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A federal judge issued a stunning decision last week, holding that the dysfunctional administration of California's death penalty violates the Eighth Amendment's prohibition against cruel and unusual punishment.

California Death Penalty Arbitrary

As Judge Cormac Carney, a Bush appointee, found, systemic delays result in execution of only a "random few (who) will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary." Of the more than 900 people who have been sentenced to death since the penalty was reinstated in 1978, only 13 have been executed. There are currently 748 Death Row inmates.

The process for reviewing each of their sentences takes an average of 25 years and is getting longer - delays, as the court found, that are inherent in the system and not the fault of the inmates themselves. California Attorney General Kamala Harris has not announced any decision on whether her office will appeal this ruling to the U.S. Court of Appeals for the Ninth Circuit in San Francisco. It is hoped that Harris will accept this well-reasoned, well-documented decision - that she will not seek to have it overturned nor object to its application in all other capital cases.

When Harris was the San Francisco district attorney, she courageously decided against authorizing death-penalty prosecutions in controversial cases.

When she campaigned for the job of attorney general, she acknowledged that California's death penalty system was flawed, arguing that it had not made us safer and that the money spent could be used far more productively to stop recidivism. As she put it, "not housing octogenarians on Death Row could put 1,000 more cops on the street."

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She was right. A bipartisan commission found that California's death penalty is "plagued with excessive delay in the appointment of counsel" and "a severe backlog in the review" of cases before the California Supreme Court. Another extensive study determined that it has cost taxpayers roughly $4 billion "to fund a dysfunctional death penalty system that has carried out no more than 13 executions." Despite these vast expenditures, Chief Justice Tani Cantil-Sakauye acknowledged, the death penalty is not effective, and fixing its problems would require "structural changes" that California cannot afford.


The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty. A federal judge has now agreed: "or all practical purposes ... a sentence of death in California is a sentence of life imprisonment with the remote possibility of death - a sentence no rational legislature or jury could ever impose."

The attorney general, who represents the people of California, has the duty to enforce and apply the law. But where a court has found that law to be unconstitutional, she would be well within her discretion to abide by the court's decision. By accepting a ruling that confirms what she has long stated - that California's death penalty is broken - Kamala Harris would be taking the kind of principled position for which she is so admired. Please join me in urging her to do so.

andy love

Andy Love
SF Gate

Andrew Love is a Bay Area lawyer who has represented Death Row inmates for 25 years. Contact Attorney General Kamala Harris via Twitter, @KamalaHarris.