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12:38 pm
Fri July 25, 2014

Are Opponents Of The Death Penalty Contributing To Its Problems?

Kevin Cooper was convicted of murdering a married couple and two children, and was sentenced to die.

That was back in 1985. Cooper is still awaiting execution on California's death row.

San Bernardino County District Attorney Michael Ramos, who is handling the case, blames the long delay on Cooper's multiple appeals in state and federal courts.

"This is all a big strategic plan to really manipulate the system to attack capital punishment, not just in California, but in the United States," Ramos says.

The death penalty is under considerable pressure, both from court decisions and a series of problematic executions, including one this week in Arizona. Six states have abolished the death penalty over the past seven years.

Death penalty supporters such as Ramos say this is no accident. They believe opponents intentionally toss sand in the gears of the execution process, and then complain that the system doesn't work.

"It's a delaying tactic that then allows them to scream it's unconstitutional because it's been delayed too long," Ramos says.

Defense attorneys dismiss this as nonsense. The problems with the death penalty, they say, were not created by its opponents.

"It's not the defense attorneys who are holding executions up," says Deborah Denno, a law professor at Fordham University. "Not by a long shot."

Blame For Delays

Last week, U.S. District Judge Cormac Carney found California's system of capital punishment unconstitutional because executions are delayed for too long and are "arbitrary" in terms of which condemned prisoners are ever actually executed.

Death penalty supporters argue that it's the killers — and their attorneys — causing most of the delays.

"Having done everything they can to cause the problem, they decry the problem," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, which defends victims' rights.

But many of the delays aren't caused by defense attorneys, rather the very lack of them, Denno says. In California, it can take years for a condemned prisoner even to be appointed counsel, and years more to wait for what is known as a post-conviction hearing.

"Even before a case gets to federal court, there's often more than 10 years of delays built into the system that don't have anything to do with what's brought from the defense," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo., which defends the condemned.

In the California case, Carney specifically looked at delays that were the fault of the state, not of the prisoner.

"What the judge expressly said, and what the defendant assumed as his burden of proof, was that the specific delays weren't this defendant's fault," says Franklin Zimring, a law professor at the University of California, Berkeley. "That was something the condemned man had to prove before he could get a remedy based on the delays."

Problems With Lethal Injection

In addition to traditional questions regarding innocence and adequacy of counsel, defense attorneys now will typically challenge a state's method of execution. Lethal injections, which for years had a more anodyne reputation than gas chambers or the electric chair, have become problematic in and of themselves.

"Botched lethal injection executions have offered the same kind of negative publicity as other methods," Zimring says.

Scheidegger, the foundation attorney, says death penalty opponents, having successfully promoted lethal injections at the expense of older methods by portraying it as more humane, are now undermining states' use of drugs through their legal challenges.

Drugmakers in European countries that have abolished the death penalty are also blocking U.S. states from using their products in executions.

"There is an inherent tension here," NPR's legal affairs correspondent Nina Totenberg said on All Things Considered. "The more pressure there is to do this the right way from anti-death penalty lawyers, the more secretive states get because they can't actually carry out their mandate in the most humane way anymore."

But Denno, the Fordham professor, says there were problems with lethal injections long before states ran out of their preferred barbiturates.

"Botched executions have existed from the very beginning [of the use of lethal injection], since 1982," she says.

Scrambling For A Solution

Denno notes that the dosage of the sedative midazolam, which many states are now using for executions, has ranged from 10 milligrams to 500 milligrams.

"One state has a botched execution, so they use more or less of the drug because they don't know what's causing the problems," she says. "Every time there's a problem, states have a little bit more of a challenge saying why they would ever use midazolam again, when it has such a bad record."

But if states seem to be improvising in terms of method — and doing their best to keep the sources of their drugs secret — that's at least in part because they know they're almost certain to face a legal challenge, suggests Robert Blecker, a professor at New York Law School.

"I've been at national and international conferences, as the lone death penalty supporter, where devout abolitionists openly exhort each other to gum up the works and delay," he says.

Luby says defense appeals aren't frivolous but rather serious attempts at making sure the irrevocable death penalty is carried out justly and properly. He notes that many sentences are vacated on appeal and contends that challenges against lethal injection have been vindicated by the many problems seen just this year.

In the Arizona case, the Supreme Court had lifted the stay of execution granted by an appellate court based on death row inmate Joseph Wood's right to know more the state's drug sources and methodology.

"One can only hope that the courts, including the Supreme Court, will have a bit of buyer's remorse about having accepted the state's argument, based on what we've seen," Luby says.

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