Cruel, Inhuman and Degrading: California's Death Penalty

If all goes according to the State of California's plans, Albert Greenwood Brown will be executed Thursday in a newly outfitted death chamber at San Quentin prison [the 9th Circuit Court of Appeals intervened since this was first posted and remanded the case to the District Court for further proceedings, which makes it virtually certain the execution will be delayed (read Bob Egelko's reporting in the SFChron). I'll post later on the reasons for the stay]. Lawyers for Brown and the State of California are battling over California's method of execution through lethal injection (will it be one drug or three?), and the execution may well still be delayed further. But if and when California is able to execute Brown he will be have suffered not one capital punishment, but two.

Brown was convicted of kidnapping, raping, and murdering a 15 year old girl in a crime committed in 1980, and sentenced to death in 1982. That is a heinous crime worthy of the most severe punishment a society uses. In most of the countries of the world, and virtually all its democracies, that means life in prison. In the US, Japan, a few Caribbean democracies, and a lot of Islamic and Asian or African autocracies that means the death penalty. In California it means both. The point is not just that California juries can choose between life in prison and death, its that when they choose death, they are actually sentencing the prisoner to both life in prison and death by execution.

Consider that when he is executed, Brown will have spent some thirty years on death row awaiting execution. For most of the world, life in prison means, ten, twenty, in the extreme, possibly thirty years in prison before being released to some form of parole. So in California, a condemned person like Brown is sentenced to serve a prison sentence approximating the most extreme possible prison sentence in Europe, plus a lethal injection at the end of the wait. Life in prison, with the real prospect of dying behind bars and without the presence of love, is severe punishment. Adding to that an execution ritual in which the state will seize you in the midst of health and kill you is degrading and cannot help but reduce the humanity of those subjected to it and those who impose it. That is the true meaning of "inhuman and degrading" punishment in international law.

I consider the death penalty an unnecessary and thus inherently cruel punishment, but even if it is not, being forced to wait in circumstances that constitute extremely harsh punishment three decades under threat of death, and finally to be killed is to mock the very humanity of the condemned.

Having execution follow such a long imprisonment also defies all legitimate reasons for having a death penalty. Whatever deterrence power there is in such a sentence, comes from the years in prison, since most of the condemned will die of natural causes before their execution in California. The goal of retribution, demonstrating our moral outrage at the heinous treatment of the victim, is rendered hollow when the passage of decades means few recall the crime or the victim. And the objective of helping families to recover is actually reversed where the family of the victim endures years of waiting for a moment of justice, while being told that the real punishment is "delayed" and yet to come. Opponents and supporters of capital punishment have battled themselves to a kind of draw, leaving us with a legal institution that is a perversion in every sense of the term; managing to extract suffering from the condemned from the moment of its imposition, while denying that suffering any possibility of relieving the victims. Protecting the public does not require the execution. During his years locked in San Quentin, Brown has killed no known serious crimes. The public would have been equally protected had he received a life in prison sentence (even with parole, since it is rarely granted in such an aggravated case).

The reasons for California's uniquely lengthy wait for execution are complex, involving the absence of sufficient defense lawyers, the state's dilatory style of pursuing its legal path, and the existence of multiple levels of appeals. The key fact, however, is that nobody seriously believes the situation can be much improved short of spending millions and perhaps billions more on legal costs.

Californians should be outraged at this farce of justice to both victim and thecondemned. It is time to admit that capital punishment is just an expensive symbol, bandied about by politicians of both parties, to show they care about victims, while subjecting the very very few people executed to cruel, inhuman, and degrading punishment.

There is an alternative. Those people who commit the most heinous murders,in the most culpable way (they are not suffering mental illness, retardation, did it deliberately, etc.) should spend decades in prison, period. (I'll leave for another time whether that must require life without parole, or whether the possibility of parole after 25 or 30 years would be more appropriate). Under such a penalty, victims would know that a just and very serious punishment was beginning immediately following the trial (not decades later); convicted killers would know, following a year or two of appeals, that their punishment was final and irrevocable; and Californians would know that they were doing everything they can do to deter future murders and protect citizens from further acts of violence by the convicted. The tens of millions of dollars saved from the endless court battles we currently fight, could be used to hire more police officers and pay for more DNA testing of cold case evidence, so that more murders are actual solved and result in the conviction and punishment of the guilty.