For more than a decade, California has sentenced convicted murderers to death without having a legal method of actually executing them. While courts tossed out the former lethal-injection protocol on constitutional and procedural grounds, juries continued to issue death sentences — more than 180 since executions were halted, which has swelled California's death row to 747 people, the largest in the nation.
That state of limbo has let Californians have their cake and eat it, too, allowing them to impose the harshest legal penalty available for murder without having to deal with the moral repercussions of putting someone to death. But the status quo is on the verge of changing, and what has been a merely theoretical punishment could soon become real. The Brown administration will, over the next few weeks, either reject or finalize a new lethal-injection protocol. If approved, the protocol would put the state on the road to resuming executions (although it too is expected to be challenged by the ACLU and other anti-death-penalty groups).
The state used to rely on three drugs in succession to knock a condemned inmate senseless, induce paralysis and then stop the heart. The proposed new protocol would use only one of four possible drugs selected on a "case-by-case basis, taking into account changing factors such as the availability of a supply" of amobarbital, pentobarbital, secobarbital and thiopental.
But death penalty critics, such as the ACLU, point out that pharmaceutical companies have stopped producing or have refused to supply those drugs to prisons in order to avoid their use in executions. That ban has led other states to go to ludicrous extremes to obtain execution drugs, including sending corrections officials with wads of cash to compounding pharmacies in other states to buy the drugs on the down-low, and illegally importing the drugs from overseas vendors. How exactly California prison officials will get around that supply problem is a question mark.
There is a better path for the state to take than futzing around with revised protocols that will be tied up in court for years by death penalty opponents, or adopting a protocol that will be unworkable because it relies on drugs the state will find nearly impossible to buy.
The decision on the final rule will come as voters consider competing initiatives on the November ballot to scrap the abominable practice altogether (Proposition 62) — which we strongly support — or to speed up the appeals process and make other changes that could increase the chances of an innocent person being put to death (Proposition 66). Californians have been divided on the issues, with a plurality — but not a majority — in a recent Field poll wanting to end the death penalty, while more than a third supported the measure to speed it up. Less than a quarter opposed Proposition 66, and more than four in 10 voters — a plurality — were undecided.
But when asked separately whether they would prefer a murder sentence be life without parole or death, 55% picked life without parole. Does that mean Proposition 62 will pass? No — but it does evidence the struggles that voters are going through, as does the massive uncertainty over what to do with Proposition 66.
Maybe this will help: As heinous as murder is, and as gruesome as some of the most publicized crimes might be, killing the perpetrators is in itself an immoral act. As a society, and as a criminal justice system, we don't rape rapists, burglarize burglars or batter batterers. Execution of murderers is an outlier in how we treat convicted criminals, and it is a moral failure to continue to do so.
And the key word there is "convicted." The Death Penalty Information Center counts 156 people nationwide who were exonerated of their crimes after being sentenced to death. Some were exonerated even though they had given confessions — admissions that were coerced or conned out of suspects with intellectual disabilities. In other cases, prosecutors manipulated the system, witnesses lied or were mistaken, or forensic evidence was wrongly analyzed or misused.
So how many of the 747 people on California's death row are actually innocent of the crimes for which they might be put to death? It's impossible to know, but one study found that at least 4% of condemned inmates nationwide aren't guilty of the murders for which they are being held accountable. That translates to about 30 people who probably were wrongfully convicted sitting on California's death row. A system that flawed should be abolished.
For a complete list of The Times' endorsements for the Nov. 8 ballot, go to latimes.com/endorsements.