executed. This means, as citizens we would have been responsible for needlessly executing over 200 men and women who with support of churches and community went on to live what is loosely considered to be successful lives. Sentencing is not about revenge, it’s about the good of society. For those who society cannot rehabilitate and reintegrate, we have parole boards. I give you Charles Manson, who was one of those whose sentence was commuted in 1972. His last parole board hearing was a denial of 15 years. He will be 92 should he live that long. We have systems set up that keep society safe. We do not need to become like those who commit acts we condemn. It is also ‘who’ we give the death penalty to. All studies show it has nothing to do with being the ‘worst of the worst’ which your comment insinuates, but far more to do with poverty, color, and mental illenss . .whose who in society who make us feel uncomfortable and we are more inclined to see as throw away. Those are who, in general, fill our prisons and death row. Many others who have committed far more heinous crimes, never receive a death sentence. In fact 2 percent of the countys in this country send people to death row; sadly 7 of those countys are here in California and may be the reason we have such a large death row population – yet it has done nothing to lower our homicide rate. Yet, studies show that states that do execute, actually have higher homicide rates. I don’t know . . .might be that violent solutions beget more violence?

        • Whatever one may feel on behalf of victims, which is very real and important, revenge sentencing has done nothing to make us better as a society, to solve our problems or move us to working solutions. Capital punishment, as a sentencing structure in this country has been a miserable failure. Fortunately the jurors in Colorado (the JL case) got that yesterday, ended years of legal wrangling before it ever got started. Now lets instead invest those resources in supporting those who lost their loved ones and suffered through that horrible tragedy.

          • Christine,

            Your arguments are unpersuasive to me. From your posts it almost seems that you believe that if it weren’t for the death penalty, convicted murderers would live forever. Of course you don’t really believe that, but there’s certainly a lot of emotion couched in your arguments.

            All the state is doing is adjusting the time of the murderer’s demise. That does not bother me at all. My one and only concern would be to apply the death penalty only when there is irrefutable proof that the killer committed the crime. ‘Beyond a reasonable doubt’ is fine for most felonies, but I think a higher standard should apply to the death penalty, because it is irrevocable. Aside from that, though, the death penalty for murder is surely a fair exchange. Isn’t it?

            In reality, the death penalty is a net benefit to society. There can be no argument that the criminals you cite who went on to murder again would not have killed again if they had been executed.

            Finally, I’d be curious to see how you feel about the victims of Planned Parenthood. Care to comment on that? Because there are a ton of analogies that apply.

  5. Ask the victims families how they feel, like Scott Peterson’s mother-in-law whose daughter rolled up on shore with
    the poor little baby!!! A COLD blooded murderer who needed to be put to death immediately!!! I will never forget when
    I saw pictures of that baby. It makes me want to get sick and vomit. And, further, to all the other Scotties who killed in
    cold blood, you should be executed the day after they find you 100% guilty. Period. Stop letting people like him sit on death row and then down the road “let him out for good behavior!!!” Right. Just like the creep who buried all those poor children in the bus, who these children grew up with nightmares and maybe suicidal. Brownie released this guy!!!!! unbelievable.

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