Jerry Brown, then attorney general, made the right choice in 2010 when he refused to defend Proposition 8 in the appellate courts after Judge Vaughn Walker ruled that the anti-gay marriage law was unconstitutional. After all, Brown had opposed Prop 8 and was convinced it was unconstitutional, too. He then continued to refuse to defend the law when he became governor. Likewise, Kamala Harris took a principled stand in 2011 when she declined to defend Prop 8 after she succeeded Brown as attorney general. Those decisions by Brown and Harris took courage; they both endured criticism for refusing to defend a voter-approved law.
It's now time for Brown and Harris to show their courage again — and refuse to defend California's death penalty law in the wake of a recent decision by a federal court judge who said it's unconstitutional, too. After all, both Brown and Harris oppose capital punishment, and Brown publicly disclosed that he had voted for Proposition 34 in 2012, which would have abolished the death penalty in California.
Brown and Harris have not yet said whether they will appeal the decision by US District Judge Cormac J. Carney, an appointee of former President George W. Bush. They should not. It's long past time for California to do away with its badly broken death penalty system — a system that is extraordinarily expensive, unnecessary, and barbaric.
Granted, Brown and Harris' decision in the death penalty case may be more difficult than the ones they made involving Prop 8. In that case, it was pretty clear that the courts planned to allow the backers of Prop 8 to defend it when Brown and Harris wouldn't. But in the case of the death penalty, it's not clear whether any outside group that supports the death penalty would have the legal authority to defend it in court. As such, if Brown and Harris refuse to appeal Carney's decision, it could mean the end of the death penalty in California.
But that shouldn't dissuade Brown and Harris from doing what's right. Just like in the Prop 8 case, there is no legal requirement to defend a law that they believe is wrong — and that a judge has ruled unconstitutional. Similarly, President Obama and US Attorney General Eric Holder made the right decision when they refused to defend DOMA, the federal anti-gay marriage law.
They also shouldn't worry about public opinion. The public's views on social issues such as gay marriage, marijuana legalization, and the death penalty tend to evolve over time. In 2008, Californians approved Prop 8, but now, a large majority of state residents support marriage equality. Similarly, in 2010, state voters turned down Proposition 19, which sought to legalize cannabis. But now, the vast majority of residents say they support legalization, according to numerous polls.
The public's views on the death penalty are likely no different, especially in a state like California that is becoming more liberal each year. Prop 34 only lost by four percentage points in 2012, and there's a good chance that Californians' views on the death penalty have evolved since then — especially in light of the fact that a Republican judge has now ruled that the state's system for executing people is unlawful.
Indeed, Brown and Harris could help tip public opinion against the death penalty by making strong, principled stands against capital punishment right now. It's called leadership.
The death penalty system is beyond repair. The leading manufacturers of the drugs used in lethal injections are withdrawing their supplies, and the remaining drug makers don't want to be publicly associated with capital punishment. That's forced some states to try to locate secret supplies of lethal drugs. These problems have resulted in three recent botched executions.
"It's never been worse than now ... with the drug shortage, the experimentation, states using whatever drugs they can get their hands on," Deborah Denno, a law professor at Fordham University and a longtime researcher and commentator on the death penalty, recently told the San Francisco Chronicle.
Things have gotten so bad that the top-ranking federal judge on the West Coast — Alex Kozinski — recently said that the state should switch from lethal injection to firing squads. "Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood," Kozinski wrote in a recent case. "If we, as a society, cannot stomach the splatter from an execution carried out by firing squad then we shouldn't be carrying out executions at all."
And that's the crux of it: We can't stomach the public shooting of a person, which is why we created lethal injection in the first place — because it seems more humane, when, in truth, it's not.
Brown also has nothing to worry about politically. The polls show that he's going to crush Republican Neel Kashkari this November — and a decision to not defend the death penalty is not going to have much impact on his insurmountable lead. Likewise, Harris is a shoo-in for reelection this year. She won the June primary in a landslide, finishing more than forty percentage points ahead of her closest Republican competitor. And if she's concerned about her future prospects for being governor, she shouldn't be. Her closest rival, Lieutenant Governor Gavin Newsom, opposes the death penalty, too, and he made his name by publicly flaunting the state's ban on gay marriage when he was mayor of San Francisco. Moreover, California residents knew full well that Harris opposed the death penalty when they elected her attorney general four years ago.
In short, there's no good reason for Brown and Harris to appeal Carney's decision. It's time for our death penalty nightmare to end.