SAN FRANCISCO — When the California Supreme Court upheld a voter initiative in August to speed up executions, some death penalty advocates assumed lethal injections would resume before the end of the year.
Three months after the court’s action, backers and opponents of the death penalty concede that executions might be more than a year away.
Gov. Jerry Brown’s administration has yet to finalize an execution protocol, which is necessary to resolve a federal court case that has blocked lethal injection in California for nearly 12 years. An injunction stopping executions also is pending in state court.
“Brown is the shot caller” in the litigation over lethal injection, said Michele Hanisee, president of the Association of Deputy District Attorneys for L.A. County.
Hanisee expects the state to finalize a lethal injection protocol by January, but if Brown “doesn’t want it to move forward quickly, it won’t move forward quickly,” she said.
Brown personally opposes the death penalty but enforced it as attorney general. He took no position on two recent and unsuccessful ballot measures that would have ended the death penalty.
Chemerinsky and other lawyers said it was conceivable that Brown and defense lawyers could delay executions until Brown steps down as governor in January 2019.
Brown also could try to commute death sentences to life without parole, but his power is limited by the California Constitution.
Unlike former Illinois Gov. George Ryan, who just before leaving office in 2003 commuted the death sentences of all of Illinois’ condemned inmates, Brown would need the support of the California Supreme Court to spare inmates with multiple felonies on their records.
Lawyers estimate that at least half of all death-row inmates have committed two felonies. The governor would need the support of four of the seven state Supreme Court justices to commute those inmates’ sentences.
Brown has three appointees on the court and a fourth vacancy to fill. But whether his appointees would support commutations is questionable.
Two of them — Justices Goodwin Liu and Mariano-Florentino Cuellar — are moderately liberal, but Justice Leondra Kruger, the third, has voted with conservatives on criminal justice issues.
Ronald Reagan was the last California governor to commute a death sentence, deciding in 1967 to move Calvin Thomas off death row because Thomas had serious brain damage.
Under former Gov. Pat Brown, Jerry Brown’s father, 35 death row inmates were executed. The elder Brown commuted the capital sentences of 20 others.
Jerry Brown has never faced the wrenching decisions that confronted his father over executions, and the issue also is new for Attorney General Xavier Becerra.
Becerra, now the top law enforcement officer in California, has testified that he supports the death penalty, but not “the way it is being executed,” and would enforce Proposition 66, the execution speed-up measure largely upheld by the state supreme court in August.
Prosecutors are expected to press Becerra to move quickly to overturn the injunctions preventing executions, but his role is to represent Brown’s Department of Corrections and Rehabilitation in the case, a Becerra media aide said.
Prosecutors, who sponsored Proposition 66, and crime victims also are considering trying to intervene in the two court cases preventing executions.
U.S. District Judge Richard Seeborg, an Obama appointee who is now presiding over the Northern California federal case that stopped California from executing, could allow crime victims or Proposition 66 sponsors to intervene, but he is not required to do so by law, said Erwin Chemerinsky, the UC Berkeley law school dean.
Voters narrowly approved the measure a year ago. The state Supreme Court ruling that permitted its enforcement became final only a few weeks ago, delayed by an unsuccessful request from challengers for the court to reconsider.
There are about 18 inmates who could immediately be executed because they have no appeals left. But these inmates have obtained federal stays to prevent their executions until the lethal injection case overseen by Seeborg is concluded.
For the stays to be lifted, Seeborg would have to decide that California’s new single-drug method of execution, once finalized, did not violate the U.S. Constitution’s ban on cruel and unusual punishment. Whatever he decides could then be appealed.California