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Liberals Won’t Let the Death Penalty Die

A conservative judge ruled that California's death penalty was "cruel and unusual punishment," but Democrats are refusing to accept the repeal of capital punishment.

The lethal injection room at San Quentin State Prison. Photo via Wikimedia

“I personally oppose this terrible, awful, unjust thing that I’m doing,” only really works as a defense of one’s terrible, awful, unjust behavior if the alternative to working at, say, the local cat-skinning factory is starvation. Capitalism requires us all to sacrifice a bit of our moral integrity to put food on the table so, while it’s nice to be pure, it’s also nice to eat. There’s a line, though, which I’d draw at: killing people. You really shouldn’t kill people—and in the case of California’s most powerful elected officials, all liberal Democrats, no one is forcing them to do anything of the sort.

But kill they shall.

Governor Jerry Brown and Attorney General Kamala Harris both profess to oppose the state-sanctioned killings, of course. For Brown, “repeal of the death penalty has been a lifelong cause,” according to the Los Angeles Times, and Harris “personally opposes the death penalty.” Both, however, have refused to let their very personal opposition to capital punishment get in the way of their very public defenses of it, so much so that they declined to endorse a 2012 ballot measure that would have fulfilled their lifelong missions and abolished it.

In July, though, a federal judge appointed by former President George W. Bush gave these liberal leaders in liberal California another chance. In a scathing ruling, Judge Cormac J. Carney vacated the death sentence of one Ernest D. Jones—convicted in 1995 of rape and murder—and ruled that California’s system of capital punishment is broken beyond repair.

"Allowing this system to continue to threaten Mr. Jones with the slight possibility of death, almost a generation after he was first sentenced, violates the Eighth Amendment's prohibition against cruel and unusual punishment,” Carney ruled.

Over 900 people have been sentenced to death in California since capital punishment was reinstated back in 1978—including 55 since the anti-death penalty attorney general took office in 2011—yet only 13 people have actually been executed, the last in 2006. Though about half of all murderers are white, most of those on California's death row are people of color, with the vast majority of them sentenced to die for killing a white person, the severity of a crime determined by the victim's melanin. And after arbitrarily being put on death row—less than one percent of homicide convictions lead to a death sentence—they wait around for years not knowing if they will be one of those arbitrarily selected to try out the state's latest lethal drug cocktail, with more than 40 percent of those sentenced to die having been on death row for at least two decades.

“[T]o be executed in such a system,” Carney wrote, “where so many are sentenced to death but only a random few are actually executed, would offend the most fundamental of constitutional protections—that the government shall not be permitted to arbitrarily inflict the ultimate punishment of death.”

Here it was: a chance for California’s liberal leaders to use the cover provided them by a conservative justice to do away with a punishment they decry as barbaric. In a state where nearly half the electorate backed replacing the punishment of death with life without parole, it would not be political suicide to finally act on that personal opposition. As attorney general, Harris is not obligated to appeal decisions all the way up to the Supreme Court. She could accept the judge’s ruling and move on. She could hold a press conference and say, “My job is to uphold the law, not defend violations of the Constitution.”

Alas, no: In an August 21 press release, Attorney General Harris announced she was “appealing the court's decision because it is not supported by the law and it undermines important protections that our courts provide to defendants.”

California Attorney General Kamala Harris speaks at a press conference. Photo via Wikimedia

When I called Harris’ office to ask how, specifically, throwing out the death penalty violates defendants’ rights, I did not get an answer. So I turned to Matt Cherry, executive director of Death Penalty Focus, an organization which opposes capital punishment. “I do not know what Kamala Harris meant,” he told me, as it’s the status quo that sees death row inmates languish for years in overcrowded prison cells—or torturous solitary confinement—waiting for execution that the state doesn’t even have the drugs to carry out (though Governor Brown says he’s working on a concoction that can kill prisoners without torturing them to death; such is the kinder, gentler face of liberalism).

“It is important to emphasize that the cost and length of the appeals process, which Judge Carney highlights, is not a flaw in the system,” Cherry said, “but is an inevitable outcome of the requirement for due process in the use of the only punishment that is fatal and irreversible.” The system can’t be fixed, in other words: it’s fatally broken and must be thrown out.

In California, it’s not Republicans preventing that from happening, but liberals who claim to oppose what it is they are doing. That’s classic Democratic Party strategy: telling the base, “We have the same moral convictions as you, we just can’t act on them.” And that’s enough for some people.

“Recently, I mentioned that California’s current attorney general, Kamala Harris, is anti-death penalty,” author Rebecca Solnit, who popularized the term “mansplaining,” wrote in a 2012 essay on those to her left explaining the failings of her liberal idols, a phenomena she termed “leftsplaining.” Immediately after she noted Harris’ “anti-death penalty” stance, Solnit wrote that a “snarky Berkeley professor” pointed out that Harris had actually “condoned the illegal purchase of lethal injection drugs.”

That claim was true: California, under Harris’ watch, purchased lethal injection drugs from a foreign source, violating federal law. But what mattered to Solnit were not the morally compromising deeds, but the spiritual uplift she received from believing someone who shared her values was now in elected office. Why take that away from her?

“Apparently, we are not allowed to celebrate the fact that the attorney general for 12 percent of all Americans is pretty cool in a few ways or figure out where that could take us,” Solnit wrote. “My respondent was attempting to crush my ebullience and wither the discussion, and what purpose exactly does that serve?”

Two years later, the liberal Harris has staked out a position on the death penalty that is to the right of a judge appointed by George W. Bush. Perhaps if ebullient liberals had paid more attention to actions than pretty cool words, liberal politicians might now feel some pressure to act on the personal convictions they espouse when asking for campaign contributions.

Then again, ending the death penalty is itself a rather liberal cause. It should of course be done, but it’s not as if life in an overcrowded prison, or in solitary confinement, without the possibility of parole is much if any more humane. There were also just under 40 executions last year, compared to the well over 400 people killed by police, most of them black, so even if we were to do away with capital punishment, we’d still have the death penalty—just administered by cops without the formality of a trial.

Still, there is something particularly evil about premeditated state killing; of keeping hundreds of people on death row for decades and arbitrarily killing a handful of them with a torturous mix of undisclosed chemicals. Just be aware that abolishing that form of state-sanctioned vengeance is far from the only thing that must be done to make the “criminal justice” system more just. Way too many people are imprisoned in America—more than two million, the most in human history—for way too long, the vast majority for nonviolent drug and property offenses.

We ultimately need to kill the policy of mass incarceration, which has devastated poor communities in this country, disproportionately those of color. Just don’t expect any liberals to lead the way.

Follow Charles Davis on Twitter.